author: STONE, J.

text:
    Dennis DIEL, Plaintiff-Appellee v. DEFENDERS SECURITY CO. and Travelers Property Casualty Insurance Company, Defendants-Appellants
    No. 51,390-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      ROBERT A. DUNKELMAN, TREY WARD CARTER, Counsel for Appellants
    CURTIS DANIEL STREET, Counsel for Appellee
    Before STONE, COX, BLEICH (Pro Tempore), JJ.
   STONE, J.

11 Appellee, Dennis Diel, began receiving indemnity benefits and necessary medical expenses after he injured his back while working for Defenders Security Company. Thereafter, the physician treating him for his back requested authorization for a lumbar discography. The request was denied by his workers’ compensation carrier, Travelers Property & Casualty Company of America, and thereafter, the Office of Workers’ Compensation. Appellee appealed to the WCJ, and after a hearing, the WCJ reversed the decision of the OWCA and granted authorization for the lumbar discography. For the ensuing reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

' On August 10, 2015, Dennis Diel (“Diel”) suffered a back injury while working for Defenders Security Company (“Defenders”). As a result of Diel’s injuries and continuous pain, Diel’s treating physician, Dr. Bernie McHugh (“Dr. McHugh”), filed a form 1010 requesting authorization for Diel to undergo a lumbar discography (“discogram”). The request was sent to Defenders’ insurer, Travelers Property and Casualty Company of America (“Travelers”). Travelers deemed the discogram unnecessary and denied the request.

Dr. McHugh timely filed a form 1009 to request a medical review of the claim with the Office of Workers’ Compensation Administration (“OWCA”). The OWCA rendered a decision denying the discogram. This decision was made by Dr. Kevin Martinez (“Dr. Martinez”), who was ^designated as “Assistant Medical Director, ad hoc.” Diel timely filed a form 1008 Disputed Claim for Compensation, seeking to have the denial reviewed by the Workers’ Compensation Judge (“WCJ”). Defenders and Travelers (jointly, “Defendants”) filed exceptions of no subject matter jurisdiction and prematurity arguing Dr. Martinez was a private physician and not a statutorily qualified “Medical Director” or “Associate Medical Director,” as required by La. R.S. 23:1203.1 (“Article 1203.1”).

In the midst of these proceedings, Travelers had Diel examined by Dr. Donald Smith (“Dr. Smith”), who opined Diel could return to work. Since Dr. Smith’s opinion contradicted Dr. McHugh’s, Defendants scheduled an independent medical examination (“IME”) for Diel. Diel filed a motion for a protective order to have any such examination stayed until the WCJ ruled on whether the discogram was necessary. Thereafter, the WCJ overturned Dr. Martinez’s ruling and ordered the dis-cogram be done. Additionally, the WCJ denied Defendants’ exceptions, finding there was no evidence indicating Dr. Martinez was not a full-time physician with the OWCA, or that he was engaged in private practice during the time he acted as ad hoc Assistant Medical Director.

At some point, the OWCA tendered a letter wherein it stated Dr. Martinez was not a full-time employee of the OWCA. Consequently, ■ Defendants filed a motion for a new trial on the subject matter jurisdiction and prematurity issues. The WCJ granted the motion for new trial. After hearing and reviewing the newly presented evidence, the WCJ maintained its Isprevious ruling, ordering the discogram be done. The WCJ also granted Diel’s protective order, ruling the IME would not take place until the results of the disco-gram were received and acted upon. Defendants now appeal the WCJ’s judgment denying its exceptions and granting Diel’s protective order.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., 2009-0520 (La. 10/20/09), 23 So.3d 275; Hill v. IASIS Glenwood Regional Med., 50,531 (La. App. 2 Cir. 05/18/16), 195 So.3d 536, writ denied, 2016-1357 (La. 11/07/16), 209 So.3d 104. Under this rule, the reviewing court does not decide whether the WCJ was right or wrong, but only whether its findings are reasonable. Id. When there are two permissible views of the evidence, the WCJ’s choice between them can never be manifestly erroneous or clearly wrong. Id. The reviewing court is emphatically not permitted to reweigh the evidence or reach its own factual conclusions from the record. Marange v. Custom Metal Fabrica tors Inc., 2011-2678 (La. 07/02/12), 93 So.3d 1253; Hill, supra.

DISCUSSION

Exceptions and Burden of Proof

Defendants argue the WCJ erroneously denied their declinatory exception of no subject matter jurisdiction and dilatory exception of prematurity. According to Defendants, the WCJ lacked jurisdiction to review the ruling of the OWCA because Dr. Martinez, an ad hoc assistant medical director, was not a “Medical Director” or “Associate Medical Director,” as required by Article 1203.1. Additionally, because no statutory | ¿medical director rendered a decision that the WCJ could review, the matter was prematurely filed with the WCJ,

Alternatively, Defendants argue if this Court determines the WCJ did have subject matter jurisdiction and the matter was not premature, Diel did not prove by clear and convincing evidence that Dr. Martinez’s decision to deny the discogram was not in accordance with the Medical Treatment Guidelines (“MTGs”).

La. R.S. 23:1203.1(J) provides in pertinent part:

After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.

Additionally, La. R.S. 23: 1203.1.1 states the following:

A. The director shall hire a medical director and an associate medical director to render decisions on disputed cases filed pursuant to R.S. 23:1203.1(J).
B. The medical director and associate medical director shall be full-time public employees of the office of workers’ compensation administration and shall not engage in the practice of medicine outside the office.

The inquiry before this Court rests upon how the WCJ should proceed after determining an OWCA decision was not rendered by a statutorily defined medical director. This matter presents a novel question to this circuit, and to date, appears to have been addressed by only one other circuit. In Spikes v. Louisiana Commerce & Trade Ass’n, 2013-919 (La. App. 3 Cir, 07/02/14), 161 So.3d 755, the plaintiff injured her back at work, and her doctor referred her to a psychologist, Dr, Quillin. Dr. Quillin submitted requests to the plaintiffs employer’s insurer for treatment, which were denied. He then appealed the denials with the OWCA, and the OWCA denied the appeals. The WCJ held the decisions issued by the OWCA that were rendered by a physician other than the medical director did not comply with the provisions of the MTGs. On appeal, the third circuit found no error with the WCJ’s determination. The third circuit concluded that the clear and convincing standard of review did not apply to Dr. Quillin’s appeals to OWCA or to the present appeal, stating that they would review the record in its entirety to determine whether the record reflected “a reasonable basis for the WCJ’s decision.”

In the matter sub judice, the WCJ agreed with Defendants that Dr. Martinez’s decision denying Diel’s discogram was invalid because Dr. Martinez was not a Medical Director or an Associate Medical Director, as contemplated by La. R.S. 23:1203.1.1 (“Article 1203.1.1”). However, relying on Spikes, the WCJ found it did have subject matter jurisdiction, Diel’s WCJ filing was not premature, and Diel’s discogram was necessary. The WCJ awarded Diel’s discogram. Likewise, this Court is also inclined to adhere to the third circuit court’s ruling in Spikes. We find no error with the WCJ’s determination that the decisions of the OWCA and Dr. Martinez did not comply with Article 1203.1.1 or the MTGs, and conclude the clear and convincing standard of review does not apply to Dr. McHugh’s appeal to the OWCA or to the present appeal. Accordingly, this Court must make a |fidetermination as to whether a reasonable basis exists for the WCJ’s decision to grant the discogram.

The MTGs provide, in pertinent part:
d. Provocation Discography
i. Description. Discography is an accepted, but rarely indicated, invasive diagnostic procedure to identify or refute a discogenic source of pain for patients who are surgical candidates!-]
* * *
iii. Pre-conditions for provocation discography include all of the following:
a.A patient with functionally limiting, unremitting back and/or leg pain of greater than four months duration in whom conservative treatment has been unsuccessful and in whom the specific diagnosis of the pain generator has not been made apparent on the basis of other noninvasive imaging studies (e.g., MRI, CT, plain films, etc.). It is recommended that discography be reserved for use in patients with equivocal MRI findings, especially at levels adjacent to clearly pathological levels!-]
b. Psychosocial Evaluation has been completed!-]
c. Patients who are considered surgical candidates!-]

Diel testified that after injuring his back at work, he was under the care of a chiropractor for at least 14 weeks. However, after continuous treatments, his pain levels did not decrease so the chiropractor referred him to a neurosurgeon, Dr. McHugh. Diel testified that prior to referring him to Dr. McHugh, the chiropractor obtained numerous MRIs and X-rays. Diel also stated he was taking several medications; however, his pain had not diminished. Diel further stated ■ he and Dr. McHugh discussed the possibility of him having back surgery. On cross-examination, Diel indicated he was undergoing pain management and physical therapy, and that he had received one epidural shot for the injury.

17The WCJ determined that based on Diel’s testimony and medical reports, the MTGs, and Dr. Martinez’s written explanation for denying the discogram, Diel met the requirements for a discogram. The WCJ found that Diel had undergone four months of unsuccessful conservative treatment and there was no specific diagnosis of his pain generator because Diel’s medical reports indicated his pain could potentially be originating from any one of three levels. As it pertained to the psychological aspect of the discogram, the WCJ noted it could not find “any medical evidence where the treating physician felt that the symptoms that [Diel] is complaining of is not correlating with the complaints or with [the physician’s] finding.”

Based on a review of the record, we find there was a factual basis for the WCJ’s reversal of Dr. Martinez’s decision. Diel’s MRI indicated his pain could be coming from a small disk herniation at L5/S1 with mild compression of the fecal sac and with mild spinal canal stenosis, a disc bulge with facet joint disease bilaterally at the L4/5 level, or a mild disc bulging and facet joint disease at L3/4. Diel’s chiropractic care, physical therapy, and medications have proven to be unsuccessful in treating his pain, and his treating physician has stated Diel may require surgery to relieve him of the continuous and ongoing pain. Thus, the WCJ’s conclusion that Diel’s circumstances satisfied the requirements necessary for a discogram is reasonable.

Protective Order

Defendants argue the WCJ erroneously granted Diel’s motion for a protective order. It appears Defendants scheduled the IME in an attempt to have Diel return to work, without giving him the discogram. Ostensibly, if the discogram identifies Diel’s pain generators and surgery is required, he [«will either not be able to return to work or will be very limited in the scope of his work, and thus the IME could prove unnecessary. The protective order prevents Defendants from denying Diel’s medical treatment and sending him back to work prematurely. We find no error in the WCJ’s decision to grant Diel’s protective order, pending the outcome of the discogram.

CONCLUSION

For the foregoing reasons, the WCJ’s judgments denying the Defendants’ exceptions, ordering the discogram, ■ and granting Diel’s protective order, are affirmed. Costs of this appeal are assessed to Defendants.

AFFIRMED.

BLEICH, J. (Pro Tempore), concurs in the result.

      . At the time of Dr. McHugh’s form 1009 filing, the prior appointed Medical Director had resigned and the OWCA had not yet found a replacement. Instead, the OWCA employed physicians on an ad hoc basis to review the form 1009 appeals,


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Timothy THOMAS, Appellant
    No. 51,346-KA
    Court of Appeal of Louisiana, Second Circuit.
    June 21, 2017

      LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    TIMOTHY THOMAS, Pro Se •
    ' JAMES E. STEWART, SR., District Attorney, ROSS S. OWEN, REBECCA ARMAND EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS,; PITMAN, and BLEICH (Pro Tempore), JJ.
   PITMAN, J.

| ^Defendant Timothy Cardell Thomas was charged with one count of second degree murder in violation of La. R.S. 14:30.1. After a bench trial, he was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence. No motion to reconsider sentence was filed. Gn appeal, Defendant challenges the trial court’s denial of his motion for continuance, filed on July 13,2016. Defendant also challenges the timeliness of his prosecution. For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS

In September 2009, Waco Collins traveled from Shreveport, Louisiana, to Dallas, Texas, to purchase several kilograms of cocaine from a drug dealer. A dispute about the price arose during the transaction, with the dealer demanding several thousand dollars more than the originally agreed-upon price. Instead of paying the higher price, Collins had two of his associates, Gerald Needham and Shannon Gol-ston, rob the dealer and abscond with the drugs. Upon returning to Shreveport, Collins got into a disagreement with Golston over the drugs, and Golston thi-eatened to kidnap and kill Collins. At some point after the disagreement, Collins borrowed a Glock pistol from Defendant.

On September 14, 2009, Collins went to Defendant’s home between 7:30 p.m. and 10:00 p.m. and asked him for a ride. Defendant agreed and drove Collins to a store in his black truck. At the store, Collins and Defendant switched from the truck to a Mustang and, with Defendant still driving, went to Golston’s apartment complex. Upon arriving, Collins ^placed a plastic trash bag over his head, walked into Gol-ston’s apartment and, using the gun he had borrowed from Defendant, shot Gol-ston from behind in his right shoulder and in the head, killing him. Defendant remained in the vehicle during the shooting, but waited for Collins to return before he drove away. After they left the scene of the shooting, Defendant drove Collins to Champion Lake, where Collins threw the gun and the gun magazine into the lake. The police were called to Golston’s apartment complex, but no arrests were made at the time.

The case remained unsolved until 2012, when a suspect in a different homicide informed the police that Defendant and Collins were involved in Golston’s death. Defendant was subsequently arrested and questioned by police. He waived his Miranda rights and confessed his involvement in Golston’s death. Defendant and the police drove to Champion Lake where police divers retrieved the gun. Defendant admitted to owning the gun and stated that he had given it to Collins about a week prior to the shooting. When asked why he helped Collins, he stated that Collins was a childhood friend. Defendant also admitted to knowing that “this day,” i.e., his arrest, would come.

On May 7, 2012, Defendant filed a motion for discovery, bond reduction, preliminary examination and a premature motion for a bill of particulars. On June 11, 2012, Defendant was charged by grand jury indictment with the second degree murder of Golston. The defense did not file a motion to dismiss the earlier premature motion for bill of particulars. On June 19, 2012, after waiving formal arraignment, Defendant pled not guilty. On November 12, 2012, Defendant’s counsel waived any time Isdelays. On May 22, 2014, the state filed an answer to the request for discovery, bill of particulars and notice under La. C. Cr. P. art. 768.

During the course of the prosecution, numerous delays occurred and requests for continuances were filed, including three joint motions for continuance filed on December 22, 2014, February 2, 2015, and February 25, 2016. The trial date was finally set for July 25, 2016. On March 22, 2016, Defendant filed a pro se motion to quash and claimed that the two-year time limit to prosecute had expired.

A hearing was held on June 27, 2016, at which Defendant invoked his right to self-representation and waived his right to a jury trial. The trial court appointed the attorney who had been representing him, David McClatchy, as standby counsel. A hearing was held on the motion to quash, and it was denied.

On July 13, 2016, Defendant filed a motion for continuance and claimed that, in light of his recent decision to represent himself, a continuance was necessary due to the complexity of the case. He alleged there were over 600 pages of discovery, a confession that included significant other-crimes evidence and grand jury testimony that the state moved to disclose because it was potentially exculpatory. He claimed that he was not currently adequately prepared for trial. The motion for continuance was denied.

On July 25, 2016, Defendant filed a motion to suppress, which was denied. He also made an oral motion for continuance, again arguing that the time limit for prosecution had expired, which was á reiteration of the motion decided by the trial court just the previous month. The motion was submitted and denied. Defendant then made an oral motion to allow David RMcGlatchey to represent him as counsel, and the trial court granted that motion.

The bench trial commenced and Defendant was found guilty as charged. A motion for post-verdict judgment of acquittal was filed, and it was denied by the trial court. On July 28, 2016, Defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence.

The instant appeal followed.

DISCUSSION

Motion for continuance

Defendant argues that the trial court abused its discretion in denying his motion to continue given his decision to represent himself and the complexity of the ease. He states that there are over 600 pages of discovery, a confession that included significant other-crimes evidence and grand jury testimony that the state moved to disclose because it was potentially exculpatory. He contends that, because he was facing an imminent trial for which he was not adequately prepared, he was forced to surrender his right to represent himself and proceed to trial with counsel. He argues that forcing him to proceed to trial with counsel, despite his clearly expressed desire to represent himself, constitutes an abuse of discretion.

- The state argues that the trial court was well within its discretion to deny the motion for continuance. After choosing to represent himself, Defendant had a month to prepare for trial. The state contends that a month to prepare for trial is sufficient and Defendant’s claim that he needed additional time for such a “complex” case is without merit. Several- days prior to trial, the state met with Defendant and explained exactly what it ^planned to present, i.e., four witnesses and his own confession of his part in the shooting. Finally, the state argues that Defendant’s motion to continue was merely a dilatory tactic.

Upon a written motion at any time and after a contradictory hearing, the trial court may grant a continuance, but only upon a showing that such a motion is in the interest of justice. La. C. Cr. P. art, 707; State v. Harris, 44,402 (La. App. 2 Cir. 6/24/09), 20 So.3d 1121, writ denied, 09-2303 (La. 4/23/10), 34 So.3d 271. Additionally, the court has discretion to grant a timely filed motion for a continuance “in any case if there is good ground therefor.” La. C. Cr. P. art. 712. Because the decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, a reviewing court will not disturb the trial court’s determination absent a clear abuse of discretion. State v. Free, 48,260 (La. App. 2 Cir. 11/20/13), 127 So.3d 956, writ denied, 13-2978 (La. 5/30/14), 140 So.3d 1174. The denial of a motion for continuance on the ground of counsel’s lack of preparedness does not warrant a reversal unless- counsel demonstrates specific prejudice resulting from the denial or the preparation time is so minimal as to call into question the basic fairness of the proceeding. State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832.

The Sixth Amendment to the U.S. Constitution, as well as La. Const. art. I, §. 13, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Carpenter, 390 So.2d 1296 (La. 1980); State v. Shumaker, 40,275 (La. App. 2 Cir. 10/28/05), 914 So.2d 1156.

|f,As a general proposition, a person accused in a criminal trial has the right to counsel of his ■ choice. La. Const. art. I, § 13; State v. Leggett, 363 So.2d 434 (La. 1978); State v. Anthony, 347 So.2d 483 (La. 1977). The defendant in a criminal trial may not, however, by a last-minute change of counsel, force a postponement. State v. Moore, 40,311 (La. App. 2 Cir. 1/13/06), 920 So.2d 334, writ denied, 06-2267 (La. 6/1/07), 957 So.2d 167; State v, Leggett, supra; State v. Anthony, supra. The Louisiana Supreme Court has frequently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when the defendant is dissatisfied with his present attorney, but had ample opportunity to retain private counsel. State v. Moore, supra; State v. Leggett, supra; State v. Anthony, supra. Generally, a reviewing court will not reverse a conviction even on a showing of an improper denial of a motion for a continuance, absent a showing of specific prejudice. State v. Free, supra.

The trial court did not abuse its discretion by denying Defendant’s motion for continuance because granting it was neither in the interest of justice, nor was it necessary for additional preparation. A review of the record shows that Defendant’s case had been pending for four years at the time he elected to represent himself. The case was set for trial on five separate occasions prior to actually commencing on July 25, 2016; and, in at least three of those instances, trial was upset due to joint motions for continuance.

On June 27, 2016, after Defendant invoked his right to self-representation, the trial court appointed Defendant’s former counsel to operate as his standby counsel and informed Defendant that the trial was set for July 25, 2016. Instead of requesting a continuance during that hearing, [^Defendant elected to wait until July 11, 2016, approximately two weeks before trial, to request a continuance, .claiming additional time was needed to adequately prepare. ...

We find Defendant’s claim that , he needed additional time for trial preparation to be without merit. Prior to commencing trial, the state met with him to explain which witnesses it intended to call and what evidence it would present at trial. Such evidence included two taped confessions he made to police after knowingly and voluntarily waiving his Miranda rights. The state also eliminated certain extraneous witnesses, as well ás one police interview containing other-crimes evidence, in an effort to simplify the case and accommodate his pro se status. Although Defendant claims he had less than 30 days to prepare for trial, in reality, he has spent the last four. years preparing for trial. Importantly, he was not alone in his preparation. The stand-by counsel appointed by the trial court to assist him was his former counsel who had handled the case since the institution of prosecution in 2012 and was very familiar with the facts of the case and the evidence.

Given the length of time his case had been pending and Defendant’s previous attempt to quash his prosecution, it appears the motion for continuance was a dilatory tactic. Further, Defendant failed to show he suffered specific prejudice from the denial, and the evidence against him was overwhelming. For these reasons, there was no abuse of the trial court’s discretion in its denial of Defendant’s motion for continuance. This assignment of- error lacks merit.

IsMotion to quash

In his pro se brief, Defendant argues that the trial court erred when it failed to require the state to establish that the ease was brought to trial within the two-year time limitation found in La. C. Cr. P. art. 578(A)(2). He contends that, by the time of the trial, more than two years had passed since the institution of prosecution against him. As previously stated, he raised this issue in a pretrial motion to quash, which was denied after a hearing held on June 27, 2016. On July 25, 2016, he once again raised this issue orally, reurging that the two-year time limit had passed within which the state had to bring his case to trial. The trial court upheld its previous ruling.

A motion to quash is the proper procedural vehicle when a defendant alleges that the time limitation for the commencement of trial has expired. La. C. Cr. P. art. 532(7); State v. Barnett, 50,213 (La. App 2 Cir. 8/12/15), 174 So.3d 748.

When a defendant has brought an apparently meritorious motion to quash based upon prescription, the state bears-a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended so that the time limitation has not yet expired. State v. Morris, 99-3235 (La. 2/18/00), 755 So.2d 205; State v. Lathan, 41,855 (La. App. 2 .Cir. 2/28/07, 953 So.2d 890, writ denied, 07-0805 (La. 3/28/08), 978 So.2d 297. An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute. State v. Barnett, supra. Once the cause of the interruption disappears, the time limit begins anew. La. C. Cr. P. art. 579(B). Time limits are suspended when a defendant files a motion to quash or other preliminary plea. La. C. Cr. P. art. 580. When the |flprescriptive period is suspended, the relevant period is not counted, and the running of the time limit resumes-when the court rules on the motions. State v. Barnett, supra.

Appellate courts apply an abuse of discretion standard in reviewing a district court’s ruling on a motion to quash. State v. Love, 00-3347 (La. 5/23/03), 847 So.2d 1198; State v. Stanley, 49,683 (La. App. 2 Cir. 1/14/15), 161 So.3d 1034.

After the trial court rules on the motion, the state has either the remainder of the time limitations or a minimum period, of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580; State v. Jackson, 40,376 (La. App. 2 Cir. 12/14/05), 916 So.2d 1274, writ denied, 060442 (La. 9/22/06), 937 So.2d 376.

La. C. Cr. P. arts. 578 and 580 govern the running of time within which a defendant must be brought to trial. La. C. Cr. P. art. 578(A)(2) provides that the trial of non-capital felonies must be held within two years from the date of the institution of prosecution. “Institution of prosecution” means the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial. La. C. Cr.,P. art. 934(7).

The purpose of La. C. Cr. P. art. 578 is to enforce a defendant’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284; State v. McDonald, 30,854 (La. App. 2 Cir. 8/19/98), 718 So.2d 542. When a defendant files a preliminary plea, however, the two-year time period established by La. C. Cr. P. art. 578 is suspended. La. C. Cr. P. art. 580.

| inFor purposes of La. C. Cr. P. art. 580, a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial, which includes motions to quash, motions to suppress, applications for discovery, bills of particulars and motions for continuances. State v. Allen, 03-2815 (La. 4/23/04), 871 So.2d 1097; State v. Lathan, supra. A suspension lasts from the date a qualifying motion is filed until the date the trial court rules on the motion and that relevant time period is not counted toward the two-year time limitation. State v. Lathan, supra. After the trial court rules on the motion, the state has either the remainder of the time limitation or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580; State v. Lathan, supra; State v. Jackson, supra.

In State v. Oliver, 34,292 (La. App. 2 Cir. 5/9/01), 786 So.2d 317, this court found:

Obviously a motion filed before formal institution of prosecution cannot suspend the prescriptive period for bringing a defendant to trial because the prescriptive period has not begun to run. Additionally, such motions are subject to dismissal by either party. On the other hand, if the motions have not been dismissed when prosecution is instituted by the filing of a bill of information or by indictment, then the defect of prematurity is cured and the motions become preliminary pleas. When prescription is suspended, the relevant period is not counted toward the two-year time limitation. The suspension lasts until the court rules thereon. State v. Cranmer, 306 So.2d 698 (La.1975); State v. Pratt, 32,302 (La. App. 2 Cir. 9/22/99), 748 So.2d 25.

In State v. Jackson, supra, this court expanded its holding in Oliver, supra, by finding that the filing of the state’s answer to an outstanding motion for bill of particulars negated the trial court’s need for ruling on the motion, and suspension of the prescriptive period ends upon the filing of said answer.

| nIn the case sub judice, Defendant was charged with second degree murder, a non-capital felony. Because the prosecution in this case was instituted on June 11, 2012, the state had two years, until June 11, 2014, in which to go to trial, unless the time limits were interrupted or suspended.

A review of the record for timeliness issues shows that several events occurred to suspend the running of the two-year time limitation. First, a premature motion for bill of particulars, filed on May 7, 2012, immediately suspended the running of prescription because the defense did not dismiss the premature motion after the filing of the grand jury indictment. Failure to dismiss the motion after institution of prosecution cured the defect of prematurity and suspended prescription upon the filing of the indictment. This suspension could not end until either the trial court ruled upon the motion or the state filed a response, whichever occurred first. The state filed an answer on May 22, 2014, and the running of prescription resumed. As a result of this suspension, prescription in this case did not begin to run until May 22, 2014, giving the state until May 22, 2016, to begin Defendant’s trial.

Second, three joint motions for continuance, filed on December 22, 2014, February 2, 2015, and February 25, 2016, respectively, also extended the state’s time to bring the case to trial. As previously noted, after the trial court rules on the motion, the state has either the remainder of the time limitation or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. Therefore, the thud joint motion provided the state with at least another year, until February 25, 2017, to bring the case to trial. The trial was held on July 25, 2016, well within the two-year time limitation to try the case.

|12A reading of the transcripts from the hearings held on June 27, 2016, and July 25, 2016, demonstrates that the trial court was familiar with the facts of the case and was correct in denying Defendant’s motions to quash for timeliness.

This assignment of error is also without merit.

Errors Patent

An error patent review reveals that the trial court failed to state on the record at the sentencing hearing that Defendant’s sentence for second degree murder was to be served at hard labor. Because La. R.S. 14:30.1 requires that the sentence be served at hard labor, allowing no discretion to the trial court, the trial court’s omission was harmless error and requires no corrective action. State v. Modisette, 50,846 (La. App. 2 Cir. 9/28/16), 207 So.3d 1108.

Finally, Defendant was not properly advised of the delays within which to apply for post-conviction relief. We now advise Defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under La. C. Cr. P. art. 930.8. State v. Smith, 50,342 (La. App. 2 Cir. 1/13/16), 184 So.3d 241.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Timothy Thomas, are affirmed.

AFFIRMED.


author: BLEICH, J. (Pro Tempore)

text:
    STATE of Louisiana, Appellee v. Audy W. KEITH, Jr., Appellant
    No. 51,389-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      LOUISIANA APPELLATE PROJECT, By: Chad Ikerd, Counsel for Appellant
    JAMES E.. STEWART, SR., District Attorney, EDWIN L. BLEWER, III, SUZANNE M. WILLILAMS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, MOORE, and BLEICH (Pro Tempore), JJ.
   BLEICH, J. (Pro Tempore)

11 This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. In 1998, the defendant, Audy W. Keith, Jr., pled guilty to second degree murder, a violation of La. R.S. 14:30.1, and- received the statutorily mandated sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Following the per curiam decision in State v. Montgomery, 2013-1163 (La. 06/28/16), 194 So.3d 606 (“Montgomery”), the trial court vacated Keith’s original, sentence and re-sentenced him to life imprisonment at hard labor, with the benefit of parole eligibility and credit for time served. Keith now appeals his sentence, which we affirm for the following reasons.

FACTS

On January 30, 1996, Audy Keith, then 16 years old, met with Danny Irish and Kristee Kline at their trailer in Caddo Parish, Louisiana. Irish was in need of money and formulated a plan to rob and murder Russ Rowland, who owned the trailer. Irish called Rowland from a payphone and asked him to come by the trailer to collect overdue rent. Keith was enlisted to help carry out this plan. When Rowland arrived,' Keith shot him in the abdomen with a 12-gauge shotgun, and Rowland fell on his back. Then, Irish shot Rowland with a rifle and dragged his body into the trailer. Keith took Rowland’s wallet from his truck and gave it to Irish, while Kline cleaned up the' blood on the carpet.

12Keith and Irish were both charged with first degree murder by grand jury indictment.- Keith initially pled not guilty to the charges; however, to avoid the death penalty, he withdrew that plea. In exchange for the lesser charge of second degree murder, Keith agreed to plead guilty and testify against Irish. The trial court informed Keith of his constitutional rights,, accepted the guilty plea, and sentenced him to the mandatory sentence for second degree murder of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

In 2013, in light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), Keith filed a motion to correct his illegal sentence and requested a resen-tencing hearing. Miller held that a mandatory sentencing scheme that denies parole eligibility for those convicted of a homicide committed while the offender was a juvenile violates the United States Constitution’s Eight Amendment prohibition against cruel and unusual punishment. In 2016, Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), held that Miller applied retroactively to defendants whose convictions and sentences were Anal prior tó the decision in Miller, Keith was resentenced in accordance with Montgomery in which the Louisiana Supreme Court directed that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which were enacted by the Louisiana legislature to comply with Miller, should also be applied to cases being resentenced retroactively on collateral review.

Although Keith was not granted a resen-tencing hearing, his sentence was vacated, and he was resenteneed to life imprisonment at hard labor, with parole eligibility and .credit for time served. Keith filed a motion to reconsider his new sentence, which was denied, and this appeal followed.

^DISCUSSION

In his appeal, Keith urges three assignments of error. In his first assignment of error, Keith argues that the legislature has sole authority to create sentencing ranges for crimes, and the Louisiana Supreme Court was not authorized to establish the parameters of life imprisonment at hard labor, with or without parole eligibility in juvenile homicide cases. Additionally, Keith argues his new sentence violates his constitutional protections against ex post facto laws, and claims entitlement to the penalty for the next lesser included offense, citing State v. Craig, 340 So.2d 191 (La. 1976).

In Miller, supra, the United States Supreme Court did not establish a categorical prohibition against life imprisonment at hard labor, without parole for juvenile homicide offenders; instead, Miller requires the sentencing court to consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Williams, 2012-1766 (La. 03/08/13, 108 So.3d 1169. The Miller decision drew a distinction between children whose crimes reflect transient immaturity and those few whose crimes reflect irreparable corruption. Miller, supra, 567 U.S. at 479-80, 132 S.Ct. at 2469; State v. Calhoun, 51,337 (La. App. 2 Cir. 05/17/17), 222 So.3d 903, 2017 WL 2131500.

The Louisiana legislature declined to enact proposed amendments to the law during the 2016 legislative session following Montgomery v. Louisiana, supra. Therefore, upon remand, the Louisiana Supreme Court applied existing laws, and directed lower courts to do the same, stating:

Therefore, in the absence of further legislative action, the previously enacted provisions should be used for the resen-tencing hearings that must now be conducted on remand from the United States Supreme Court to determine whether Henry Montgomery, and other prisoners like him, will be granted or denied parole eligibility. Certainly, the legislature is free within constitutional contours to enact further laws governing these resentencing hearings but in the absence of such legislation, this court must provide guidance to the lower courts on the pending cases.

Montgomery, — U.S. at -, 136 S.Ct. at -, 193 L.Ed.2d at 608.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. Massey v. Louisiana Dep’t of Pub. Safety & Corr., 2013-2789 (La. 10/15/14), 149 So.3d 780, 783. For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:30.1 provides for a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

The constitutional ex post facto clauses prohibit the legislature from passing a law that (1) imposes punishment for an act that was not punishable at the time the act was committed, and (2) imposes a more severe punishment. U.S. Const. art. I, § 10; La. Const. art. I, § 23; Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed. 2d 17 (1981). An ex post facto inquiry determines whether the retroactive application of a law increases the defendant’s potential punishment by prolonging incarceration. Massey, supra. To prove that a state law violates the ex post facto | ^protection, a defendant must show that the law subjects the defendant to a more severe punishment or longer incarceration than the defendant would previously have been subjected to, prior to the enactment of the statute. Id.

Keith maintains he should be resen-tenced under Craig, supra, to the next lesser included offense of manslaughter—a maximum sentence of 40 years at hard labor. In 1976, the Louisiana Supreme Court held in Craig that Louisiana’s mandatory death penalty for aggravated rape is unconstitutional. The Craig court con-eluded the appropriate remedy to correct this now illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense. Id., at 193-94. Craig followed a prohibition of mandatory death sentences by the United States Supreme Court, which applied to all offenders currently sentenced to death without a hearing in which to present mitigating factors, and not exclusively to juveniles like Miller, supra. Thus, Craig eliminated the possibility of a mandatory death sentence entirely, necessitating vacating those now illegal sentences and resentencing to the most severe sentence for the next lesser included offense. Conversely, Miller did not eliminate the possibility of a life sentence for juvenile homicide offenders; it simply held sentencing to life imprisonment at hard labor, without parole eligibility, is unconstitutional if the defendant is denied a meaningful opportunity to present mitigating factors—such as, the attendant qualities of youth.

The application of the Miller and Montgomery decisions is far more analogous to the Louisiana Supreme Court’s response to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010), in which the United States ^Supreme Court held that the United States Constitution’s Eighth Amendment precludes sentencing a juvenile to life imprisonment withodt the possibility of parole for a non-homicide offense. In State v. Shaffer, 2011-1756 (La. 11/23/11), 77 So.3d 939, three defendants sought relief from their life sentences following Graham, and claimed their convictions for aggravated rape committed while juveniles were now illegal. The ■ Louisiana Supreme Court rejected the defendants’ argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in Craig, supra. Further, instead of remanding the cases for resentencing, the Louisiana Supreme Court amended the defendants’ life sentences to delete the restriction on parole eligibility. Accordingly, Craig relief is inapplicable to Keith’s circumstances, and the trial court did not err in following Montgomery.

The punishment for a conviction of second degree murder was not categorically eliminated by Miller, and remains the same today as it was in 1996 when Keith committed the offense for which he was convicted. Moreover, Keith’s sentence exposure for second degree murder after Miller, in accordance with La. C. Cr. P. art. 878.1 and La. R.S..15:574.4(E), is the same today as it was at the time of Keith’s offense—life imprisonment at hard labor without benefit of parole—except now, the less harsh sentence of life imprisonment at hard labor with eligibility for parole is available to juvenile homicide offenders. Accordingly, Keith’s argument that he should be sentenced to the penalty for manslaughter is meritless. Further, Keith’s |ylife sentence does not violate the ex post facto clauses because the statutes in question do not subject him to a harsher sentence or a longer period of incarceration; therefore, this assignment of error is without merit.

In his second assignment of error, Keith argues he' was denied a meaningful sentencing hearing in which to present mitigating factors to prove eligibility for relief under State v. Dorthey, 623 So.2d 1276 (La. 1993).

Louisiana C. Gr. P. art. 878.1.1 incorporates the Miller directive to conduct a hearing prior to sentencing juvenile homicide offenders to life imprisonment at hard labor without the benefit of parole. After Miller, the question of retroactivity remained. The United States Supreme Court addressed the concern that the retroactive application of Miller would create an undue hardship on courts:

Giving Miller retroactive effect, moreover, does not require States to reliti-gate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Montgomery v. Louisiana, supra, at 736. (Emphasis added, internal citations- omitted.) Eligibility for parole is the sole question to be answered in a Miller hearing. Montgomery, — U.S. at -, 136 S.Ct. at -, 193 L.Ed.2d at 610, J. Crichton concurring.

As discussed above, Miller and Montgomery did not prohibit the sentencing of juvenile homicide offenders to life imprisonment at hard labor without benefit of parole, but simply mandated a hearing is required, in which the offender may present mitigating factors before parole eligibility |scan be denied. Clearly, the appropriate remedy for juvenile homicide offenders convicted pre-Miller is to resen-tence without the restriction on parole, unless the offender is irreparably corrupt or one of the worst offenders. In the latter instance, a Miller hearing is required before a juvenile offender can be sentenced to life imprisonment at hard labor, without benefit of parole.

Here, the state conceded Keith is' not one of. the worst offenders, and it agreed to resentencing without parole restriction; therefore, Keith has received the most lenient sentence available to him under the current law. No resentencing hearing was required, because no . amount of mitigating evidence would warrant- a sentence of anything less than life imprisonment at hard labor with the benefit of parole eligibility. The trial court was authorized to resentence Keith under Miller and Montgomery v. Louisiana, and was bound to follow the Louisiana Supreme Court’s directive in Montgomery to resen-tence Keith pursuant to La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E). This assignment of error has no merit. -

Finally, in his third assignment of error, Keith argues the trial court erred by sentencing him to life imprisonment at hard labor with eligibility for parole, but without determining when he would become “parole board eligible,” We disagree. The statutory requirements for parole eligibility applicable to juvenile homicide offenders are clearly defined by La. R.S. 15:574.4(E), and Keith will become eligible for parole upon his compliance with those requirements and favorable evaluation by the Department of Public Safety and Corrections parole board.

^CONCLUSION .

For the reasons herein, we affirm the conviction and sentence of Audy W. Keith of life imprisonment at hard labor, with the benefit of parole eligibility'and credit for time served.

AFFIRMED.

      . The precise facts of Russ Rowland’s murder are detailed in State v. Irish, 2000-2086 (La. 01/15/02), 807 So.2d 208.

      . Pro se assignments of error were filed by Keith in his notice of appeal, but no pro se brief was filed; therefore, these assignments of error are not considered herein. U.R.C.A. Rule 2-12.4(B)(4). Notably, Keith’s pro se assignments are roughly similar to those set forth in the counseled appeal brief.

      . A proposal to amend La. C. Cr. P. art. 878.1 and La. R.S. 15:754.4 is once again before the legislature. See La. S.B. 16 (Reg. Sess. 2017).

      . See Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed. 2d 974 (1976).

      . State v. Shaffer has been superseded in part by amendments and enactments to La. R.S. 15:574.4.

        .See also State v. Leason, 2011-1757 (La. 11/23/11), 77 So.3d 933.


author: CHEHARDY, C.J.

text:
    Donna LAHARE v. VALENTINE MECHANICAL SERVICES, LLC
    NO. 17-C-289
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/RESPONDENT, DONNA LAHARE, Eric 0. Person
    COUNSEL FOR DEFENDANT/RELATOR, VALENTINE MECHANICAL SERVICES, LLC, Sean P. Mount, Anne E. Medo, Bryce M. Addison
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   CHEHARDY, C.J.

Lin this writ application, Valentine Mechanical Services, LLC, relator, seeks review of the district court’s May 1, 2017 ruling denying Valentine’s motion for partial summary judgment. After our de novo review, we conclude that the district court erred in denying Valentine’s motion for partial summary judgment. We therefore grant this writ application, vacate the district court’s May 1, 2017 ruling, and grant Valentine’s motion for partial summary judgment.

FACTS AND PROCEDURAL HISTORY

The material facts in this case are undisputed. In October 2013, respondent, Donna Lahare, was looking to install a generator on her property when she came into contact with Valentine. A sales representative with Valentine met with Ms. Lahare to discuss installation options. During this meeting, Ms. Lahare advised the sales rep that she wanted the generator installed on the side of her property, not in her backyard. On October 31, 2013, the sales rep assured Ms. Lahare that the generator could be installed there and the parties contracted accordingly. On December 9, 2013, Valentine obtained a permit for the installation, but the permit authorized the installation in the backyard. Thereafter, in accordance with the contract but in violation of the permit, Valentine installed the generator on the side of Ms. Lahare’s property. On December 20, 2013, a Jefferson Parish gas and plumbing inspector rejected the installation due to several code violations. Not wanting to relocate the generator, Ms. Lahare decided to apply for a zoning variance. This process required Ms. Lahare to obtain the approval of her neighbors. On March 18, 2014, while walking from house to house obtaining her neighbors’ signatures, Ms. Lahare tripped on an alleged defect in the sidewalk and injured her shoulder.

On April 15, 2015, Ms. Lahare filed suit against Valentine, seeking damages for the costs incurred for bringing the generator into compliance with code and for |2the personal injuries she sustained as a result of .her fall. On February 9, 2017, Valentine filed a motion for. partial summary judgment with respect to Ms. Lahare’s claim for personal injury damages.

Following a hearing on this motion on April 10, 2017, the district court denied Valentine’s motion in open court, which-it followed with a written judgment signed on May 1, 2017. Valentine filed the instant writ application seeking supervisory re-viewof that ruling.

DISCUSSION

We review the denial of a motion for summary judgment de novo. Bourgeois v. Allstate Ins. Co., 15-451 (La. App. 5 Cir. 12/23/15), 182 So.3d 1177, 1181. Under this standard of review, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Richthofen v. Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639.

“[A] motion for summary judgment shall be granted, if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as. a matter of law.” La. C.C.P. art. 966(A)(3). “[I]f 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.” La. C.C.P. art. 966(D)(1). “The burden is on the adverse party to .produce factual support sufficient to establish the existence of a 1 .¡genuine issue of material fact or that the mover is not entitled to judgment as a matter of law-”. Id. .

Here, Valentine is the . mover who will not bear the burden of proof at trial. Accordingly, in its motion for summary judgment, Valentine sought to point out the absence of factual support for one' of the essential elements of Ms. Lahare’s claim for personal injury damages.

Ms. Lahare asserts that her' claim for personal injury damages arises from Valentine’s breach of contract when Valentine failed to obtain the proper permit for the generator and failed to assist her in the variance process.

It is well settled that the same acts or omissions may constitute breaches of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. In re St. Louis Encephalitis Outbreak, 41,250 (La. App. 2 Cir. 9/1/06), 939 So.2d 563, 566-67. A plaintiff may assert both actions and is not required to' plead the theory of his case. Id. at 567. The classical distinction between “damages ex contractu” and “damages ex delicto” is that the former flow from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty owed to all persons. Dubin v. Dubin, 25,996 (La. App. 2 Cir. 8/17/94), 641 So.2d 1036, 1040.

Generally, where a person neglects to do what he is obligated to do under a contract, he has committed a passive breach of the contract. Dubin, supra. If he negligently performs .a contractual obligation, he has committed active negligence and thus an active breach of the contract. Id. (citing Huggs, Inc. v. LPC Energy, Inc., 889 F.2d 649 (5th Cir. 1989); Hennessy v. South Central Bell Telephone Company, 382 So.2d 1044 (La. App. 2d Cir. 1980)). A passive breach of contract warrants only an action for breach of contract; an active breach of contract, on the other hand, may also support an action in tort under La. C.C. art. 2315. Id.

14At the hearing on Valentine’s motion for partial summary judgment, the court denied the motion, reasoning as follows:

I don’t believe that it was a passive breach of contract right now based upon the facts I have been given. I believe it was an active because it was based on their workings, their operation; not their failures to do something. I would call that an active breach. And the law allows for a tort claim in active breach of contract.

Our review of Ms. Lahare’s original and amended petitions leads us to a different conclusion. Her original petition alleges: “[D]ue to her finding out about the variance procedure being necessary,..., Valentine Mechanical Services, LLC having left Petitioner to her own devices, Petitioner began to go from house to house....” This petition also states: “While as a result of the actions of defendant, Valentine Mechanical Services,' LLC, petitioner was going door to door....” Her amended petition further alleges: “Valentine Mechanical Services, LLC refused to help or otherwise be involved in the variance request process.” The amended petition also claims: “Valentine Mechanical Services, LLC offered no solution to the generator location problem and no assistance with the variance request process necessary to make the generator usable.” And lastly: “The seeking of a variance from all neighboring property owners as required by Jefferson Parish caused Petitioner to come in contact with a raised cement encumbrance on one of the sidewalks leading to a neighbor’s house.”

Upon our review of Ms. Lahare’s original and amended petitions, we find she does not allege that her injuries were caused by Valentine’s negligent performance of the contract, but were caused by Valentine’s non-performance, namely, Valentine’s failure to obtain the proper permit and failure to assist -in the variance process. As such, we conclude that Ms. La-hare alleged a passive breach of contract, which does not support a tort claim. But even if Valentine’s breach could be considered an active breach, we still find summary judgment was appropriate because Ms. Lahare cannot succeed on her tort claim.

| kTo succeed on a claim of negligence in Louisiana, the plaintiff .must prove five elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element);- (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the proximate cause/legal cause/scope of liability/scope of protection/scope of duty element); and. (5) proof of actual damages (the damages element). Vince v. Koontz, 16-521 (La. App. 5 Cir. 2/8/17), 213 So.3d 448, 455, writ denied, 17-429 (La. 4/24/17), 221 So.3d 67, 2017 WL 2773897, 2017 La. LEXIS 867 221 So.3d 67, (citing Rando v. Anco Insulations Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1086).

If we assume an active breach of contract, it necessarily follows that the first two elements of Ms. Lahare’s tort claim are satisfied. But she must still satisfy the three remaining elements; and we find that she cannot satisfy the third and fourth elements of her claim, cause-in-fact and legal cause.

The element of cause-in-fact is a question of fact. Koontz, supra. It is generally a “but for” inquiry such that if the plaintiff probably would have not sustained the injuries but for the defendant’s substandard conduct, the conduct is a cause-in-fact. Roberts v. Benoit, 605 So.2d 1032, 1042 (La. 1991). However, intervening and superseding causes may sever the causal connection between a plaintiffs injuries and a defendant’s negligence. The Louisiana Supreme Court has explained:

In situations in which there is an intervening force that comes into play to produce the plaintiffs injury (or more than one cause of an accident), it has generally been held that the initial tort-feasor will not be relieved of the consequences of his or her negligence unless the intervening cause superceded [sic] the original negligence and alone produced the injury. If the original tortfea-sor could or should have reasonably foreseen that the accident might occur, he or she will be pliable notwithstanding the intervening cause. In sum, foreseeable intervening forces are within the scope of the original risk, and hence of the original tortfeasor’s negligence.

Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So.2d 798, 808 (citations omitted).

Assuming Valentine’s failure to obtain the proper permit or failure to assist in the variance process constituted active negligence, we find this was not the cause-in-fact of Ms. Lahare’s injuries. While it may be true that Ms. Lahare would not have been walking from door to door but for Valentine’s actions, the alleged defect in the sidewalk was the intervening and superseding cause of her injuries. And these injuries, caused as they were by tripping over an alleged defect in the sidewalk, were certainly not a reasonably foreseeable risk of Valentine’s failure to obtain the proper permit or failure to assist in the variance process. Ms. Lahare cannot prove cause-in-fact.

The element of legal cause is a question of law that is informed by both factual and policy considerations. Koontz, supra. The legal/policy inquiry is whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Rando v. Anco Insulations Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1088. This inquiry depends on factual determinations of foreseeability and ease of association. Id. at 1089. For instance, a risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Id. at 1092.

Here, Valentine’s delictual duty forming the basis of Ms. Lahare’s tort claim seems to be the universal duty to use reasonable care to avoid injury to another. See Rando at 1086 (“There is an almost universal duty on the part of the defendant in a negligence action to use reasonable care to avoid injury to another.”). Thus, 17Valentine assumed a general duty of care when installing the generator, and, according to the theory of liability advanced by Ms. Lahare, breached this duty when it failed to obtain the proper permit or failed to assist in the variance process.

Under Ms. Lahare’s theory, Valentine’s duty of care when installing a generator protects her from the risk of sustaining injuries by tripping over defects in public sidewalks. We disagree. Such an attenuated risk is neither reasonably foreseeable, nor easily associated with Valentine’s duty. Accordingly, we find the risk of sustaining injuries by tripping over an alleged defect in a public sidewalk is not within the scope of protection afforded by Valentine’s duty of care associated with the installation of a generator. Ms. Lahare cannot prove legal cause.

Thus, even if Valentine’s breach of contract was an active breach, Ms. Lahare would still not be able succeed on her tort claim. We therefore conclude that Valentine’s motion for partial summary judgment should have been granted.

DECREE

We grant this writ application, vacate the district court’s ruling denying Valentine’s motion for partial summary judgment, and render judgment granting Valentine’s motion for partial summary judgment, dismissing with prejudice Ms. Lahare’s claim against Valentine for personal injury damages. The matter is remanded for further proceedings consistent with this opinion.

WRIT GRANTED; JUDGMENT VACATED; PARTIAL SUMMARY JUDGMENT GRANTED; REMANDED

      . In accordance with La. C.C.P. art. 966(H), the parties filed additional briefing and were given the opportunity to request and participate in oral argument,


text:
    Lorrie L. FISHER v. ASI FEDERAL CREDIT UNION
    NO. 17-C-292
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/RESPONDENT, LORRIE L. FISHER, Anthony L. Glorioso '•
    COUNSEL FOR DEFENDANT/RELATOR, ASI FEDERAL CREDIT UNION, Paula M. Wellons, Stephen.T. Perkins
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   CHEHARDY, C.J.

hln this writ application, relator, ASI Federal Credit Union (hereinafter “ASI”), seeks review of the denial of its motion for summary judgment with respect to Lorrie Fisher’s defamation claim against ASI. For the following reasons,' we grant defendant’s writ application, vacate- that ruling, grant summary judgment in favor of ASI, and dismiss this matter.

Facts and Procedural History

In her petition filed on October 9, 2013, Lorrie Fisher sued ASI for defamation for written statements that ASI made to the Louisiana Workforce Commission when Fisher-sought unemployment benefits after her termination from ASI. Specifically, ASI’s notice of termination stated its reasons for Ms. Fisher’s termination as: “poor work performance; refuses to take responsibility for actions; not receptive to feedback to improve; did not show any improvement in past two evaluations.”

On December 30, 2016, ASI moved for summary judgment “based on the truth of the statements challenged by plaintiff, the conditional or qualified privilege that attached to those statements, and the lack of any cognizable damages allegedly caused by those statements.” To its motion for summary judgment, ASI attached copies of Ms. Fisher’s performance reviews and deposition excerpts from Ms. Fisher’s supervisors stating that the statement in its notice of termination was accurate regarding Ms. Fisher’s job performance. Further, ASI attached deposition excerpts in which Ms. Fisher acknowledged that she is currently employed and that she does not know of any specific job that declined to hire her because of her termination from ASI.

On April 24, 2017, the trial judge heard argument on ASI’s motion for summary judgment. On April 28, 2017, the trial judge denied summary judgment, noting in his written reasons for judgment:'

|2In this casé, the Court 'finds that there presents [sic] genuine issues of material facts pursuant' to La. C.C.P. art. 966(A). Considering the reasons presented by both counsel, there has not been enough evidence presented to determine whether the statements made by the defendant to the Louisiana Work Commission were intentionally defamatory in nature. In addition, it is unclear whether or not the publication made , to the Louisiana Work Commission was privileged. Lastly, the Court is unable to make a determination whether the plaintiff actually suffered damages. For these reasons, the Court is under the impression that there still remains genuine issues of material fact, and that the suit should proceed to trial to resolve this matter.

On June 2,2017, ASI filed its timely writ application seeking review of that ruling. In order to properly consider this writ application in accordance with La. C.C.P. art. 966(H), this Court docketed the writ application for argument pursuant to U.R.C.A, Rule 4-7. This opinion follows.

Law and Argument

Standard of Review

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852, The version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearing in this case provides, “a motion for summary judgment shall be granted if the mótion, memorandum, and supporting documents show that there is no genuine issue as to material'fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). Further, La. C.C.P. art. 966(A)(4) reads, “The only documents that may be filed in |,.¡support of or in opposition to the motion are pleadings; memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.”

The burden is on the party seeking summary judgment to establish that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. However, if the movant will not bear the burden of proof at trial, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(D)(1). Once the movant proves that there is an absence of factual support for one or more elements essential to the adverse party’s claim, the burden shifts to 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. Id.

Here, ASI, who was the movant, had the burden to prove an absence of factual support for one or more elements essential to Ms. Fisher’s claim. La. C.C.P. art. 966(D)(1). Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Kline v. Farm Bureau Ins. Companies, 06-129 (La. App. 5 Cir. 9/26/06), 942 So.2d 1080, 1083, writ denied, 06-2575 (La. 12/15/06), 945 So.2d 697. The decision as to the propriety of the ruling on a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Substantive Law

LHere, Ms. Fisher’s petition alleges that employees of ASI provided “libelous comments,” which caused her damage, to the Louisiana Workforce Commission; specifically, ASI reported that Ms. Fisher was terminated for “poor work performance; refuses to take responsibility for actions; not receptive to feedback to improve; did not show any improvement in past two evaluations.”

In Louisiana, “[flour elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 139. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Id. By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Id. at 140.

We note that, the Louisiana Supreme Court has held:

because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication ... is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.

Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted).

In its motion for summary judgment, ASI pointed out an absence of factual support for two elements of Ms. Fisher’s claim: the statements were true and subject to qualified privileged. We will discuss both issues.

First, in a suit for defamation, proof of the truth of a defamatory remark is a valid defense. La. R.S. 13:3602; Nolan v. Jefferson Par. Hosp. Serv. Dist. No. 2, 11-291 (La. App. 5 Cir. 3/13/12), 90 So.3d 1178, 1183. Here, ASI produced Uexcerpts of depositions and supporting documentation from its employees who supervised Ms. Fisher verifying that Ms. Fisher’s job performance was inadequate and had not improved after several performance evaluations. Ms. Fisher admitted in her deposition that, on both of her performance evaluations while she was employed at ASI, she received the same evaluation score, which was two out of four. Thus, the burden shifted to Ms. Fisher to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial that the statement by ASI was false.

To do this, Ms. Fisher argues that, in specific areas of her second evaluation, she received higher scores than in her first evaluation, which denotes an improvement, even though her overall score remained “2.” ASI points out, however, that the evaluations scores are weighted so improvement in one small category does not necessarily translate to an overall higher score.

Upon de novo review, we find this allegation is not sufficient to meet Ms. Fisher’s burden of proof that a genuine issue of material fact exists. The evidence fails to demonstrate that Ms. Fisher could carry her burden of proof at trial that ASI’s statement to the Louisiana Workforce Commission was false.

Turning to the next issue, privilege is a defense to a defamation action. Nolan, 90 So.3d at 1182. The elements of the conditional privilege have been described as “good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only.” Id. The analysis for determining whether a conditional privilege exists involves a two-step process. First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. The second step of the analysis is a determination of whether the privilege was abused, which requires that the grounds for abuse-malice or lack of good faith be examined. Id. “While the first step is generally determined by the court as a | (¡matter of law, the second step of determining abuse of a conditional privilege or malice is generally a fact question for the jury ‘[u]nless only one conclusion can be drawn from the evidence.’ ” Id.

With respect to whether this communication was a qualified privilege, this Court in Nolan, supra, which is factually similar to this case, stated,

The defense of qualified privilege has been found to be applicable in communications made in unemployment compensation proceedings. The public’s interest and social necessity mandate that an employer not be unreasonably restricted when required to provide information for a state agency to determine in a quasi-judicial proceeding whether a terminated employee should receive unemployment benefits. The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter.

Nolan, 90 So.3d at 1182.

Thus, it is clear that the statement by ASI to the Louisiana Workforce Commission regarding Ms. Fisher’s unemployment benefits was a.statement to a state agency with, a legitimate interest in the subject matter and relevant to the subject matter of the Commission’s inquiry. This statement is subject to qualified privilege.

Next, we must determine whether -ASI abused its qualified privilege, which requires Ms. Fisher to set forth evidence that ASI had -“knowledge or reckless disregard as to [the] falsity” of its statement. Kennedy, supra, 935 So.2d at 684. As we' have shown infra, the record before us - is devoid of evidence that the statement in question was false; thus, we find no abuse of ASI’s qualified privilege.

|7Aftér de novo review, we find this allegation is not sufficient to' meet Ms. Fisher’s burden of proof that a genuine issue of material fact exists. The evidence fails to demonstrate that Ms. Fisher.could carry her burden of proof at trial that ASI’s statement to the Louisiana Workforce Commission was an abuse of its qualified privilege.

Decree

In conclusion, after our de novo review, We find that ÁSI pointed out an absence of factual support for two elements of the cause of action for defamation, and Ms. Fisher failed to demonstrate, through competent evidence, that she could carry her burden of proof at trial. Accordingly, we grant this writ application, vacate the trial court’s denial of summary judgment, grant summary judgment in favor of ASI Federal Credit Union, and dismiss Ms. Fisher’s claim with prejudice....

WRIT GRANTED; JUDGMENT VACATED; SUMMARY JUDGMENT GRANTED; DISMISSED

      . Pursuant to Acts 2015, No. 422, § 1, effective January 1, 2016, La. C.C.P. art, 966 was extensively revised. In that revision, La, C.C.P. art. 966(H), which reads as follows, was added: “On review, an appellate court shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.”

      . As noted infra, pursuant to Acts 2015, No. 422, § 1, effective January 1, 2016, La. C.C.P. art. 966 was extensively revised.

      . "Louisiana Workforce Commission shall be composed of .,, the office of unemployment insurance administration, and such other offices as shall be created by law.” La. R.S. 36:301.


text:
    Harold HATHORN v. ESCO CORPORATION
    2015-CT-01528-COA
    Supreme Court of Mississippi.
    Filed: 05/02/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    David Lee MAY v. STATE of Mississippi
    2014-CT-00681-COA
    Supreme Court of Mississippi.
    Filed: 05/09/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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    2015-CT-01832-COA
    Supreme Court of Mississippi.
    Filed: 05/11/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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    2015-CT-01236-COA
    Supreme Court of Mississippi.
    Filed: 05/12/2017
    Closed: 08/03/2017
   Motion Desc: APPELLANTS, STEPHEN CARMODY AND ROWENA CARMODYS PETITION FOR WRIT OF CERTIORARI

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text:
    Suzann (Savage) DAVIS v. Charles Gregory DAVIS
    2015-CT-01810-COA
    Supreme Court of Mississippi.
    Filed: 05/15/2017
    Closed: 08/03/2017
   Motion Desc: Appellants Petition for Writ of Certiorari

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    2015-CT-01055-COA
    Supreme Court of Mississippi.
    Filed: 05/16/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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    Marci Sklar TEAL v. Elaine JONES
    2015-CT-00259-COA
    Supreme Court of Mississippi.
    Filed: 05/16/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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    2015-CT-00522-COA
    Supreme Court of Mississippi.
    Filed: 05/23/2017
    Closed: 08/31/2017
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    2012-CT-00616-COA; 2015-CT-00534-COA
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    Filed: 6/17/2017
    Closed: 8/24/2017
   Motion Desc: Appellant Petition for Writ of Certiorari

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text:
    Linda Gardner CALLINGTON v. Mae Otha GARDNER
    2015-CT-01447-COA
    Supreme Court of Mississippi.
    Filed: 06/20/2017
    Closed: 08/31/2017
   Motion Desc: Petition For Writ Of Cer-tiorari

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text:
    Marterius C. SANDERS v. STATE of Mississippi
    2015-CT-00971-COA
    Supreme Court of Mississippi.
    Filed: 06/28/2017
    Closed: 08/10/2017
   Motion Desc: Motion for Writ of Certio-rari

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text:
    Laveal MCGHEE v. STATE of Mississippi
    2014-CT-00130-COA
    Supreme Court of Mississippi.
    Filed: 07/05/2017
    Closed: 08/17/2017
   Motion Desc: Petition for Writ of Cer-tiorari-

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text:
    James Kenard PARISH v. STATE of Mississippi
    2015-CT-01374-COA
    Supreme Court of Mississippi.
    Filed: 05/30/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    Bruce COPE v. THRASHER CONSTRUCTION, INC.
    2014-CT-01474-SCT
    Supreme Court of Mississippi.
    Filed: 06/05/2017
    Closed: 08/03/2017
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text:
    ILLINOIS CENTRAL RAILROAD COMPANY v. Clara HAGAN
    2015-CT-00644-SCT
    Supreme Court of Mississippi.
    Filed: 06/05/2017
    Closed: 08/24/2017
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text:
    Ronald David WRIGHT v. STATE of Mississippi
    2016-CT-00389-COA
    Supreme Court of Mississippi.
    Filed: 06/16/2017
    Closed: 08/24/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    Bruce COPE v. THRASHER CONSTRUCTION, INC.
    2014-CT-01474-SCT
    Supreme Court of Mississippi.
    Filed: 05/23/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    Apolinar Terrero RUIZ v. STATE of Mississippi
    2015-CT-00342-COA
    Supreme Court of Mississippi.
    Filed: 06/01/2017
    Closed: 08/31/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Brian WILLIAMS v. STATE of Mississippi
    2015-CT-01911-COA
    Supreme Court of Mississippi.
    Filed: 06/05/2017
    Closed: 08/24/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Charles D. EASLEY v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
    2015-CT-01011-COA
    Supreme Court of Mississippi.
    Filed: 06/06/2017
    Closed: 08/03/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


author: ISHEE, J.,

text:
    Marcellos COLEMAN a/k/a Moose, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01554-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied August 8, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE M. MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

      BEFORE GRIFFIS, P.J., ISHEE AND’ GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. On June 11, 2015, Marcellos Coleman was convicted in Hinds County Circuit Court for the kidnapping and murder of Duan Penn. On the murder conviction, Coleman was sentenced to life imprisonment, and on the kidnapping conviction, he was sentenced to thirty years’ imprisonment, with the sentences to run concurrently. Coleman timely appeals and asserts that the circuit court erred in allowing the State to make improper prejudicial comments during its closing argument and, as such, denied him his constitutional right to a fair trial. We disagree. We find that the circuit court did not err, and we affirm Coleman’s convictions.

FACTS

¶ 2. On April 11, 2012, at approximately 1:20 a.m., officers with the Jackson Police Department responded to an emergency call regarding a fire. The fire department extinguished the burning object, and the officers discovered that the burning object was the human body of an unidentified male. The body was too badly burned to determine the race of the victim. Fragments of a blue tarpaulin were found near the body, and rope was recovered from the lower right leg of the victim. The body was found near a marshy area, and it appeared the tarpaulin was dragged across the grass to where the body was discovered. Additionally recovered at the crime scene were duct tape around the victim’s mouth, rope around the victim’s ankles, fragments of what was likely a t-shirt around the victim’s neck, and charred socks on each foot.

¶ 3. The -victim’s body was not identified until approximately one month after its discovery, when the victim was reported missing by his brother. After using dental records, it was determined that the victim was the man’s missing brother, Duan Penn.

¶ 4. While investigating Penn as a missing person, officers were informed that Coleman, Marcus Shelby, and Janice Pittman were involved in killing Penn. Officers drove to Coleman’s house to speak with him and saw a blue tarp in Coleman’s yard. They then obtained and executed a search warrant for Coleman’s house, where they discovered a blue tarp and a “burn pile” where debris was burned. The officers interviewed Pittman, Coleman’s next-door neighbor, and she explained both her and Coleman’s involvement in Penn’s death.

¶ 5. Pittman testified that on April 10, 2012, she was asleep with her boyfriend in her house. She explained that she was jarred awake by screaming outside of her window. She testified that she got out bed, walked to her front porch to investigate, and saw four men standing over a man— who was later identified as Penn—on the ground. She said Coleman demanded to know where his stuff was and then kicked Penn. She testified that she saw fire rising from where Penn was on the ground, and that it looked like the men were trying to stomp out the fire. Of the four men, Pittman was only able'to identify Coleman and Shelby. She testified that one of the unidentified men approached her and told her that Penn implicated Pittman’s daughter in a burglary that had occurred at Coleman’s house a few days earlier. The unidentified man asked Pittman if she was going to confront Penn for his allegations, to which she responded affirmatively by hitting Penn approximately four times. After beating'Penn, Pittman went back inside her house to change her bloody shirt. She gave the shirt to the unidentified man to put in the burn pile at Coleman’s house, and noted that it appeared that Penn’s genitals had been burned.

¶ 6.-Pittman said she then saw two men carry Penn into Coleman’s back yard. A few minutes later, she saw two of the men come from the back.yard carrying something that was wrapped up and loaded it into the trunk of one of the cars. Coleman then handed her a small gas can from his house and asked her to go get a gallon of gas. She returned with the gas, and, the men drove off.

. ¶ 7. On cross-examination, Pittman told the jury that a few days earlier, Coleman and Penn had an argument that resulted in Coleman shooting the ground next to Penn’s feet. This story was confirmed by another neighbor, Earnest Hendricks, who testified that the argument began when Coleman asked Penn about burglarizing his house. Hendricks testified that on the night of the murder, Penn attended a barbeque at Coleman’s house, where Coleman accused Penn of burglarizing his house.

¶8. Sacquana Collins, Pittman’s roommate, testified similarly to Pittman. However, Collins said she saw Coleman set a man on fire, and said when the man’s body was being carried to the backyard, Coleman gave orders directing the others.

¶ 9. Coleman testified in his own defense and said that he and Penn had been good friends for several years and that he never suspected Penn of burglarizing his home. He said Pittman told him Penn broke into his home, but he said he .did not believe her. Coleman testified that he accidentally shot the gun near Penn and that he was actually telling Penn he would protect him. When he testified at trial, it was clear that Coleman’s version of the events differed substantially from Pittman’s and the other witnesses’.

¶ 10. Coleman' testified that on the day of the murder, he had friends over for a barbeque to celebrate his birthday. Penn approached him and said that he had information regarding the burglary that had occurred at Coleman’s house a few days prior. He testified that Pittman then confronted Penn and alleged that Penn was spreading rumors about her daughter’s involvement in the burglary. The pair exchanged tense language, before Pittman attacked .Penn and knocked him down. Coleman testified that this occurred while he was tending to the flaming grill and that he tried to break up the fight, but Pittman’s boyfriend was ultimately the one who ended it.

¶ 11. Coleman told the jury that after the, fight, he went inside his house and fell asleep'with his girlfriend, Quinyetta Bill-ups, at approximately 10:15 p,m. He testified .that his girlfriend woke him up at midnight, complaining of a noise outside, but the .pair fell back asleep until she left the house around 2:00 a.m. Coleman said he then talked on the phone from roughly 2:30 a.m. until 6:00 a.m. with his other girlfriend. Coleman denied that, Penn was kidnapped and murdered at his house.

¶ 12. Prior to trial, the circuit court declared Billups unavailable under Mississippi Rule of Evidence ■, 804(b)(1). Billups previously testified at an earlier habeas corpus proceeding, and defense counsel read the prior statement into- evidence. In the statement,- Billups testified that she was with Coleman from approximately 10:00 p.m. until around 2:00 a.m. She said she noticed “a little bit of commotion going on next door,” but that nothing occurred at Coleman’s house. She testified that Coleman’s two sons were the only other people at the house besides her and Coleman.

¶13. After deliberations, the jury returned guilty verdicts on- both counts. Coleman timely appeals and asserts that the State made improper comments in its closing argument, thus rendering his trial unfair.

DISCUSSION

¶ 14. “The standard of review which this Court must apply to lawyer misconduct during opening statements or closing arguments is Vhether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.’” Wilson v. State, 194 So.3d 855, 864 (¶ 30) (Miss. 2016). “The purpose of a closing argument is to fairly sum up the evidence.” Id, Prosecutors “are not allowed to employ tactics which are ‘inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.’ ” Id, “The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts.” Id. “[I]mproper remarks made during closing arguments can be harmless error where the evidence of guilt is overwhelming.” Moffett v. State, 156 So.3d 835, 858 (¶ 65) (Miss. 2014).

¶ 15. During closing argument, the State discussed Billups’s absence from the trial and commented: “Recall this little statement that was read today by a witness who wasn’t here. And you’re able to use your good common sense and sound, honest judgment. Maybe she didn’t—.” At that point, defense counsel objected that the State’s comment was an improper argument; however, the circuit court overruled the objection saying, “this is closing argument. I’ll allow it. I believe the jury can make reasonable , inferences from the evidence presented. So I am going to allow it.” The State continued its argument asserting that Billups was absent because “maybe she [did not] want to perjure herself. Maybe somebody told her about, that was a crime. I don’t know. What I do know is an alibi witness who allegedly was there with [Coleman], didn’t face y’all.” Defense counsel faiíed to object at this point.

¶ 16, Coleman further argues that the State made improper-, comments when it noted that Coleman had- multiple girlfriends and that “to be a cheater you know you got to be extra slick.” The prosecutor went further to say that when-somebody has multiple girlfriends, “you[’re] talking about manipulation [and] [h]ow much more manipulative can you get.” Additionally, Coleman asserts that, the prosecutor improperly commented that Coleman “hoodwinked our government” because he drew military disability checks. The prosecutor argued that when he had seen Coleman the previous day, nothing appeared to be physically or mentally wrong with him. Defense counsel failed to object to these statements as well.

¶ 17. “In general, the failure to object to the prosecution’s statements in closing argument constitutes a procedural bar.” Ross v. State, 954 So.2d 968, 1001 (¶ 71) (Miss. 2007). Despite the procedural bar, this Court, may address the statements if they were “so inflammatory that the trial judge should have objected on his own motion.” O’Connor v. State, 120 So.3d 390, 399 (¶ 23) (Miss. 2013). We find that the prosecutor’s statements were not so inflammatory that the circuit judge should have objected on his own. motion. Nor do we find that the natural and probable ef-feet of the improper arguments created unjust prejudice against Coleman. The case presented by the State provided overwhelming evidence of Coleman’s guilt, and any error that may have occurred was harmless error. Therefore, we find that these arguments are without merit, and as such, we affirm.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; AND COUNT II, KIDNAPPING, AND SENTENCE OF THIRTY YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . A few days prior to the murder, Coleman's house was burglarized while he was in jail overnight. Neighbors implicated Penn in the burglary.

      . After a diligent search, neither the sheriffs office nor a private investigator could locate Billups.