author: Judge Terri F. Love

text:
    Yvonne AINSWORTH, Individually and on Behalf of her Deceased Mother, Sylvia Taylor v. AMERICAN HOME ASSURANCE COMPANY, Healthcare Casualty Insurance Limited, Aggreko, LLC, and Touro Infirmary
    NO. 2017-CA-0778
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018 Rehearing Denied March 6, 2018
    Joseph M. Bruno, Melissa A. Debarbieris, BRUNO & BRUNO LLP, 855 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT
    Franklin D. Beahm, Christopher G. Otten, BEAHM & GREEN, LLC, 145 Robert E. Lee Boulevard, Suite 408, New Orleans, LA 70124-2552, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore)
   Judge Terri F. Love

Yvonne Ainsworth ("Ms. Ainsworth"), individually and on behalf of her deceased mother, Ms. Sylvia Taylor ("Ms. Taylor"), filed the instant lawsuit, alleging that the conditions at Touro Infirmary ("Touro") during Hurricane Katrina caused or contributed to the injuries Ms. Taylor sustained while under its care. Ms. Ainsworth seeks appellate review of the trial court's granting of summary judgment in favor of Touro and Healthcare Casualty Insurance Limited ("HCIL"). In light of the environmental conditions at Touro and Touro's admitted failures to adequately care for its patients, expert testimony is not required to prove claims of temporary suffering. However, we find expert testimony necessary to establish whether the conditions at Touro contributed to or caused Ms. Taylor's death. Therefore, as to plaintiff's wrongful death claims, we find summary judgment premature. Pursuant to La. C.C.P. art. 966(A)(3), we reverse the trial court's ruling granting summary judgment and remand to allow Ms. Ainsworth to conduct additional discovery.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Ms. Taylor, an 82 year old woman, who had undergone radiation therapy for lung cancer, was admitted to Touro on August 26, 2005. According to Touro's medical records, Ms. Taylor presented with complaints of nausea and vomiting for three days with an episode of hematemesis but was found not to be in any "acute distress." She was diagnosed with hematemesis, nausea, vomiting, dehydration, digoxin toxicity, COPD, and lung cancer.

On August 29, 2005, Hurricane Katrina struck the City of New Orleans, causing severe damage, power outages, and a lack of clean water. Ms. Taylor was not evacuated prior to the hurricane making landfall and remained at Touro, whose generators had failed. On August 31, 2005, Ms. Taylor was evacuated from Touro. A discharge summary from Touro in UT Southwestern's records for Ms. Taylor noted her "long term prognosis poor." Medical records show Ms. Taylor was admitted to University of Texas-Southwestern Medical Center/St. Paul University Hospital ("UT Southwestern") in Texas on September 1, 2005. However, her medical records fail to indicate what transpired between the time she was evacuated from Touro and her admission at UT Southwestern the following day.

A radiological consult on September 2, 2005, indicated that Ms. Taylor's lung cancer had metastasized to her brain, and it was recommended that "she undergo palliative radiation therapy to the brain." On September 17, 2005, Ms. Taylor was discharged from UT Southwestern in "guarded" condition and was placed in a hospice facility. Ms. Taylor passed away on October 14, 2005.

Although initially a putative class member in a class action suit against Touro, Ms. Ainsworth timely filed suit individually against Touro on January 23, 2014, after the denial of the class. Ms. Ainsworth sought damages for Touro's negligence, alleging Touro breached its duty to its patients to evacuate them safely or to provide a safe and adequate environment for them in the wake of Hurricane Katrina. Touro and HCC filed a motion for summary judgment, and a hearing was held, after which the trial court granted summary judgment.

After Ms. Ainsworth's appeal was lodged with this Court, the parties filed a joint motion to remand the matter on the basis that the trial court's judgment lacked the necessary decretal language in order for this Court to have proper appellate jurisdiction. This Court granted the joint motion and the record was supplemented with a "Reformed Judgment." Ms. Ainsworth seeks this Court's reversal of the granting of summary judgment.

STANDARD OF REVIEW

Courts of appeal review de novo a trial court's ruling on a motion for summary judgment, applying the same standard as the trial court. Klutz v. New Orleans Pub. Facility Mgmt., Inc. , 05-0327, p. 2 (La. App. 4 Cir. 12/21/05), 921 So.2d 1021, 1023 (citing Schmidt v. Chevez , 00-2456, p. 4 (La. App. 4 Cir. 1/10/01), 778 So.2d 668, 670 ).

"After an opportunity for adequate discovery, 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) ; Klutz , 05-0327, p. 3, 921 So.2d at 1023. The burden rests with the mover, unless the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1). In which case, "the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim...but rather to point out...the absence of factual support for one or more elements essential to the adverse party's claim...." Id.The burden shifts to the adverse party to produce factual support demonstrating "the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

DISCUSSION

Pursuant to La. C.C. art. 2315, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Under a duty/risk analysis, liability attaches when the plaintiff successfully proves the following:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Mathieu v. Imperial Toy Corp. , 94-0952, p. 4-5 (La. 11/30/94), 646 So.2d 318, 322.

Duty

There is no genuine issue of material fact as to whether Touro had a duty to conform its conduct to a specific standard of care. Ms. Ainsworth contends that Touro assumed an independent duty of safety, a duty to provide necessary provisions, and a duty to provide a safe environment to its patients. Likewise, she asserts that it was judicially determined that Touro had a duty to its patients, including Ms. Taylor, to provide ventilated air. Touro concedes that this Court previously held that Touro owed a duty to provide adequate ventilation for patients. See Serou v. Touro Infirmary , 12-0089 (La. App. 4 Cir. 1/9/13), 105 So.3d 1068. Despite its concession, Touro asserts that it is of no consequence because Ms. Ainsworth cannot demonstrate breach of duty, causation, or damages. We therefore examine next whether the evidence demonstrates a genuine issue of material fact as to a breach of duty owed to Ms. Taylor.

Breach of Duty

Touro maintains that Ms. Ainsworth has not demonstrated that Touro breached its duty as to Ms. Taylor. Instead, it focuses on Ms. Taylor's pre-existing conditions, stating "she faced a very poor prognosis even before the storm, and these pre-existing conditions preced[ed] the alleged negligent acts." It is undisputed that Touro lost power and the conditions inside Touro began to deteriorate. According to Touro's then-CEO, Leslie Hirsch ("Mr. Hirsch"), "[a]s the outside temperature climbed in the nineties, and the AC system had failed, the hospital suffered oppressive heat and humidity." He described the conditions at Touro as "unbearably hot, especially for the patients." He further testified that, "[Touro] could no longer provide basic services to safely care for [its] patients." Consequently, the decision was made to evacuate the facility "because the building was just not a safe place for them to be any longer."

Causation and Damages

Touro's motion for summary judgment centers on the argument that Ms. Ainsworth's wrongful death claim lacks sufficient evidentiary support, specifically medical expert testimony, for the elements of causation and damages. However, Ms. Ainsworth's petition, as argued in opposition to summary judgment, asserts two types of claims: temporary pain and suffering and wrongful death. We find that while expert testimony is not required to prove temporary suffering under the specific facts of this case, expert testimony is necessary to prove wrongful death. We discuss our reasoning in greater detail below.

Ms. Ainsworth contends that due to Touro's actions and inactions, Ms. Taylor was subject to and forced to endure sweltering temperatures, inadequate ventilation, lack of provisions, and unsanitary conditions. As a result of the environmental conditions inside Touro, Ms. Ainsworth alleges her mother sustained injuries including but not limited to: dehydration, over-heating, exhaustion, severe mental anguish, fear, extreme stress, anxiety, and depression. She also alleges that the environmental conditions inside Touro contributed to and/or caused her mother's death.

Conversely, Touro argues that no complaints, critiques, or commentary on the conditions of Touro are contained in her medical records from UT Southwestern. It avers that in light of Ms. Taylor's pre-existing conditions there is no evidence in her medical records to indicate any new conditions emerged in connection with the alleged negligent acts. Further, Touro contends that Ms. Taylor's cause of death (lung cancer and diffuse brain metastasis ) bears no relationship to the alleged conditions at Touro, nor is there any evidence of injuries to Ms. Taylor, apart from what it describes as "conjecture and argument."

Touro relies on Falcone v. Touro Infirmary , 13-0015, 13-0016 (La. App. 4 Cir. 11/6/13), 129 So.3d 641, for the proposition that each plaintiff has the burden of proving that the conditions of the hospital caused his or her injuries. Unlike Falcone , which involved appellate review of a jury verdict, this matter is before us on summary judgment and subject to a different standard of review. The inquiry in Falcone was whether the jury's verdict was reasonable based on the evidence presented at trial. Conversely, the inquiry on appellate review in this case is whether reasonable minds could disagree. While no two individuals have the same exact risk, Ms. Ainsworth avers that Touro's former CEO testified that the conditions were such that Touro could not adequately care for its patients. She contends that this evidence calls into question the adequacy of Touro's measures to safely care for its patients, particularly in reducing the heat risk for all patients, and certainly for those patients with pre-existing conditions like Ms. Taylor. Ms. Ainsworth maintains that sufficient evidence has been presented from which reasonable minds could disagree.

In granting summary judgment, the trial court found that "the only way for [Ms. Ainsworth] to satisfy her evidentiary burden without any medical records or any other type of direct evidence is through expert testimony." (emphasis added). The trial court determined that "[w]ithout an expert, Ms. Ainsworth cannot establish the causal connection necessary to prove that the conditions at Touro following Hurricane Katrina caused Ms. Taylor's death."

A plaintiff is not limited to direct evidence in order to overcome summary judgment. A plaintiff may use circumstantial evidence to defeat a motion for summary judgment. Wood v. Becnel , 02-1730, p. 5 (La. App. 4 Cir. 2/26/03, 840 So.2d 1225, 1227. Ms. Ainsworth's burden is to prove her case by a preponderance of the evidence. Id. (citing Lacey v. Louisiana Coca-Cola Bottling Co. , 452 So.2d 162, 164 (La. 1984) ). "This burden may be met by direct or circumstantial evidence. [When] circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes." Id.

Further, "[t]he standard for determining the causal relationship is whether plaintiff proved 'by a preponderance of the evidence through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.' " Williams v. Mathieu , 13-1373, p. 2 (La. App. 4 Cir. 10/29/14), 155 So.3d 54, 57 (quoting Ducombs v. Nobel Ins. Co. , 03-1704, p. 7-8 (La. App. 4 Cir. 7/21/04), 884 So.2d 596, 601 ). Expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge. Chavers v. Travis , 04-0992, p. 10 (La. App. 4 Cir. 4/20/05), 902 So.2d 389, 395 (citing Hutchinson v. Shah , 94-0264, p. 3 (La. App. 1 Cir. 12/22/94), 648 So.2d 451, 452 ). In Pfiffner v. Correa , 94-0924, 94-0963, 94-0992, p. 9-10 (La. 10/17/94), 643 So.2d 1228, 1234, the Louisiana Supreme Court explained:

[T]here are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof.

The conditions inside Touro were such that patients were exposed to "oppressive heat and humidity," inadequate ventilation, unsanitary conditions, and a lack of provisions including food and water. In light of the dangerous conditions inside Touro as established by Mr. Hirsch's testimony, coupled with Touro's admitted failures to provide basic services to safely care for its patients, Ms. Ainsworth contends expert testimony is not required to show that Touro's breach of duty caused Ms. Taylor's temporary suffering or wrongful death.

Ms. Ainsworth asserts that although Ms. Taylor is not alive to testify regarding the conditions at Touro or her injuries, the testimony of others provides circumstantial evidence which establishes what happened to Ms. Taylor. Ms. Ainsworth testified about her mother's condition before and after Hurricane Katrina. Ms. Ainsworth stated that prior to the storm Ms. Taylor was able to wash and feed herself and was able to walk with assistance. Her testimony is corroborated by Touro's progress notes, confirming that Ms. Taylor was "ambulatory" at some point on August 31, 2005. However, Ms. Taylor's medical records do not indicate what transpired between the time she was evacuated on August 31, 2005, and her admission to UT Southwestern the next day.

Ms. Ainsworth testified that she was not advised of her mother's discharge from Touro or her evacuation and transfer to UT Southwestern until September 3 or 4, 2005, when Ms. Ainsworth was contacted by a member of the media. Ms. Ainsworth stated that when she reunited with her mother, a few days later, Ms. Taylor appeared frail, confused, and unable to stand or get out of the bed. Ms. Ainsworth also testified that she was advised that the staff at UT Southwestern did not know what conditions to treat Ms. Taylor for because she arrived with only "pieces" of her medical chart.

Whether the plaintiff has met her burden of proving that it is more probable than not that the subsequent injuries were caused by the negligent act is reserved for the fact finder. It is settled law that the "trial judge cannot make credibility determinations on a motion for summary judgment." Indep. Fire Ins. Co. v. Sunbeam Corp. , 99-2181, p. 16 (La. 2/29/00), 755 So.2d 226, 236. While "the standard for granting a motion for summary judgment no longer encompasses a presumption in favor of a trial on the merits, a trial is designed to evaluate the facts when credibility is at issue." Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234. Thus, Ms. Ainsworth avers that when the considering the evidence as a whole, including Touro's admitted failures, the facts do not require an expert because the conduct about which she complains falls within the common knowledge and experience of the average lay jury. Conversely, Touro claims that Ms. Ainsworth must proffer medical expert testimony to establish that the alleged unreasonably dangerous conditions caused the types of damages Ms. Ainsworth claims.

Our finding on appellate review is two-fold. We find that the issue of whether the principal conduct about which Ms. Ainsworth complains caused Ms. Taylor temporary pain and suffering falls within the knowledge and experience of the average lay person. At the same time, we find that Ms. Ainsworth can only properly challenge Touro's conduct as having caused her mother's death through expert testimony.

To begin with, Ms. Ainsworth seeks general damages for pain and suffering. She alleges that because of Touro's actions and inactions, her mother experienced physical and emotional symptoms of dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety, and depression. The question is whether the admitted failures of Touro, if proven at trial, are so obvious that a lay person could rely on their common knowledge without the aid of expert testimony to determine the harm, if any, resulting to Ms. Ainsworth's mother. This Court has held that "[g]eneral damages for pain and suffering may be established in three ways: (i) the circumstances of the case, (ii) expert medical testimony, and (iii) the tort victim's testimony." Jones v. Capitol Enterprises, Inc. , 11-0956, p. 46-47 (La.App. 4 Cir. 5/9/12), 89 So.3d 474, 506 (citing Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort 47 Law § 7-2(c)(1996) ). We find that the physical and emotional symptoms Ms. Ainsworth claims her mother suffered are within the common knowledge of an average lay person or trial court to understand. Id. , 11-0956, p. 46, 89 So.3d at 506-07 (finding plaintiffs' claims for physical symptoms were "not esoteric" problems that required expert testimony). Given the facts presented, we find medical expert testimony is not required to establish causation for temporary pain and suffering.

Beyond the claim that Touro's failures caused temporary pain and suffering, Ms. Ainsworth also alleges that Touro's conduct caused or contributed to her mother's death. Touro disputes the wrongful death claim, pointing to Ms. Taylor's pre-existing lung cancer as the cause of her death. Touro therefore argues that without competent medical expert testimony Ms. Ainsworth cannot overcome summary judgment. It is undisputed that Ms. Taylor had pre-existing lung cancer and resumed treatment for the disease at UT Southwestern following the alleged negligent acts. In instances where the injury, in this case death, involves a patient with a complicated medical history, complex medical conditions, or a combination of the two, causation is "beyond the province of lay persons to assess." Pfiffner , 94-0924, 94-0963, 94-0992, p. 10, 643 So.2d at 1234. Under these circumstances, the plaintiff must show either she is entitled to a presumption of causation under Housley v. Cerise , 579 So.2d 973 (La. 1991) , or medical expert testimony supports a finding of causation. Maranto v. Goodyear Tire & Rubber Co. , 94-2603 (La. 2/20/95), 650 So.2d 757. When medical expert testimony is necessary, the plaintiff must demonstrate a causal nexus between the defendant's fault and the injury alleged." Pfiffner , 94-0924, 94-0963, 94-0992, p. 10, 643 So.2d at 1234. We find whether Touro's alleged negligent acts exacerbated Ms. Taylor's pre-existing condition and/or contributed to or caused Ms. Taylor's death is beyond the province of lay persons to assess; and therefore, Ms. Ainsworth must proffer expert testimony as to her wrongful death claim.

Discovery

Ms. Ainsworth asserts on appeal that in the instance this Court should find, as we do here, that expert testimony is required, the matter should be remanded to allow her an opportunity to obtain an expert. Touro maintains, however, that Ms. Ainsworth's failure to identify a medical expert to establish causation or produced factual evidence from which an expert could provide a reliable opinion is fatal to her case. It notes that over three years have passed since the initiation of the present lawsuit. Additionally, Touro avers that Ms. Ainsworth failed to take steps to obtain an expert to prove her case. Touro contends that as a result Ms. Ainsworth was not prejudiced when the trial court granted summary judgment.

"Although the language of [ La. C.C.P. art.] 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case." Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.), Ltd. , 03-1600, p. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969. Based on the facts presented, we find remand appropriate to allow Ms. Ainsworth an opportunity to conduct additional discovery. First, no discovery cutoff or expert designation deadline has been established. Second, evidence demonstrates that Ms. Ainsworth raised the discovery issue in her opposition to summary judgment, at the hearing, and in brief to this Court, requesting an opportunity to conduct additional discovery. Third, this Court recognizes the careful consideration, particularly given the case's current procedural posture, which is required to assess claims of negligence arising out of the aftermath of Hurricane Katrina and the complexity of the circumstances at that time. Therefore, we find summary judgment is premature. Pursuant to La. C.C.P. art. 966(A)(3), we find Ms. Ainsworth should be afforded a fair opportunity to present her case. Accordingly, the trial court's ruling granting summary judgment is reversed and remanded to allow Ms. Ainsworth an opportunity to conduct additional discovery and specifically to obtain a medical expert.

DECREE

On de novo review, we find that expert testimony is not required to establish that Touro caused Ms. Taylor's alleged temporary pain and suffering. However, expert testimony is required to establish whether the conditions inside Touro contributed to or caused Ms. Taylor's death given her pre-existing conditions. In that there was no discovery cutoff or expert designation deadline, we find Ms. Ainsworth is entitled to a full and fair opportunity to present her case, including medical expert testimony. Therefore, the trial court's ruling granting summary judgment is reversed and remanded to allow Ms. Ainsworth an opportunity to obtain a medical expert and conduct additional discovery.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULTS

      While the trial court focused on Ms. Ainsworth's wrongful death claim in dismissing Ms. Ainsworth's suit, Ms. Ainsworth's opposition to summary judgment, argument at the hearing and brief to this Court addressed the entirety of the complaint, which raised claims of temporary pain and suffering and wrongful death.

      The Housley court established that "[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition."

      We recognize that on remand expert testimony may also provide additional evidentiary support for Ms. Ainsworth's temporary suffering claims. Although we find under the present set of facts that such evidence is not required to meet her burden at trial on that particular issue, nothing in this opinion should be interpreted as precluding its use in later proceedings. Any questions as to the admissibility of evidence is determined by the trial court.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    DUNCAN OIL, INC. v. CALCASIEU PARISH SCHOOL BOARD
    17-488
    Court of Appeal of Louisiana, Third Circuit.
    February 28, 2018
    Russell J. Stutes, Jr., Stutes & Lavergne, LLC, 600 Broad Street, Lake Charles, Louisiana 70601, (337) 433-0022, Counsel for Defendant/Appellee: Calcasieu Parish School Board
    Lauren B. Bailey, Attorney at Law, 11716 Villa Avenue, Baton Rouge, Louisiana 70810, (225) 235-2865, Counsel for Plaintiff/Appellant: Duncan Oil, Inc.
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff filed a petition with the Louisiana Board of Tax Appeals (the Board) for a redetermination of sales tax assessed against it by Defendant. After a trial, the Board rendered judgment granting in part and denying in part the petition, setting forth the amount of tax owed by Plaintiff to Defendant and awarding Defendant interest, penalties, and attorney fees. Plaintiff appeals. Because Plaintiff has not shown that the Board's judgment was manifestly erroneous, we affirm.

FACTS AND PROCEDURAL HISTORY

Duncan Oil, Inc. (Duncan) specializes in oil and gas exploration and development. It owned three active and producing wells in Calcasieu Parish during the time relevant to this matter. On March 6, 2015, the Calcasieu Parish School Board (CPSB) assessed Duncan with $59,894.44 in sales and/or use tax, interest, penalties, and audit costs covering December 2010 through December 2013 (the Taxable Period). Soon afterward, Duncan petitioned the Board for a redetermination of the assessment against it, arguing that the CPSB had improperly classified non-taxable cleaning services as taxable repair services; improperly classified non-taxable charges as taxable gross proceeds in conjunction with a lease or rental; improperly classified other non-taxable services and charges as taxable services. Trial took place in June 2015, following which the Board took the matter under advisement. The Board issued a seven-page Order With Written Reasons on July 14, 2016, denying in part and granting in part Duncan's petition for redetermination, dismissing Duncan's claim and upholding the tax assessment subject to the modifications noted therein, awarding the CPSB audit costs and all applicable interest and penalties, along with attorney fees of ten percent of the amount due. Judgment was signed on August 30, 2016, in accordance with the previously issued written reasons, providing, in pertinent part, as follows:

V. The total amount due on the assessment of sales and use tax issued by the Calcasieu Parish School Board to Duncan Oil, Inc. for the period of December 2010 through December 2013 is calculated as follows:
Tax: $26,361.86 Interest through 8/31/16: $19,773.89 Penalties: $ 6,960.56 Attorney's Fees: $ 5,309.63 Audit Cost: $ 7,908.56 ________________________________________ TOTAL $66,314.50

Duncan timely appealed and is now before this court asserting the following assignments of error:

1. The trial court erred in finding non-taxable cleaning services as taxable repairs under R.S. 47:301(14)(g).
2. The trial court erred in finding non-taxable services in conjunction with rentals as taxable services under R.S. 47:302(B).
3. The trial court erred in awarding penalties, attorney's fees under R.S. 47:337.13.1, and audit costs under R.S. 47:337.75.

DISCUSSION

The standard of review applicable to this appeal was explicitly set forth by the Louisiana Supreme Court in International Paper, Inc. v. Bridges , 07-1151, pp. 9-10 (La. 1/16/08), 972 So.2d 1121, 1127-28 (quoting St. Pierre's Fabrication and Welding, Inc. v. McNamara , 495 So.2d 1295 (La.1986) ):

Judicial review of a decision of the Board is rendered upon the record as made up before the Board and is limited to facts on the record and questions of law. The Board's findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record .
As the [ Collector of Revenue v. ] Murphy Oil Co. [, 351 So.2d 1234 (La.App. 4 Cir. 1977) ] court annunciated:
In this type of case, the Board acts as a trial court, its findings of fact should be accepted where there is substantial evidence in the record to support them, and should not be set aside unless they are manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. If the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed .

With respect to the interpretation of tax laws, the supreme court has stated:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. This principle applies to tax statutes. It is only when there is reasonable doubt as to the meaning of a tax law that it should be strictly construed against the state and in favor of the taxpayer.

Tarver v. E.I. Du Pont De Nemours & Co. , 634 So.2d 356, 358 (La.1994).

Cleaning versus Repair

In its first assignment of error, Duncan asserts that the Board erred in finding that its invoices concerning the removal of paraffin deposits from the tubing used to extract the hydrocarbons from their source to its wells were taxable repairs under La.R.S. 47:301(14)(g). Citing Intracoastal Pipe Service, Co., Inc. v. Assumption Parish Sales & Use Tax Department , 558 So.2d 1296, 1299-00 (La.App. 1 Cir. 1990), writ granted in part, denied in part , 563 So.2d 863 (La.1990), Duncan argues that the paraffin removal should be classified as a non-taxable cleaning service rather than taxable repair.

Louisiana Revised Statutes 47:301 provides, in pertinent part, as follows:

(14) "Sales of services" means and includes the following:
(g)(i)(aa) The furnishing of repairs to tangible personal property, including but not restricted to the repair and servicing of automobiles and other vehicles, electrical and mechanical appliances and equipment, watches, jewelry, refrigerators, radios, shoes, and office appliances and equipment.

With regard to this issue, the Board noted the following in its written reasons:

In [the] case of [ Intracoastal Pipe ] Service, Co. Inc. v. Assumption Parish Sales and Use Tax Department, Assumption Parish School Board, Assumption Parish Police Jury , 558 So.2d 1296 (La. App. 1st Cir. 1990) the court held that cleaning oil field pipe or tubing is not a taxable service.
However, the Collector asserts the present facts are different from [ Intracoastal Pipe ] Pipe, supra . The Collector states that the service provided to Taxpayer in this case, the removal of paraffin from the pipe, is a taxable repair since hydrocarbons cannot flow through the pipe without the paraffin removal. The Collector argues that the cleaning in [ Intracoastal Pipe ] Pipe was aesthetically helpful but was not functionally required. In contrast, without the paraffin removal pipe will be unusable for the purpose for which it was intended.
There was very limited evidence introduced in this case due to the parties['] stipulation that the case be tried merely on documentary evidence. The Board finds that under the record evidence of this particular case, this paraffin removal is a repair as contemplated by R.S. 47:301(14)(g) and is therefore [ ] taxable.

It is evident from the Board's comprehensive reasons for judgment that it had a firm grasp of the law. The arguments that Duncan makes on appeal are essentially the same as those which it made before the Board. Given the lack of evidence presented by Duncan at the trial court level, the Board's stated rationale for ruling the way that it did, and Duncan's failure to give anything other than a conclusory assertion of why the Board's ruling was erroneous, we cannot say that the Board committed manifest error in upholding the tax assessed by the CPSB with regards to the invoices for paraffin removal. Duncan's first assigned error lacks merit.

Rentals

Duncan next argues that the Board erred in finding that services rendered in conjunction with rentals were taxable under La.R.S. 47:302(B). Relying on the supreme court's holding in Pot-O-Gold Rentals, L.L.C. v. City of Baton Rouge , 14-2154, p. 3 (La. 1/16/15), 155 So.3d 511, 512, Duncan insists that those services were "indisputably non-taxable" and that they remained so regardless of whether they were "performed for rental customers in conjunction with a rental." The arguments made by Duncan in relation to this alleged error are general in nature and no particular invoices are singled out for discussion.

The Board explained the following in its written reasons:

The next element of the assessment in dispute is the taxability of certain invoices introduced into evidence as Collector Exhibit G (Taxpayer exhibits: Duncan 2 through Duncan 7). Taxpayer contends that the exhibits represent non-taxable services in conjunction with rentals. The Collector argues that the entire amount of the invoices are gross proceeds of rentals, and that the services in connection with the rentals cannot be separated from the rentals and are therefore properly taxed as part of the rentals.

La. R.S. 47:302 B. states in pertinent part:

"B. There is hereby levied a tax on the lease or rental ...of each item of tangible personal property...
(1) at the rate of... on the gross proceeds derived from the lease or rental of the tangible personal...". (emphasis supplied)
An examination of the invoices at issue shows that sales tax was paid on part of the charges, but no tax [was] paid on the part of the invoices for certain charges associated with the rental such as: inspection charges, restocking charges, environmental safety surcharges, repair charges and protection charges.
Taxpayer asserts that its position is justified by the ruling in the case of Pot-O-Gold Rentals LLC v. City of Baton Rouge , 14-C-2154 (La. 1/16/15), 155 So.3d 511. In that case the "lessee" had the choice of three options: (1) lease the toilet with the cleaning charges; (2) lease the toilet without the cleaning charges, and (3) contract for only the cleaning services on a toilet that was not leased from Pot-o-Gold. However, in the current case it was not shown that the lessee had the option to decline the services at issue and procure them from another source.
It was not shown that these services were severable. Therefore, the "gross proceeds" include the items that are in dispute here, and are subject to sales tax.
Taxpayer objects to the taxability of certain invoices contained in Collector's exhibit H, namely Duncan exhibits 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
Taxpayer claims that no sales tax is due on an invoice from Roho Valves, Ex. Duncan 8. Taxpayer claims that the invoice represents a charge for a Disassembly and Assembly. There was no
testimony or other clarifying evidence offered in connection with this invoice. It appears from the invoice that there was a charge for replacing or doing some work on a Christmas Tree on a well. It is the ruling of the Board that the charge of $1,800 is taxable, but the charge of $602 for mileage is non-taxable transportation.
Taxpayer claims that no sales tax is due on invoices from Pioneer Well, Ex. Duncan 9, because the charges are for down-hole well service for maintenance and for operated rentals. Collector contends that the services are for repair services. There was no testimony or other evidence offered in regard to sufficiently detail the nature of the transaction. The taxpayer bears the burden of proof in challenging an assessment. The invoice alone does not show the Board that the charges are for something other than taxable repair services.
Taxpayer claims that no sales tax is due on an invoice from Precision Tool, Ex. Duncan 10, because the charges are to uninstall and install a pump and are not a repair. Collector contends that the services are for repair services. There was no testimony in regard to the nature of the services rendered. The Board rules that under the record evidence of this case that this item is taxable.
Taxpayer claims that no sales tax is due on an invoice from Total Pump, Exhibit Duncan 11, because the charges are for "Labor to adjust weights-Labor only" and are not a repair. Collector contends that the services are for repair services. The Board rules that under the limited record evidence of this case this item is taxable as a repair service.
Taxpayer claims that no sales tax is due on an invoice from Landry Services, Ex. Duncan 12, because the charges are for "Uninstall/Install Pump-labor only" and are not a repair. Collector contends that the services are for repair services. There was no testimony in regard to the nature of the services rendered. The Board rules that under the record evidence of this case this item is taxable as a repair service.
Taxpayer claims that no sales tax is due on an invoice from Green's Entergy Group, Ex. Duncan 13, because the charges are for "Damaged Rental Equipment." It appears from the invoice that the charge is for "rental/sale of damaged rental equipment" and "rental charges." The Board rules that the charges are part of the gross proceeds of rental of equipment and are subject to tax.
Taxpayer claims that no sales tax is due on invoices from Mi SWACO, Ex. Duncan 14, because the charges are for "Filtration Services under maintained and operated rentals. Not a bare Rental." There was no testimony or clarifying evidence in regard to this invoice. It appears from the invoice that the charges are for rental of equipment, which is clearly taxable. There is no readily apparent tie
to an operator from the face of the invoice. The Board rules that under the record evidence available in this case, the taxpayer has not met its burden, and these charges are subject to tax.
Taxpayer claims that no sales tax is due on invoices from Key Energy, Ex. Duncan 15, because the charges are for "Various charges for damaged items-indemnification-not a sale". There was no testimony in regard to these invoices, and no clarifying evidence on how the charge came about other than its tie to the rental contracts. The Board rules that under the limited record evidence that the taxpayer has not met its burden, and these charges are taxable as part of the gross proceeds of the rental.
Taxpayer claims that no sales tax is due on an invoice from EMS USA, Ex. Duncan 16, because the charges are for "Pipeline tie-in; assembly charges. Not taxable; immovable." It appears that Taxpayer contends that the charges are not taxable because they were services performed on immovable property. It appears to the Board from the context of the documents available that the services were for the original work on an immovable and are therefore not subject to tax. Taxpayer claims the isolated and occasional sale exemption should apply to the transactions referenced in Duncan 17 from Grottson Construction and Duncan 18 from Kaiser-Francis Management. Both invoices indicate that they were for the sale of tangible personal property. The invoice from Grottson Construction purports to charge both local and state sales tax. La. [sic]
La. R.S. 47:301(10)(c)(ii)(bb) excludes from the definition of "sale at retail" an isolated or occasional sale by a person not engaged in such business. There was no evidence presented to the Board to show how these sales qualified for the provisions of R.S. 47:301(10). However, the Collector obtained independent verification that Grottson qualified as an isolated sale. The Board rules in favor of the Taxpayer on that issue, and in favor of the Collector on the Kaiser-Francis Management sale.
Taxpayer claims that no sales tax is due on an invoice from Champions Pipe and Supply, Ex. Duncan 19, because the charges are for "Trucking expense". The invoice has a separately stated charge for trucking.
The Board notes that a regulation of the Secretary of the Department of Revenue that attempted to impose a tax on separately-stated transportation charges, LAC 61:4301: Sales price (a)(1)(c) , was declared invalid by the courts of this state in Pensacola Construction Company v. McNamara [,] 555 So.2d 1 (La. App. 1st Cir. 1989). There is no sales tax due for separately-stated trucking. Therefore, the Board rules there is no sales tax due on this item.

Duncan again fails to provide this court with anything other than a non-specific and conclusory assertion of why the Board's ruling was erroneous. It is obvious from the Board's reasons that it carefully considered whether the CPSB had imposed unwarranted taxes on Duncan. The Board did not give a blanket approval of the taxes assessed against Duncan, and it found that taxes were not due in four instances. Thus, in light of the record evidence, we cannot say that the Board committed manifest error concerning the taxability of services rendered in conjunction with rentals. Duncan's second assignment of error is meritless.

Penalties, Attorney Fees, and Audit Costs

In its final assigned error, Duncan submits that because its petition for redetermination had a "reasonable basis in law and fact," equity weighs against the imposition of penalties and attorney fees against it. It contends that it acted in good faith in challenging the taxes assessed against it and that the jurisprudence of this state recognizes a good-faith exception to the imposition of penalties and attorney fees.

Duncan next submits that it did not file any "grossly incorrect reports or false of fraudulent reports" so as to subject it to application of La.R.S. 47:337.75. Finally, Duncan submits that because that statute requires an understatement of taxes in an amount of greater than "$10,000.00 per taxable period" and each month is a separate taxable period, the Board erroneously assessed audit costs against it.

The Board's written reasons provide:

La. R.S. 47:337.75 authorizes the Board to assess examination and hearing costs when the taxpayer fails to make a return required by
law. The Taxpayer in this matter had failed to file the required returns. Examination and hearing costs are hereby assessed in accordance with the foregoing statute in the maximum percentage authorized by law. La. R.S. 47:337.13.1 provides for attorney's fees.

Louisiana Revised Statutes 47:337.75(A) (emphasis added) provides, in pertinent part, as follows:

If any taxpayer fails to make any return required by this Chapter, or makes a grossly incorrect report, or a false or fraudulent report, and the collector, in performance of his duty to ascertain the amount of tax due, makes an examination of books, records, or documents, or an audit thereof, or conducts a hearing, or subpoenas witnesses, then there may be added to the amount of tax found to be due, a specific penalty, in addition to any other penalty provided, in an amount as itemized by the collector to compensate for all costs incurred in making such examination or audit, or in holding such hearing, or in subpoenaing and compensating witnesses.

In addition, La.R.S. 47:337.13.1 authorizes the tax collector "to employ private counsel to assist in the collection of any taxes, penalties, or interest due." Here, after Duncan failed to file a return, the CPSB expended costs to have an audit performed, it hired an attorney, it challenged Duncan's petition for reassessment, and the Board rendered judgment awarding it substantially all of the tax sought in the assessment the CPSB sent to Duncan on March 6, 2015. Given the facts of this matter, we find no error in the part of the judgment that assessed penalties, attorney fees, and audit costs against Duncan.

DECREE

For the foregoing reasons, the judgment rendered by the Louisiana Board of Tax Appeals in favor of the Calcasieu Parish School Board and against Duncan Oil, Inc. is affirmed in its entirety. Costs of this appeal are assessed against Duncan Oil, Inc.

AFFIRMED.

      We find that the two cases cited by Duncan are distinguishable from this matter. The taxpayer in BP Oil Co. v. Plaquemines Parish Government , 93-1109 (La. 9/6/94), 651 So.2d 1322, paid the assessed tax and penalty under protest. In St. Pierre's Fabrication and Welding, Inc. v. McNamara , 495 So.2d 1295, 1298 (La.1986), the supreme court noted that although there were "factors mitigating against the taxpayer's good faith," there was "also substantial evidence in support of such a finding," such that the standard of review required it not substitute its judgment for that of the Board.


text:
    Denisia ALLEN (Michael Mack, Sr.) v. BLIND PELICAN
    NO. 2017-CA-0833
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 14, 2018
    Brian P. Sondes, 5000 W. Esplanade Avenue, No. 633, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT
    Rene' S. Paysse, Jr., Alejandro Rodriguez, JOHNSON UACOUBIAN & PAYSSE, 701 Poydras Street, Suite 4700, New Orleans, LA 70139-7708, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase )
    Judge Rosemary Ledet This is a workers' compensation case. The claimant, Denisia Allen, on behalf of her minor child, Michael Mack, Jr. ("Ms. Allen"), appeals the June 30, 2017 judgment of the Office of Workers' Compensation ("OWC"), granting the motion for summary judgment filed by the employer, Blind Pelican, and dismissing Ms. Allen's claim for death benefits under La. R.S. 23:1231. For the reasons that follow, we reverse and remand.
    FACTUAL AND PROCEDURAL BACKGROUND
    On December 26, 2015, Michael Mack, Sr. ("Mr. Mack") was employed as a prep cook by Blind Pelican, a restaurant. On that date, he worked his shift. At some point, he went into Blind Pelican's bathroom, where he suffered an apparent heart attack. He was transported by ambulance to Touro Hospital, where he died later that night. An autopsy revealed that the cause of death was "[h]emorrhagic infarct of the left basal ganglia with herniation"-a stroke or brain aneurysm. At the time of his death, Mr. Mack was thirty-three years old.
    On January 4, 2016, Ms. Allen filed a disputed claim for compensation (Form 1008), seeking death benefits. On the Form 1008, the accident or injury was described as "[a]pparent heart attack while on the job on December 26, 2015" and the details were noted as "[d]ecedent was found dead on floor in bathroom." The only medical data listed on the Form 1008 was the "New Orleans Coroner." Blind Pelican answered, denying Ms. Allen's claim to death benefits. In its answer, Blind Pelican raised as a defense, among other things, that Ms. Allen lacked procedural capacity to sue on the minor's behalf.
    On January 30, 2017, Blind Pelican filed a motion for summary judgment, claiming that Ms. Allen could not show by clear and convincing evidence that the decedent's death was "an injury by accident arising out of and in the course of employment" pursuant to R.S. 23:1021 (8)(e). On April 10, 2017, the hearing on the motion for summary judgment was held. Following the hearing, the OWC granted Blind Pelican's motion and dismissed Ms. Allen's claim. This appeal followed.
    DISCUSSION
    The sole issue presented is whether the OWC erred in granting Blind Pelican's motion for summary judgment. An appellate court reviews an OWC's decision to grant a motion for summary judgment de novo , using the same criteria that govern the OWC's consideration of whether summary judgment is appropriate. Abney v. Gates Unlimited, L.L.C. , 11-1242, p. 4 (La. App. 1 Cir. 5/4/12), 92 So.3d 1068, 1070.
    In addition to deciding whether there is no genuine issue of material fact making summary judgment appropriate (as decided by the OWC here), this case also presents the issue of whether the claimant, Ms. Allen, had adequate time for discovery before the rendition of summary judgment. The OWC's decision to not continue the motion for summary judgment to allow additional discovery is reviewed under an abuse of discretion standard. Baker Ready Mix, LLC v. Crown Roofing Servs., Inc. , 15-0565, pp. 6-7 (La. App. 4 Cir. 12/16/15), 183 So.3d 622, 626 (quoting Simoneaux v. E.I. du Pont de Nemours and Co. , 483 So.2d 908, 912 (La. 1986) ); Roadrunner Trans. Sys. v. Brown , 17-0040, p. 11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (observing that "[w]hen discovery is alleged to be incomplete, a trial court has the discretion either to hear the summary judgment motion or to grant a continuance to allow further discovery"). Because we find the prematurity issue dispositive, we limit our analysis to that issue.
    The governing statutory provision, La. C.C.P. art. 966, provides that a motion for summary judgment shall be granted if, "[a]fter an opportunity for adequate discovery," 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). This statutory provision further provides that "[f]or good cause shown, the court may order a continuance of the hearing." La. C.C.P. art. 966(C)(2). In determining whether "good cause" exists for granting a continuance, the jurisprudence has identified the following factors to be considered: due diligence, good faith, reasonable grounds, fairness to both parties, and the need for the orderly administration of justice. Rogers v. Hilltop Ret. & Rehab. Ctr. , 13-867, p. 4 (La. App. 3 Cir. 2/12/14), 153 So.3d 1053, 1058.
    This court has recognized that " 'while parties must be given fair opportunity to carry out discovery and present their claim, there is no absolute right to delay action on motion for summary judgment until discovery is complete.' " Hayes v. Sheraton Operating Corp. , 14-0675, p. 4 (La. App. 4 Cir. 12/10/14), 156 So.3d 1193, 1197 (quoting Thomas v. N. 40 Land Dev., Inc. , 04-0610, p. 31 (La. App. 4 Cir. 1/26/05), 894 So.2d 1160, 1179 ). This court has further recognized, in applying La. C.C.P. 966, that " '[u]nless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.' " Orleans Parish Sch. Bd. v. Lexington Ins. Co. , 12-1686, p. 30 (La. App. 4 Cir. 6/5/13), 118 So.3d 1203, 1223 (quoting Simoneaux , 483 So.2d at 912-13 ).
    This court has still further recognized that summary judgment is premature when "the party opposing summary judgment was not afforded a reasonable opportunity to take relevant depositions prior to being required to defend against the motion for summary judgment." Schultz v. Cox Operating, LLC , 17-0165, p. 8 (La. App. 4 Cir. 1/31/18), --- So.3d ----, ----, 2018 WL 651372, *3 (citing Doe v. ABC Corp. , 00-1905, p. 11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143 ).

      Given Mr. Mack's cause of death was a stroke or brain aneurysm, Blind Pelican contends that the governing statutory provision is La. R.S. 23:1021(8)(e), which provides as follows:
      A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
      (i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
      (ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

   In addressing a prematurity claim, this court has identified the following five factors to be considered:

• Whether the party was ready to go to trial;
• Whether the party indicated what additional discovery was needed;
• Whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it;
• Whether the discovery issue was raised in the trial court before the entry of the summary judgment; and• Whether discovery has been hindered by a circumstance beyond an opponent's control.

Schultz , 17-0165 at p. 8 (La. App. 4 Cir. 1/31/18), --- So.3d at ----, 2018 WL 651372 at *4 ; Roadrunner Transp. , 17-0040 at p. 14, 219 So.3d at 1274 ; Bass P'ship v. Fortmayer , 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75 (citing Greenhouse v. C.F. Kenner Assocs. Ltd. P'ship , 98-0496, p. 3 (La. App. 4 Cir. 11/10/98), 723 So.2d 1004, 1006 ).

The first factor is premised on the fact that in a civil case a party generally certifies, as a prerequisite to setting the case for trial, that discovery is complete and that the case is ready for trial. Greenhouse , supra . (quoting an Orleans Parish Civil District Court local rule and observing that the plaintiff's filing of two motions to set trial was sufficient to suggest that all discovery had been completed); see also Crawford v. City of New Orleans , 01-0802, p. 6 (La. App. 4 Cir. 1/23/02), 807 So.2d 1054, 1057. This case, however, is a workers' compensation case. Workers' compensation cases are governed by La. R.S. 23:1317, which provides that "[t]he workers' compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be." The first factor is thus inapposite here.

Because our analysis of the remaining four factors overlaps, we address those factors together. On March 7, 2017, one month before the hearing, Ms. Allen filed an opposition to the motion for summary judgment, contending that Blind Pelican had failed to answer any discovery filed by her counsel in April 2016, one year before the hearing. In her opposition, she further stated that her counsel was filing a motion to compel the discovery filed in April 2016 that was unanswered. On that same date (March 7, 2017), Ms. Allen filed an amended opposition memorandum stating the following:

[H]er counsel has just received Answers to Interrogatories on the 6th day of March, 2017 after numerous requests. That the answers are incomplete and what answers do appear do not allow for the investigation of those individuals who were working with decedent at the time of his passing at the Blind Pelican, his employer. That she requests more time to determine the information of those individuals having personal knowledge of the death of Michael Mack, Sr.

At the hearing, Ms. Allen's counsel explained that he was thwarted in his attempts to find the individuals who were working with the decedent, Mr. Mack, due to Blind Pelican's failure to answer the interrogatories until March 2017. This information regarding Mr. Mack's co-employees was needed to establish the nature of Mr. Mack's work as a prep cook, in general, and on the day of the incident, in particular. Moreover, Ms. Allen's counsel explained that the name of one of the co-employees provided by Blind Pelican in March 2017 was incorrectly spelled "Chenery;"

the correct spelling is "Cheneau." Ms. Allen's counsel further explained that he had recently, only days before the hearing, located this other employee, who was working at another restaurant. In response to the OWC's inquiry as to what he would do if granted a thirty-day continuance, Ms. Allen's counsel replied that he would take the deposition of Blind Pelican's manager.

At the hearing, the OWC made an express finding that Blind Pelican failed to provide the discovery responses to Ms. Allen until March 7, 2016, a month before the hearing. Nonetheless, the OWC denied Ms. Allen's request for a brief, thirty-day continuance to conduct discovery. In so doing, the OWC, at least in part, relied on Ms. Allen's failure to provide proof of her procedural capacity to sue on the minor's behalf.

The issue of Ms. Allen's procedural capacity-her failure to secure a signed tutorship judgment-was raised by Blind Pelican's counsel at the hearing when the OWC was entertaining Ms. Allen's request for a brief continuance. At that juncture, Blind Pelican's counsel reminded the OWC that Ms. Allen's counsel was ordered to supplement the record with letters of tutorship several months earlier, yet he had failed to do so. Upon Ms. Allen's counsel confirming that he had failed to do so, the OWC granted Blind Pelican's motion for summary judgment. This procedural capacity issue, however, was not properly before the OWC. See La. C.C.P. art. 966(F) (providing that "[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time"). The 2015 Comments to La. C.C.P. art. 966 state that "Paragraph F makes clear that, in deciding a motion for summary judgment, a court can consider only the issues raised in the motion or opposition filed by the parties. The court cannot rule on issues not raised by the parties." The trial court thus erred in relying on this issue to grant the motion.

On appeal, Blind Pelican contends that Ms. Allen took no steps to conduct discovery between the time the motion for summary judgment was filed (January 2017) and the hearing on the motion (April 2017). This argument, however, overlooks that the OWC found Blind Pelican did not respond to Ms. Allen's earlier filed discovery requests until March 2017, only a month before the hearing. Moreover, Ms. Allen, in her supplemental opposition to the motion, asserted that the discovery responses were inadequate. Likewise, at the hearing, Ms. Allen's counsel voiced difficulty in locating Mr. Mack's co-employees with the limited information Blind Pelican belatedly provided him in March 2017.

Given Blind Pelican's hampering of Ms. Allen's discovery efforts by failing to respond to the discovery requests until March 2017 coupled with the OWC's reliance on an issue not properly before it to decide the motion, we conclude, under the particular facts of this case, that the OWC abused its discretion in rejecting Ms. Allen's request for a brief, thirty-day continuance to complete discovery.

DECREE

For the foregoing reasons, we reverse the judgment of the Office of Workers' Compensation, granting the Blind Pelican's motion for summary judgment, and remand.

REVERSED AND REMANDED

      Nevertheless, it is undisputed that Ms. Allen was not ready for the trial, which was set for July 2017. At the time of the hearing, no depositions had been taken by either party. Indeed, Blind Pelican's counsel, when questioned by the OWC whether there was any proof of the fact that Mr. Mack had "clocked out" when the incident occurred-as Blind Pelican contends-acknowledged that no depositions had been taken.

      Ms. Allen's counsel also apologized to the court for the delay in pursuing the case caused by his own health problems-a shoulder replacement surgery-and thanked the court and opposing counsel for granting him a continuance due to his health problems. As to the continuances, we note that Blind Pelican represents in its appellee brief to this court that the case had been set for trial four times and continued three times; and it attaches the trial court's four notices of trial to its appellee brief. The record on appeal, however, does not contain a copy of those trial notices. This court is a court of record and can only consider evidence in the record. Miccol Enterprises, Inc. v. City of New Orleans , 12-0864, p. 6 (La. App. 4 Cir. 12/19/12), 106 So.3d 746, 750. Regardless, we note that the OWC, at the hearing, stated that the matter "has been continued a couple of times."


author: Judge Daniel L. Dysart

text:
    Daphne Richardson VALTEAU v. FIRST MERCURY INSURANCE COMPANY, et al.
    NO. 2017-C-0889
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 14, 2018
    Christina A. Culver, Kevin F. Risley, Robert J. Bridger, Thompson, Coe, Cousins & Irons, LLP, One Riverwway, Suite 1400, Houston, TX 77056, COUNSEL FOR DEFENDANT/RELATOR
    Philip E. Reso, Thomas C. Cowan, Cowan & Lemmon, LLP, 111 Veterans Boulevard, Suite 1050, Metairie, LA 70001, Paul R. Valteau, Jr., Valteau, Harris, Koenig & Mayer, 1010 Common Street, Suite 2700, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/RESPONDENT
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Dennis R. Bagneris, Sr., Pro Tempore)
   Judge Daniel L. Dysart

Relator, First Mercury Insurance Company, seeks review of the trial court's ruling of October 16, 2017, denying the relator's Motion for Summary Judgment. Relator sought a writ of certiorari from this Court, which convened a five-judge panel and heard oral argument.

Relator seeks dismissal, with prejudice, of the claims made against it by plaintiff, Daphne Richardson Valteau, whose father was stabbed to death in an incident which took place at the property owned and/or operated by The Terraces Limited Partnership, d/b/a The Terraces on Tulane ("The Terraces"), and managed by Latter & Blum Property Management, Inc.

Patriot Protection Agency, Inc., ("Patriot") was the company hired to provide security services at The Terraces at the time of the stabbing. Relator was the liability insurance carrier for Patriot and was brought into the action in a Fourth Supplemental and Amending Petition filed in December 2016.

The policy issued by relator to Patriot, which was in effect at the time of the incident, provided the following "Exclusion of Specific Work":

Notwithstanding anything to the contrary contained in the policy or any endorsement attached thereto, it is agreed that this insurance does not apply to "Bodily Injury", "Property Damage," or "Advertising Injury" arising out of the rendering of or failure to render any services described in the Schedule of Excluded Operations contained in this endorsement, regardless of whether such operations are conducted by you or on you [sic] behalf. This endorsement applies even if other causes contribute to or aggravate the "Bodily Injury," "Property Damage," "Personal Injury" or "Advertising Injury."
?Description of Excluded Operations:
...
Any and all operations at, or arising from, any government owned residential facility, or any such facility established for the purpose of providing subsidized housing, whether owned or subsidized by a municipal, state or federal government, or any subdivision or agency thereof.

On its face, it appears relator's argument is in line with Hickey v. Centenary Oyster House, 97-1074 (La. 10/20/98), 719 So.2d 421, and Michelet v. Scheuring Security Services, Inc., 95-2196 (La.App. 4 Cir. 9/4/96), 680 So.2d 140, wherein the Supreme Court and this Court held that intentional or criminal acts exclusions are valid and enforceable under the plain language terms contained in the contract.

However, the exclusion contained in relator's policy with Patriot is quite distinguishable. The provisions contained in relator's policy exclude coverage for "... any such facility established for the purpose of providing subsidized housing ...."

Ostensibly, relator's exclusion excludes all coverage to its insured, Patriot. There is no act of any nature whatsoever that would afford Patriot coverage if the event occurred on a property such as described in the exclusion.

We therefore find there are facts which require further development and that this matter is not ripe for summary judgment at this time. Those issues include whether the endorsement is ambiguous, for if applied as requested, the policy is completely worthless to Patriot; whether the definition in the exclusion as applied to The Terraces violates any state or federal housing laws; and, whether the policy met the licensing requirements of La. R.S. 37:3276 E, which requires Patriot to carry liability insurance, considering there is no coverage afforded when the exclusion is applied.

For these reasons, we find there remain genuine issues of material fact and deny the relief sought.

WRIT GRANTED; RELIEF DENIED

Lobrano, J., Concurs in the Result

Bartholomew-Woods, J., Concurs in the Result


author: Judge Dennis R. Bagneris, Pro Tempore

text:
    STATE of Louisiana v. Janero L. MCBRIDE
    NO. 2017-KA-0788
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    Leon Cannizzaro, Jr., District Attorney, Kyle C. Daly, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, LA 70420, COUNSEL FOR APPELLANT/JANERO L. MCBRIDE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore)
   Judge Dennis R. Bagneris, Pro Tempore

Defendant, Janero L. McBride, appeals his convictions and sentences on three counts of criminal activity. For reasons that follow, we affirm the convictions and sentences.

PROCEDURAL HISTORY

On August 27, 2015, a grand jury returned an indictment charging both Janero McBride and Jacob Love with the second degree murder of Toby Roche, in violation of R.S. 14:30.1 ; two counts of attempted second degree murder of Dejon Miguel and Malik Miguel, in violation of R.S. 14:27 ; and one count of obstruction of justice (in connection with the murder of Toby Roche) when the punishment is death or life imprisonment at hard labor, in violation of R.S. 14:130.1(B)(1).

On February 16, 2017, Jacob Love entered into a plea agreement with the State on all charges. As for Janero McBride, the obstruction of justice charge was severed and ultimately dismissed, while the remaining charges were tried to a jury that returned a guilty verdict on all charges. McBride was sentenced to life imprisonment on count one and thirty years each on counts two and three, all sentences to run concurrently at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant timely appeals his convictions and sentences to this Court.

STATEMENT OF FACTS

During the course of defendant's two-day trial, the jury heard testimony from several New Orleans Police Department officers and detectives who investigated the shooting incident or who were otherwise involved with the incident; they heard testimony from the sister of the deceased shooting victim; testimony from a forensic pathologist; and testimony from Jacob Love.

Sergeant Walter Powers, Commander of the Communications Unit of the New Orleans Police Department (NOPD), testified that NOPD received a 9-1-1 call reporting a homicide on May 13, 2015 at 2:29 p.m. from Melba's Café on Elysian Fields Avenue. The caller described the shooter as a black male wearing a black T-shirt and black face mask and driving a burgundy car. The dispatch report further indicated that a possible suspect was hiding under a house on Spain Street. Another call received at 2:55 p.m. reported that a victim named Dejon Miguel had been admitted to University Hospital. Neither a name nor a physical description of the perpetrator was provided in either call.

NOPD Detective Johnny Magee testified that he was driving to the police station down North Robertson when he heard gunshots coming from Melba's on the opposite side of the street. When he looked in the direction of the gunshots, he observed a male with a black towel or shirt covering his face who was shooting at another car. Detective Magee pulled into a parking lot and called for assistance on his radio. He observed one of the vehicles exit Melba's parking lot and drive down Marais Street. Detective Magee pursued a white Hyundai, but he was unable to maintain its location. When asked about surveillance video that recorded the incident, Detective Magee indicated that the video showed a man exit a white vehicle and shoot at a red vehicle. As the shooter walked back to his car, the video showed Magee's police unit passing the scene. Detective Magee admitted that he could not identify the initial shooter, that he was unaware of the number of occupants in the vehicle, and that he did not know the vehicle's license plate number, although he believed the car had a Florida plate.

NOPD Homicide Detective Ryan Vaught testified that the incident involved several crime scenes, and he assisted in processing the scene at Melba's. Detective Vaught observed that many vehicles in the parking lot sustained damage during the shooting, and the ground was littered with spent cartridge casings that were collected as evidence. At least one casing was fired from a forty-caliber Smith and Wesson. Detective Vaught explained that he was able to obtain the surveillance footage from Melba's that recorded the incident. He did not conduct any witness interviews at the scene, however.

NOPD Homicide Detective Tindell Murdock, Jr., testified that he was initially assigned to process the crime scene at Melba's with Detective Vaught by helping to locate all of the physical evidence at the scene. Subsequently he was reassigned to the scene in the 2300 block of Marais Street, where possible suspects may have discarded evidence from a vehicle as they fled. At the Marais Street crime scene, Det. Murdock collected two forty-caliber Glock semi-automatic weapons, shattered magazine pieces, and several live rounds that appeared to have been ejected from the broken magazines.

NOPD Homicide Detective Rayell Johnson was the lead detective on the case. He testified that, in addition to the crime scenes at Melba's and at Marais Street, there was a third crime scene at the corner of Crozat and Iberville Streets where the deceased body of Toby Roche was discovered in the passenger seat of a red Honda Accord. Detective Johnson observed multiple bullet holes all over the vehicle. Detective Johnson also testified that Dejon Miguel, another shooting victim, had been relocated to a nearby hospital where he was treated for gunshot wounds to his back and both of his hands.

At the time that the red vehicle was discovered, the doors were open, spent cartridge casings had collected on the front windshield, both the windshield and passenger side door were riddled with bullet holes, and the rear windshield had been shot out. There was blood on the steering wheel and throughout the interior, and a loaded handgun was found on the floorboard behind the passenger seat.

Detective Johnson testified that ballistic testing revealed that the bullet casings recovered from Melba's parking lot were fired from the guns found at the Marais Street scene, and the casings recovered from the deceased's vehicle were fired from the gun found on the floorboard of the same vehicle. NOPD Crime Lab ballistics expert, Sean McElrath, testified that twenty casings at Melba's were fired from one of the forty-caliber Glock semiautomatic handguns recovered from the Marais crime scene and eight were fired from the other. Additionally, eight casings recovered from the search of the victims' car at NOPD headquarters were fired from a nine millimeter Smith and Wesson found in the victims' vehicle.

Once Detective Johnson finished processing the crime scene at Crozat and Iberville Streets, he went to the homicide office to interview a suspect, Jacob Love. Following the interview, he obtained an arrest warrant for both Love and defendant. Detective Johnson testified that approximately one month later, federal marshals located and arrested defendant in Austin, Texas and returned him to New Orleans. Detective Johnson took DNA samples from Jacob Love and from defendant, but neither the suspects' nor the victims' "identities" were discovered on any of the weapons recovered.

Detective Johnson interviewed Dejon Miguel at the hospital, but "he said he didn't see anything, didn't know anything, [and] wasn't cooperative." Upon viewing the surveillance video footage that Detective Vaught had recovered from Melba's, Detective Johnson agreed that the footage showed three individuals, identified as the victims, entering their vehicle in Melba's parking lot when a white car, belonging to the perpetrators, pulled into the lot. The footage showed the passenger in the white car firing a gun multiple times. It appeared to Detective Johnson that the driver of the white car fired at the victims' vehicle first, the victims returned fire, and then the passenger door of the white car opened and the passenger shot at the rear of the victims' vehicle.

Detective Johnson also pointed out that Officer Magee's police vehicle appears at the top of the surveillance video frame just as the shooting began. According to Detective Johnson's narration of the surveillance footage, the police unit then pulled into a lot and turned around in time to chase the perpetrators as they fled in their vehicle. The footage also shows the victims' vehicle fleeing the scene.

On cross-examination, Detective Johnson admitted that all of the information contained in the warrant for defendant's arrest was supplied by Jacob Love. He stated that none of the bullet casings or the weapons discovered at any of the crime scenes contained defendant's DNA or fingerprints. Although the crime lab was able to recover DNA from the guns involved, the DNA recovered from the Victims' gun belonged to Troy Scott, who he did not believe was in the victims' vehicle during the shooting. The DNA recovered from the perpetrator's gun belonged to Cornell Gilbert, but Jacob Love had not implicated Cornell Gilbert in his statement. Detective Johnson was not able to locate Troy Scott or Cornell Gilbert during his investigation of this matter.

Jacob Love, the former codefendant in the instant case, testified that in May of 2015 he was living in the Marigny district near Spain and Urquhart Streets and had been working as a waiter at Mandina's for nearly two years. Love stated that he had known defendant since they were kids; they grew up together in the Seventh Ward. On May 13, 2015, Love asked defendant to drive him to his workplace. After defendant picked up Love from his residence, they drove to Melba's to conduct a narcotics transaction. While they were waiting to make the transaction, Love observed three individuals whom he recognized as residents of the Fourth Ward, including Dejon Miguel, walking across the street. Love testified that there had been a continuing feud between the Fourth and Seventh Ward residents, and he and the defendant and several others had engaged in a verbal altercation with these individuals at a concert three days before the shooting. Love stated that when the three individuals entered their car, defendant removed his shirt and used it to cover his face, exited the vehicle, and began shooting at the victims. The victims returned fire, so Love stuck his arm out of the passenger door and also began shooting at the victims.

After the shooting, defendant and Love fled in their vehicle down Marais Street. As they fled, Love threw both his gun and defendant's gun out of the vehicle's window on Marais between Mandeville and Spain Streets. At some point Love also jumped from the moving vehicle and proceeded on foot toward his house. The police apprehended Love twenty minutes later in his next-door neighbor's yard and transported him to police headquarters.

During his interrogation, Love initially indicated that there were three people in defendant's car, but he later corrected himself, stating that only he and defendant were in the vehicle. At all times, however, Love maintained that defendant instigated the shooting. Love also selected defendant's picture from a "six-pack lineup" that he viewed during the interrogation. Love also identified defendant as the perpetrator during his trial testimony. Furthermore, Love admitted that he had entered into an agreement with the State-in exchange for guilty pleas in the instant case, he would receive a twenty-year prison sentence.

On cross-examination, Love admitted that he had been on probation for possession of heroin with the intent to distribute and had another previous conviction for distribution of cocaine. Love testified that he had been carrying a gun for protection on the day of the shooting because he had been shot in the past. He admitted to initially telling the detectives that the gun was not his. He also admitted that he initially denied any involvement in the shooting and denied throwing the guns out of the vehicle. Love also denied writing a letter that named the real perpetrator as Clarence Johnson, though Love indicated that he was aware of such a letter.

On redirect, Love testified that he initially lied to the detectives because he was confused and scared, but he finally admitted the truth because it weighed on his conscience and he felt it was the right thing to do. Love stated that Dejon Miguel was the intended target; Love did not know the deceased victim, Toby Roche.

As for the letter naming Clarence Johnson as the perpetrator, Love testified that he had seen defendant write the letter when they were housed together awaiting trial. Love testified that he did not write or sign the letter, he did not instruct defendant to write it, and nothing contained in the letter was true.

Orleans Parish Chief Forensic Pathologist, Samantha Huber, performed the autopsy on the deceased, Toby Roche, on May 14, 2015. She testified that Roche sustained three gunshot wounds : one in his back, which perforated his left lung and fractured two ribs before exiting his body; one in his lower back, which hit his liver, right kidney, pancreas, and stomach before exiting his body; and one straight through his right thigh, which punctured only muscle and skin. Dr. Huber stated that the gunshot to his thigh would have been "survivable,"

but the two gunshots to his back, which perforated several major organs, were fatal. She listed the deceased's cause of death as a homicide.

After deliberating, the jury returned a verdict of guilty on all three counts. Defendant waived sentencing delays, and he was sentenced to life without parole, probation, or suspension of sentence on the second degree murder charge, and 30 years for each count of attempted second degree murder, the sentences to be served concurrently.

Defendant appeals his convictions and sentences.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

Defendant's first assignment of error asserts that the evidence was insufficient to sustain the conviction, because Love's testimony, as the sole evidence that the State presented to implicate defendant in this case as an accomplice to the crimes, cannot sustain the guilty verdict.

The Supreme Court provided the standard for review of a claim of insufficiency of the evidence in Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) :

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana , 406 U.S., [356] at 362, 92 S.Ct. [1620] at 1624-1625 [32 L.Ed.2d 152 (1972) ]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Emphasis in original).

"Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court." State v. Jones , 11-0649, p. 3 (La. App. 4 Cir. 10/19/11), 76 So.3d 608, 611 (citing State v. Juluke , 98-341 (La. 1/8/99), 725 So.2d 1291, 1293 ). "The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction." State v. Wells , 10-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64 So.3d 303, 306.

Under La. R.S. 14:30.1, second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. "Specific intent" is the state of mind that exists when circumstances indicate that the offender actively desires the prescribed criminal consequences to follow his act. La. R.S. 14:10(1). "Specific intent need not be proven as fact but may be inferred from the circumstances and the actions of the accused." State v. Hickman , 15-0817, p. 11 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1167. The use of a deadly weapon in lethal circumstances will support a finding of specific intent. State v. Brown , 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18.

In this case, the State presented surveillance video footage of the incident. According to the record, the surveillance video depicted three men crossing the street and entering a red vehicle parked at Melba's. A white vehicle then pulled into the parking lot and the driver exited, wearing something around his face to conceal his identity, and began shooting into the red vehicle that the three men occupied. Shortly thereafter, police located the red vehicle, which was riddled with bullet holes and had been abandoned. The deceased was discovered inside the vehicle with three gunshot wounds, two of which caused his death. Of the two surviving victims, one sustained several non-fatal gunshot wounds ; the status of the other is unknown, other than that he had been subjected to a barrage of gunfire while inside the red vehicle at Melba's.

Furthermore, Jacob Love testified at trial that he was present at the scene and witnessed the events unfold. He testified that he was a passenger inside defendant's vehicle when defendant observed Dejon Miguel, a surviving victim in this case, enter a vehicle that was parked at Melba's with two other men. Defendant had been involved in an altercation with Miguel earlier that week due to a long standing rivalry between residents of their respective neighborhoods. Love testified that defendant removed his shirt and tied it around his face, exited his vehicle, and opened fire on the three occupants of the red vehicle. An occupant of the red vehicle returned fire, so Love opened the passenger door of defendant's car and fired his gun into the red vehicle as well. As Love and defendant fled the scene, Love disposed of the two guns by throwing them out of the car window. Love identified defendant in the courtroom as the perpetrator and instigator of the shooting.

Defendant argues that uncorroborated accomplice testimony should not be given the same weight as other eyewitness testimony when no physical evidence presented at trial confirmed his identity as the assailant, and therefore the State's proof did not establish his guilt beyond a reasonable doubt. Defendant presents no authoritative support for this assertion, although in his second assignment of error, discussed below, he cites State v. Schaffner , 398 So.2d 1032, 1035 (La. 1981), for the proposition that the court's failure to instruct the jury to treat uncorroborated accomplice testimony with caution constitutes reversible error. In Schaffner , Justice Lemmon's concurrence observes that uncorroborated accomplice testimony is sufficient to sustain a conviction:

In some jurisdictions the uncorroborated testimony of an accomplice cannot sustain a conviction. See Pollard v. State , [264 Ark. 753] 574 S.W.[2d 656] 2656 (Ark. 1978) ; Jones v. State , 368 So.2d 1265 (Miss. 1979). Louisiana, wisely in my opinion, has not adopted this rule. State v. Matassa , 222 La. 363, 62 So.2d 609 (1953) ; State v. May , 338 [339] So.2d 764 (La. 1976). In Louisiana the weight to be accorded to the testimony of an accomplice is determined by the jury (or the judge in a bench trial), which is the sole arbiter of the credibility of witnesses. See C.Cr.P. art. 802(3).
* * *
Louisiana judges are statutorily prohibited from commenting to the juries on the credibility of witnesses. See C.Cr.P. arts. 772 and 806. This rule constitutes legislative recognition that it is exclusively the jury's function to assess credibility. See C.Cr.P. art. 802(3). Jurors can (and must) call upon the sum total of their experience with other human beings in performing this most difficult and critical task. Jurors do not need to be "warned" about the probability that an accomplice may have misrepresented the facts in an effort to save himself from a more severe penalty. R.S. 15:492 allows liberal cross-examination to expose the bias or interest of witnesses, including accomplices who become prosecution witnesses.

Schaffner , 398 So.2d at 1036 (Lemmon, J., concurring).

The Third Circuit recently considered the issue of whether "the principle of caution regarding accomplice testimony applies to [a defendant's] sufficiency of the evidence argument." State v. Kato , 12-1356, p. 2 (La. App. 3 Cir. 5/15/13), 157 So.3d 695, 698. In this context, the Third Circuit treated the accomplice testimony as any other eyewitness testimony, stating:

[C]redibility assessments are within the province of the fact-finder, in this case the jury. A jury may "accept or reject, in whole or in part," any witness's testimony. State v. Silman , 95-0154, p. 12 (La. 11/27/95), 663 So.2d 27, 28. Clearly, the jury believed the [witness's] version of events, and [defendant's] brief offers no concrete reason why the jury's conclusion should be considered unreasonable. This court will overturn a jury's credibility assessment only when a witness's own testimony demonstrates that the witness's ability to perceive events was impaired in some way.

Id. at pp. 2-3, 157 So.3d at 698. Additionally, the Louisiana Supreme Court has stated (notwithstanding the separate issue of a trial court's refusal to give requested, precautionary jury instructions) that as a general proposition of Louisiana law, uncorroborated accomplice testimony is sufficient evidence to sustain a conviction. State v. Hollins , 08-1033, p. 4 (La. 6/26/09), 15 So.3d 69, 71 (citing State v. Tate , 01-1658, p. 4-5 (La. 5/20/03), 851 So.2d 921, 928, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ).

Here, the jury apparently chose to believe Love's testimony that he saw defendant wrap a shirt around his face, exit his vehicle, and open fire on the victims' vehicle. Other than the mysterious letter that Love claimed he did not write, there does not appear to be any evidence in the record that materially contradicts his testimony. The video surveillance footage, the discovery of the discarded guns on Marais Street, and the ballistics evidence tying the casings recovered from Melba's to the two discarded guns all corroborate Love's testimony such that the jury could rationally rely on the evidence to reach its verdicts. Viewing the evidence in the light most favorable to the prosecution under Jackson v. Virginia , supra , a rational fact finder could have found that defendant committed the crimes charged beyond a reasonable doubt. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant's second assignment of error argues that the trial court erred in failing to instruct the jury that uncorroborated accomplice testimony should be treated with caution, citing Schaffner :

Where the state's case relies upon the uncorroborated testimony of an accomplice, the trial judge should instruct the jury to treat such testimony with caution; however, such a cautionary instruction is not necessary in all cases in which an accomplice testifies on behalf of the state. Where there is material corroboration of the accomplice's testimony, the cautionary accomplice instruction is not required. State v. Murray , 375 So.2d 80 (La. 1979) ; State v. May , 339 So.2d 764 (La. 1976) ; United States v. Lee , 506 F.2d 111 (D.C. Cir. 1974), cert. denied , 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975). The matter is one within the sound discretion of the trial court. As noted in Lee , it is enough if there is evidence that confirms material points in an accomplice's tale, and confirms the defendant's identity and some relationship to the situation.

398 So.2d at 1035. Notably, the assignment of error at issue in Schaffner , from which this quote is taken, is whether the trial court committed reversible error in refusing to give defendant's requested jury instruction to treat uncorroborated accomplice testimony with caution. Id. at 1033. The instant case is distinguishable because here, defendant did not ask the trial court to instruct the jury regarding accomplice testimony. Without such a request, defendant is precluded from raising this as an assignment of error under La. C.Cr.P. art. 801 (C), which provides:

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

In this case, on the morning of the second day of trial and out of the presence of the jury, the court asked if either party planned to file any requests for special jury instructions. Defendant responded that he had already filed one request: that the court instruct the jury that a conviction of second degree murder carried a mandatory life sentence. Defendant indicated that he did not plan to file any additional requests. Following the evidentiary portion of the trial, the court reviewed the proposed jury instructions in chambers in the presence of defendant and counsel for both parties. The State requested an instruction that the jury may infer guilt from defendant's flight from justice. Defendant objected to the state's proposed instruction on the basis that Detective Magee had not positively identified defendant as the shooter when he witnessed the incident and pursued the fleeing vehicle, and that there was no evidence presented that defendant knew a warrant for his arrest had been issued in Louisiana when he was located and arrested in Texas.

The record indicates that the trial court agreed to give general jury instructions, the defendant's requested mandatory life sentence charge, the State's requested charge inferring guilt from defendant's flight from justice, and the elements of each crime charged, as well as the definitions and elements of all responsive verdicts. Following this discussion, the court asked whether there were any objections, and counsel for defendant objected only to the instruction relating to the flight from justice.

After closing arguments, the court read the jury instructions as indicated above and dismissed the jury to deliberations. Again counsel was given an opportunity to lodge any objections to the court's jury instructions. And again, counsel for defendant objected only to the "flight" instruction.

During deliberations, the jury posed several written questions to the court, including questions of fact and questions of law, and it asked for the jury instructions in writing. The court discussed acceptable responses with both parties on the record. Defendant objected to putting the jury instructions in writing; the court therefore re-read the instructions to the jury and sent them back into deliberations. The court then asked if there were any objections, and defendant lodged no objection related to accomplice testimony.

In short, defendant neither requested a special jury instruction regarding accomplice testimony nor objected to the failure of the court to issue such an instruction. Defendant is therefore procedurally barred from assigning as error the failure to give a jury charge under La. C.Cr.P. art. 801 (C) ; State v. Howard , 98-0064 (La. 4/23/99), 751 So.2d 783, 801. Even if defendant's argument were valid, however, Love's testimony is corroborated by other evidence presented at trial. Thus, any refusal to give such an instruction would not have been erroneous under Schaffner , supra . We find defendant's second assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS 3 AND 4

Assignment of error number three argues that the laws authorizing a non-unanimous jury verdict is a violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and addresses the allegedly racially discriminatory history and purpose of those laws. Assignment of error number four argues that the non-unanimous jury verdict deprived defendant of his general right of due process. In essence, both assignments of error allege that the laws authorizing conviction for a non-capital crime (in which the punishment is confinement at hard labor) by only ten members of a twelve-person jury are unconstitutional.

Here, eleven out of the twelve jurors voted to convict defendant for second degree murder of Toby Roche, while the two guilty verdicts for attempted second degree murders of Malik Miguel and Dejon Miguel were unanimous. Defendant concedes that the Louisiana laws allowing non-unanimous jury verdicts for noncapital crimes repeatedly have been upheld as constitutional. Nevertheless, defendant preserves these alleged errors for further review in the event the status of the law should change.

Both LA. CONST. art. 1 § 17 and La. C.Cr.P. 782 (A) provide:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

Under La. R.S. 14:30.1, the punishment for second degree murder is a mandatory life sentence at hard labor with no benefit of parole, probation, or suspended sentence. Under 14:27, for an attempted offense in which the punishment for the underlying offense is necessarily a death or life sentence, the punishment is imprisonment at hard labor for ten to fifty years, with no benefit of parole, probation, or suspended sentence. Because the punishment for these noncapital offenses is hard labor, the verdict requires at least ten members of a twelve-person jury to find the accused guilty to render a guilty verdict.

The issue of non-unanimous jury verdicts has been considered and rejected by this Court in a number of cases. For example, in State v. Mack , 12-0625, pp. 4-5 (La. App. 4 Cir. 5/6/15), 162 So.3d 1284, 1287-88, our Court held:

[O]ur present jurisprudence provides that non-unanimous verdicts in noncapital felony cases do not violate the Sixth and Fourteenth Amendments. Defendant makes no persuasive argument that non-unanimous verdicts in noncapital felony cases calling for mandatory life sentences without parole upon conviction call for a different result. Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) ; McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (recognizing Apodaca's continuing viability); State v. Bertrand , 2008-2215 (La. 3/17/09), 6 So.3d 738 ; State v. Curtis , 2011-1676 (La.App. 4 Cir. 3/13/13), 112 So.3d 323.

Id. (footnote omitted).

In State v. Bertrand , 08-2215pp. 4-7 (La. 3/17/09), 6 So.3d 738, 741-43, The Louisiana Supreme Court confirmed that under current U.S. Supreme Court jurisprudence, non-unanimous twelve-person jury verdicts do no violate a defendant's constitutional rights under the Sixth and Fourteenth Amendments, and La. C.Cr.P. art. 782"withstands constitutional scrutiny." See also State v. Lewis , 16-0224 p. 21 (La. App. 4 Cir. 12/29/16), 209 So.3d 202, 215 (finding Bertrand dispositive on this issue); State v. Barbour , 09-1258, p. 16 (La. App. 4 Cir. 3/24/10), 35 So.3d 1142, 1151, cert. denied , 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011) (finding Bertrand dispositive of defendant's argument that a non-unanimous jury verdict violated the Fifth, Sixth and Fourteenth Amendments); State v. Frith , 13-1133, pp. 18-19 (La. App. 4 Cir. 10/22/14), 151 So.3d 946, 957 (finding defendant failed to meet his burden of proving that either LA. CONST. art. I § 17 (A) or La.C.Cr.P. art. 782 (A) is unconstitutional insofar as these statutes provide for non-unanimous jury verdicts).

Under the current law, the trial court did not commit error in denying defendant's motion to declare as unconstitutional the statutes that permit a noncapital felony conviction by a unanimous twelve-person jury. Assignments of Error 3 and 4 do not warrant relief.

CONCLUSION

For the reasons expressed herein, defendant's convictions on one count of second degree murder and two counts of attempted second degree murder, and the corresponding sentences imposed, are affirmed.

AFFIRMED

      NOPD Detective Winston Harbin, Jr., who was not familiar with the case or any of the suspects, testified that he administered the "six-pack lineup" to Love during his interrogation. Detective Harbin memorialized Love's selection by having him sign the back of the chosen photo. The signed NOPD Eyewitness Identification Form contained in the appellate record shows that Love selected the photo of defendant, Janero McBride.

      The Schaffner court held that a trial court's refusal to give that jury charge may constitute error unless material portions of the accomplice testimony are corroborated by other evidence.

      La. Const. art. 1 § 17 ; La. C.Cr.P. art. 782.

      Before trial defendant filed a "Motion to Declare La. C.Cr.P. art. 782 (A) and La. Const. art. I, § 17, Unconstitutional Because They Allow for a Non-unanimous Verdict," which the trial court denied.