author: DREW, J.

text:
    Anthony ZENO, Vanessa Zeno, and Mone’t C. Zeno, Plaintiffs-Appellants v. GREAT SOUTHERN COACHES OF ARKANSAS, INC., New Hampshire Insurance Company, Joseph L. Guidry, ANPAC Louisiana Insurance Company, Haymond Insurance Company, ABC Trucking Company, ABC Insurance Company, and XYZ Insurance Company, Defendants-Appellees
    No. 51,370-CA
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2017

      MORRIS, DEWETT & SAVOIE, LLC, By: B. Trey Morris, G. Adam Savoie, WILKINSON, CARMODY & GILLIAM, By: Bobby S. Gilliam, Jonathan P. McCartney, Counsel for Appellants
    KOEPPEL CLARK TURNER, By: Peter Stephen Koeppel, Donesia D. Turner, Emma A. Mekinda, Counsel for Appellees, Great Southern Coaches of Ark., Inc., New Hampshire Ins. Co., and Joseph L. Guidry
    LUNN, IRION, SALLEY, CARLISLE & GARDNER,' By: ■ Ronald E. Raney, Ryan 0. Goodwin, Counsel for Appellee, ANPAC La. Ins. Co.
    Before BROWN, DREW, and MOORE, JJ.
   DREW, J.

| plaintiffs, Anthony Zeno, Vanessa Zeno, and Mone’t C. Zeno, appeal from- a summary judgment that dismissed their tort action. We affirm.

FACTS .

The incident that led to this lawsuit happened in Ohio in the summer of 2011. A group of nearly 50 recent high school graduates affiliated with First Baptist Bossier chartered a tour bus owned by Great Southern Coaches of Arkansas, Inc. (“Great Southern”), and operated by driver Joseph -Guidry, At about 11 a.m. on June 3, 2011, the bus was southbound on Interstate 75 when a metal object hit the bus windshield. The object pierced the windshield, narrowly missing Mr. Guidry, and flew through the interior of the bus until it struck Mone’t Zeno in the face, seriously injuring her.

On June i, 2012, the Zenos filed suit in the First Judicial District Court against Great Southern, Guidry, and their insurer, New Hampshire Insurance Company (“NHIC”). After over two years of discovery that included the depositions of numerous witnesses, defendants Great Southern, Guidry, and NHIC filed a motion for summary judgment, urging that plaintiffs could not prove that the movers had any fault in causing the incident.

The motion was supported by 19 exhibits, including:

• A police report from Ohio State Highway Patrol Trooper Timothy Wenger. Trooper Wenger responded to the accident and created the lengthy report, which included a diagram of the accident and a list of the bus passengers,
(>• An affidavit from Trooper Wenger, stating that he had been trained and certified in crash investigation and that, in his opinion, the accident was not the fault of the bus driver.
• Brief excerpts from the depositions of 15 witnesses who were passengers on the bus, including the plaintiff.

From these excerpts, we learn:

• Ms. Ashley Doucet said that the hole in the bus windshield was “six to eight inches above [the driver’s] head”; Valerie Ashby said the hole was about a foot over Guidry’s head,
• Ashby said that she didn’t- notice Guidry driving “fast or slow,” and agreed that it appeared that Guidry was driving “at -a normal rate of speed.”
• Dana Howard described the accident: -
We were driving along just, you know, traveling, using phones dr watching a movie. I’m not sure what was happening right at the same time. All' of a sudden, Mr. Joe said, “Oh,' that—I think a bird must have hit us or something;” He very calmly pulled the bus over to the—-the road. After we saw what had happened, we were just very thankful that he kept a calm head and took care of us because it could have been really bad.
Ms. Howard also said that the bus was “not'really” noisy and was “never really a rowdy bus like middle school.”
• Passenger/chaperone Wendy Walker, who had been a school bus driver for 14 years, said that Guidry handled the situation “better than I probably ever would have done in my life. I probably would have panicked.”
• Passenger/chaperone Paul Reiser was at the front of the .bus when the incident happened. Reiser said:
I got up, front. I’m sitting on the steps putting in the—changing out the DVD. I see the little shadow come over, so I duck my head. You hear the burst. You feel the glass and stuff fall on your head. So I immediately looked up, looked over to Mr. Joe and he was like—he |awas very impressive. I mean, he was totally calm. I saw him—everything kind of went into slow motion at that point. ... So I saw him like—he was looking at the— he was looking at his side mirrors, he was—you know, just had total control of the vehicle, you know, immediately began slowing down the vehicle and he was checking his side and he pulled over to the side of the road, pulled over to the shoulder. I expected to hear screaming. I expected to stand up and turn around and see, you know, just catastrophe, but actually, it was just really quiet. And so I turned around and saw just a bunch of quiet, scared kids and nothing seemed to be happening. So I’m like, “we made it.” And then someone ran to the front of the bus and said ‘call 911,” you know, so I called 911.
• Josh Ashby said, “I think [Guidry] did a great job of—when it happened, so—I mean, he pulled over. He didn’t lose control. He didn’t panic.”
• Kara Forbis, Kristina Rowe, and Robert Stephenson said that there was never a time prior to the accident that they felt unsafe on the bus.
• Stephenson said that their bus was traveling in the outside lane, and that he “vaguely remember[ed]” a “larger 18-wheeler of some type going past us[J”
• Mone’t Zeno said that there was never a time prior to the accident when she didn’t feel safe and that she was sitting three rows from the back seat on the aisle when she was hit by the object.

Plaintiffs opposed the motion for summary judgment, arguing that Guidry “violated multiple safety rules” and alleged that Guidry failed to maintain a proper lookout, allowed himself to be distracted, and drove in the left lane even though he was not passing anyone. Plaintiffs argued that two persons—Paul Reiser and Ashley Doucet—saw the piece of metal before it struck the bus. Reiser said:

I see—like I say, I’m, you know, right up front, so you see a little shadow come over like just kind of the corner of my eye and I felt like it was like a bird or something. It felt like it was about to hit the bus because I just see a shadow and I duck my head and you hear this shotgun sound, you know, when the Robject hit the bus. An object hit the bus through the windshield, made a really loud sound[.]

Doucet said:

We were told [the metal object] was bouncing in the road and possibly came from an 18-wheeler.

Plaintiffs also pointed out some of Mr. Guidry’s deposition testimony:

Q: If someone testified that piece of metal had been bouncing down the interstate before it hit the windshield, would you disagree with that?
A: Yes.
Q: You would dispute that particular fact?
A: Yes.
Q: All right. And if someone said that they were able to see it prior to the piece of metal entering the bus, would you have any reason to disagree with that statement?
A: Yes.
Q: If someone had time to see the piece of metal and duck, would that have been a different experience than what you had?
A: Pretty much, man. Like I said, I don’t want to be caught against the wall on this because it happened so fast. So I don’t know. I mean, nobody seen nothing. If they did, they got good eyes. Ain’t nobody seen nothing. If I didn’t see it, I know they didn’t [see] it. They all asleep, man.

The plaintiffs also argued that Mr. Reiser was forward of the white painted line separating the driver’s area from the passenger cabin, and that the bus driver admitted that anyone who was forward of the white line could become a distraction to the driver. Finally, plaintiffs alleged that the bus was in the passing/left lane at the time of the incident, that Guidry failed to report that fact to the investigating officer, and that Guidry only revealed this fact at his deposition five years after the accident, where he claimed he was passing a slower car.

|fiIn addition to their opposition, plaintiffs filed a motion to strike certain material from the exhibits to the defendants’ motion for summary judgment:

• The traffic report prepared by the Ohio State Trooper;
• 14 of the 15 deposition excerpts (excluding Mone’t’s deposition); and
• The affidavit of the Ohio State Trooper.

Plaintiffs argued that the trooper’s report was hearsay, that his affidavit was incompetent because he was not an expert witness, and that the deposition excerpts contained largely irrelevant material that lacked a proper foundation.

The defendants opposed the motion to strike and filed a reply to the plaintiffs’ opposition to summary judgment, attaching additional deposition excerpts and urging that plaintiffs had no evidence of fault on the part of the defendants.

Regarding the motion to strike, the trial court:

• Granted the motion to strike the trooper’s report except as it showed that Guidry made a statement to the trooper because that was relevant to the plaintiffs’ allegation that Guidry did not say that he was traveling in the left lane.
• Allowed the trooper’s affidavit to be used as evidence but said, “I will determine what, how it’s to be applied as far as the standard on summary judgment^]”
• Denied the motion to strike the witnesses’ deposition excerpts attached to the original motion but granted the motion to strike the material attached to the defendants’ reply memo.

10After considering all of the evidence in favor of and opposed to summary judgment, the trial court concluded that the plaintiffs could not prove any fault on the part of Mr. Guidry:

When I was reading through all of these exhibits and listening to the argument, the only question I had in my mind was whether or not Mr. Guidry was distracted. Of course, he’s held to the duty of ordinary care. I think everybody is in agreement with that. Okay. Even if someone was beyond the white line, that I’ve heard a lot of talk about, and sitting on the steps or standing, the question still is was he distracted? Someone could be beyond the white line, but that doesn’t equate to automatic distraction. I heard—read no deposition testimony and saw no affidavits indicating that Mr. Guidry was distracted in any way whatsoever. Everyone actually complimented his handling of the situation. No one talked about what happened immediately before the impact except, of course, Mr. Guidry himself.
There was one individual, Mr. Reiser, I believe was his name, testified that immediately before the impact he saw a shadow. Well, driving down the highway you see shadows all the time. There are many times I personally have been driving down the highway and rocks hit my windshield, one time scared me half to death, a bird hit my windshield which I did not see coming. So, I don’t think that he was distracted whatsoever because I’ve seen no deposition testimony or affidavit to that effect. Simply by someone being beyond the white line and seated on the step does not equate to automatic distraction or possible distraction when there’s nothing to support it.
I do believe, based upon all of the deposition attachments that I read, that this was totally an unavoidable accident, and there’s been nothing presented to the contrary that would present a question of fact; therefore, the motion of summary judgment is granted.

Plaintiffs now appeal.

DISCUSSION

Assignment of Error 1, The trial court committed legal error by denying plaintiffs’ Motion to Strike Exhibit 1 in its entirety and admitting the Traffic Crash Report.

Assignment of Error 2. The trial court committed legal error by denying plaintiffs’ Motion to Strike Exhibits 3-10 and Exhibits 12-17 in their entirety and admitting the depositions.

ItAssignment of Error 3. The trial court committed legal error by denying plaintiffs’ Motion to Strike Exhibit 11 in its entirety and admitting the. affidavit of Timothy Wenger,

Assignment of Error 5. The trial court committed legal error by granting summary judgment when inadmissible evidence was weighed and considered.

The plaintiffs first argue that the court erred by considering (1) the partial police report, (2) the trooper’s affidavit, and (3) the depositions of the witnesses other than the plaintiff. They urge that the police report is hearsay in its entirety, and that defendants have no testimony to authenticate the statements therein. They further argue that the trooper’s affidavit amounts to expert testimony and that the trooper cannot be shown to be an expert accident reconstructionist, so his opinion must be excluded. Finally, they argue that the 14 objected-to depositions contained irrelevant material, lacked a proper foundation, and did not tend to show that Guidry was free from fault. They also argue that the material submitted with the defendants’ reply memo should not have been considered.

We first observe that the trial court complied with La. C.C.P. art. 966(D)(2) in handling the plaintiffs’ objections to the material submitted by the defendants in support of summary judgment. The court considered the plaintiffs’ objections in a timely manner and specifically stated on the record the documents that it would and would not consider in conjunction with the motion.

We find no error in the trial court’s evidentiary decisions. The court properly excluded the lengthy police report as hearsay, but acted within its discretion to consider the brief portion of the report where Mr. Guidry told the trooper the lane in which the bus was traveling. That portion of the report was relevant and admissible to rebut the plaintiffs’ contention that Mr. | sGuidry somehow concealed that information from the authorities and the parties, and in fact the trial court did not indicate that it relied upon this information for the truth of the matter asserted. Next, the trial court acted within its discretion to consider the trooper’s affidavit. La. C.C.P. art. 967(A) provides, in part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts opinions on the facts as would be admis- . sible in evidence under Louisiana Code of Evidence 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

The trooper’s affidavit, although it refers to his training and qualifications in technical crash investigation, arguably contains insufficient proof of his competence to testify about the question of Guidry’s fault-. Nevertheless, the document can be relied on as some evidence of the scope of the investigation into the crash and the relevant facts directly observed by the trooper (e.g., the location of the bus and passengers after the incident, .the events that occurred during this time, and the condition of the victim).

Further, it does not appear from the trial court’s reasons for ruling that the court gave any weight to the trooper's opinion; instead, the trial court relied upon the accounts provided by the witnesses who were actually on the bus. Any error in the trial court’s decision regarding this affidavit was de minimis.

The plaintiffs also complain that the extremely brief excerpts from the witnesses’ depositions should not have been considered by the trial court because, essentially, they were irrelevant, lacked foundation and did not tend to support the defendants’ contention that they were without fault.

|nLa. C.C.P. art. -966(A)(4) provides, in part:

The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda; affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.

Depositions, or excerpts thereof, are among the most common exhibits in summary judgment practice, and the question of their relevance primarily goes to the merits of the motion or opposition, not their admissibility in conjunction with the motion or opposition. Whether the’ excerpts prove—-or do not prove—the assertions of their proponent is ultimately answered by the grant or denial of summary judgment. As for the foundation for these documents in this case, these deponents were all passengers on the bus at the time of this incident and that is sufficient foundation under these facts to support their consideration.

Again, the record does not reflect that the trial court gave any weight.whatsoever to the trooper’s opinion about Mr. Guidry’s fault or to any otherwise inadmissible matters.,, The trial court specifically stated that it was relying on the depositions supplied in conjunction with this matter and based its ruling on the admissible- material. We find no reversible error in these assignments.

Assignment of Error 4. The trial court committed legal error by granting summary judgment when material facts were in dispute.

Plaintiffs urge that this case is not appropriate for summary judgment because it involves determinations of negligence and-comparative fault, and that the driver’s alleged violation of company policy and various safety rules was effectively an admission of fault.

ImThe law on summary judgment is well settled. We review these decisions de novo using the same criteria used by a trial court. Applying those criteria, we agree with the trial court that the defendants were entitled to be released on summary judgment.

In their motion for summary judgment, the defendants effectively pointed out that the plaintiffs had no proof of negligence on the part of Mr. Guidry or his employer. Apart from Mr. Guidry, apparently the best view of the road ahead was that of Mr. Reiser, whose testimony has already been quoted; he saw a “little shadow over” the corner of his eye just before impact.

Ms. Doucet reported that other people had told her that the object “was bouncing in the road and possibly came from an 18-wheeler,” but she did not see the object before it hit the bus, and the record does not reflect that any other person saw the object bouncing on the road before it hit the bus. Guidry did not see the object on the road or in any other location before it hit the bus. There is simply no evidence in the record to suggest that Guidry should have seen the piece of metal before it hit the bus, and in ^particular, there is no evidence to suggest that the driver could have taken any action to avoid the object before it hit the bus.

Likewise, we find plaintiffs’ arguments about alleged policy violations and fault to be unpersuasive. As did the trial court, we detect nothing in the depositions to show that Guidry was distracted in the moments before this incident. Mr. Reiser admitted he was in the front of the bus, and perhaps across the line dividing the passenger cabin from the driver’s area, but Reiser did not suggest that he was talking to, interacting with, or otherwise distracting Gui-dry at the moment the object hit the bus. Guidry denied that he was distracted at the moment of impact, and there is no evidence to prove otherwise. Further, the lane of travel of the bus is immaterial; Guidry explained that he was in the left or passing lane at the time, going 62 miles per hour, as he was passing a car. He explained that he was looking ahead during this maneuver, but also:

But—but, see, you can’t just look ahead of you and drive. You’ve got to look in the mirrors and see what’s beside you and one trying to change lanes and all, you’ve got to be active[.]

Guidry said that he was actively surveying the perimeter of the bus prior to impact.

CONCLUSION

In short, this record does not contain any evidence to suggest that Guidry bore any fault whatsoever for this incident. As the trial court put it, the evidence shows that the event, despite its tragic consequence, was simply unavoidable. Accordingly, we affirm the judgment of the district court |iagranting summary judgment in favor of Guidry, Great Southern, and NHIC. Costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . In brief, plaintiffs state that Mone’t has undergone multiple surgeries to reconstruct her crushed face and has incurred hundreds of thousands of dollars in medical expenses.

      . Other insurers were named as defendants but were not pursued.

      . Based upon argument at the hearing on the motion for summary judgment, certain pages from these excerpts may not have made it into the appellate record even though, as defendants assert, the pages were attached to the defendants’ original motion. This Court is a court of record and will consider only that material that comprises a part of the appellate record. La. C.C.P. art. 2164; Denoux v. Vessel Mgmt. Servs., Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84.

      . The section of the report containing the trooper’s questions and Guidry's answers reflects that Guidry told the trooper that he was driving the bus in the left lane at the time of the incident.

      . Summary judgment procedure is found in La. C.C.P. art. 966, which states that a motion for summary judgment shall be rendered forthwith "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with'the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P, art. 966(B). The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Summary judgments are subject to a de novo review using the same criteria as the trial court to determine whether summary judgment is appropriate. Arceneaux v. Amstar Corp., 2015-0588 (La. 9/7/16), 200 So.3d 277.

      . Guidry said that no one was across the line at this time.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Timothy L. SHAW, Appellant
    No. 51,325-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017

      KEVIN H. JOHNSON, Counsel for Appellant
    TIMOTHY, L. SHAW, Pro Se
    LOUISIANA DEPARTMENT OF JUSTICE, By: Jeff Landry, Attorney General, Colin Clark, Dep. Solicitor General, ROBERT S. TEW, District Attorney, GEARY S. AYCOCK, Assistant District Attorney, Counsel for Appellee
    Before PITMAN, STONE, and COX, JJ.
   PITMAN, J.

hln 1994, Defendant Timothy L. Shaw was convicted of second degree murder, committed by him when he was a juvenile. He received the mandatory sentence of life imprisonment without benefit of probation, parole dr suspension of sentence. His conviction and sentence were upheld on appeal. Following the per. curiam decision' rendered by the Louisiana, Supreme Court in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606 (“Montgomery per curiam”), Defendant filed a motion to correct an illegal sentence. The. trial court vacated Defendant’s sentence and resen-tenced him to life imprisonment at hard labor, with benefit of parole eligibility. Defendant appeals his sentence. For the following reasons, we affirrii,

FACTS

On August 21, 1993,' Defendant; áge 17; Charles Suhiler, age 15; and Levelle Tol-liver, an adult;- were playing dice with a group of individuals, including Patrick W. Johnson, on the front porch of a home in Monroe. When the' game ended in the early morning hours, Johnson took his money and began to leave. As he left the porch and moved toward his vehicle, Defendant and Sumler blocked his path. Both of them pointed guns at Johnson and began pulling the triggers. When the guns did not fire, Tolliver approached Johnson, told him to give up his money and then shot him in the back of the head. Johnson died several hours later. Defendant and Sumler later admitted that they had planned to rob Johnson after the game.

Defendant, Sumler and Tolliver were all charged with second degree murder, in violation of La. R.S. 14:30.1. Tolliver’s case was severed from the other two, who were tried together. Following a jury trial, Defendant Land Sumler were found guilty as charged. The sentencing court imposed the mandatory sentence of life imprisonment, without benefit of probation, parole or suspension of sentence. Both appealed their conviction and sentence. In a joint opinion, this court found there was sufficient evidence to establish that they had participated in the armed robbery that resulted in Johnson’s death, as required to support the convictions for second degree murder. Their convictions and sentences were affirmed. See State v. Shaw, 27,892 (La.App. 2 Cir. 4/3/96), 672. So.2d 237; and State v. Sumler, 27,893 (La.App. 2 Cir. 4/3/96), 672 So.2d 237.

Defendant subsequently filed two motions to correct illegal sentence- based on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (“Milled), which held that a mandatory sentencing scheme that denies parole eligibility for those convicted of a homicide 'committed while the offender was a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The first motion, filed September 27, 2012, was denied on October 8, 2012, for lack of evidence that Defendant was a juvenile offender. The second motion, filed on October 25, 2012, was denied on April 1, 2013, on the ground that Miller was not retroactive.

In March 2016, the trial court ordered that counsel be appointed to represent Defendant and ordered that his. presentence investigation (“PSI”) report be forwarded to the court for review.

On March 24, 2016, Defendant filed a pro se motion to correct an illegal sentence, based on the ruling in Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (“Montgomery”), which held that Miller announced a new substantive constitutional rule that was retroactive on state collateral review of defendants whose convictions and sen-tencesjjwere final prior to the decision in Miller. Defendant claimed that a resen-tence of life with parole was not sufficient under Miller and Montgomery and, instead, that he was entitled to be resen-tenced to the penalty for the next lesser-included offense of manslaughter.

On July 29, 2016, Defendant’s attorney filed separate motions seeking funds to hire an investigator and an expert psychologist or psychiatrist in preparation for the Miller hearing on his motions to correct an illegal sentence and to amend his sentence to manslaughter. Additionally, he filed a motion to disclose any information regarding aggravating and mitigating circumstances.-.

On August 8, 2016, Defendant filed a memorandum in support of a- motion to amend his sentence to manslaughter and argued that the trial court had authority to vacate the jury’s verdict and enter a judgment that he was guilty of the lesser and included offense of manslaughter in violation of La. R.S. 14:31. He also argued that a .resentence to life with parole eligibility would not comply with Miller or Montgomery because he would still have-to serve an additional 12 years before being eligible for parole consideration; and, thus, it would not be a meaningful opportunity for parole.

On August 9, 2016, Defendant appeared with counsel for the court to consider the issue of parole eligibility. The trial court noted that it had presided over the trial, was familiar with the facts and circumstances of Defendant’s -case and that he had not been the shooter, but had been a principal in Johnson’s homicide. It stated Defendant was still guilty of second degree murder because he planned with Tolliver to rob Johnson, then put a gun to Johnson’s head and pulled the trigger before Tolliver interceded |4and shot Johnson. It further stated that the cases and statutes directed the sentencing court to reconsider the sentence, not the verdict.

The trial court also found that it did not have authority to set aside the jury’s verdict of second degree murder, which had been upheld on appeal and had already become final many years ago. It stated that it had no authority to amend Defendant’s sentence, which had also been upheld and become final, except to comply with Miller, Montgomery and La. C. Cr. P. art. 878.1, to consider the possibility of parole.

The trial court admitted into evidence the PSI report, as well as the record from the institution where Defendant had been incarcerated for the last 23 years. It denied Defendant’s request to present mitigating evidence after concluding that further evidence was unnecessary in light of its intention to simply grant eligibility for parole.

The trial court denied Defendant’s motion for funding for an investigator and expert psychologist and psychiatrist on grounds that the information was irrelevant in light of the new sentence. Defendant’s motion to amend the sentence under the manslaughter statute was denied as untimely.

Defendant’s motion to correct an illegal sentence was denied as moot, in light of the trial court’s intended ruling. The trial court vacated Defendant’s prior sentence and resentenced him to life imprisonment at hard labor, with the benefit of parole eligibility. Defendant and his attorney objected to the sentence.

On August 10, 2016, Defendant filed a motion to appeal his new sentence. The motion was granted on August 24, 2016.

|fiOn September 2, 2016, Defendant’s counsel filed a motion to reconsider sentence, which was denied on September 8, 2016. On September 8, 2016, Defendant filed a pro se motion to reconsider sentence. On September 9, 2016, the court ordered the state to respond to the pro se motion. There is nothing in the record indicating there was ever a ruling on this motion.

On September 21, 2016, Defendant filed pro se motions to clarify his sentence and to correct an illegal sentence. These motions were denied on September 22, 2016. This appeal followed.

DISCUSSION

Equal Protection

Defendant argues for the first time on appeal that La. C. Cr. P. art. 878.1 violates the Equal Protection Clause of the Fourteenth Amendment because it treats some youthful offenders differently than others. He contends that the statute only applies prospectively to comply with Miller.

In opposition, the district attorney and the attorney general both argue that Defendant failed to raise this constitutional challenge before the trial court and failed to serve the attorney general with the required notice, pursuant to La. C.C.P. art. 1880. The attorney general contends that the constitutional issue was not properly preserved for appeal and is, therefore, not properly before this court. He also contends that the constitutionality of La. C. Cr. P. art. 878.1 was previously challenged in State v. Fletcher, 49,308 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied, 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied, — U.S. —, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015), and the claim was found to be without merit. He further argues that | nthe equal protection violation claim is without merit because, under Miller and Montgomery, all juvenile homicide offenders must be sentenced according to La. C. Cr. P. art. 878.1.

In the Montgomery per curiam, the supreme court stated as follows:

The Supreme Court held in Miller that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The Supreme Court found that “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S.Ct. at 2469. The Supreme Court clarified in Montgomery, 136 S.Ct. at 734, “that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” and life without parole can only be a proportionate sentence for the latter. As noted above, the Supreme Court also determined in Montgomery that Miller announced a substantive rule of constitutional law that applies retroactively.
To implement Miller’s “meaningful opportunity to obtain release” for those juveniles who commit murder but are not found to be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E). Article 878.1 requires the District Court to conduct a hearing “[i]n any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).” La. R.S. 15:574.4(E) then provides the conditions under which any person serving a sentence of life imprisonment for first or second degree murder committed under the age of 18 can become parole eligible, provided a judicial determination has been made the person is entitled to parole eligibility pursuant to Article 878.1.

Statutes are presumed to be valid, and the constitutionality of .a statute should be upheld whenever possible. State v. Hart, 96-0599 (La. 1/14/97), 687 So.2d 94. A constitutional challenge may not be considered by an appellate court unless it was properly pled and raised in the trial court below. State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709. A constitutional challenge to a state law must be pled or litigated in the trial court in order for the issue to be considered on appeal. State v. Kennedy, 49,036 (La.App. 2 Cir. 5/14/14), 140 So.3d 1201. Additionally, where a statute is alleged to be unconstitutional, the state attorney general must be served with a copy of the proceeding and given the opportunity to be heard. La. C.C.P. art. 1880.

There is no showing in the record that Defendant properly raised his constitutional challenge of La. C. Cr. P. art. 878.1 before the trial court, and there was no showing that the attorney general was served notice of any such claim. Accordingly,. this issue is not properly before this court.

Ex post facto claim

Defendant also argues that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) do not apply to him because they were not in effect at the time of the offense and because they violate the - ex post facto clause of the federal and’ state constitutions. He further argues that the trial court erred by not sentencing him to the penalty for 'manslaughter and by not imposing an individualized sentence.

Defendant asserts that La. C. Cr. P. art. 878.1 arid La. R.S. 15:574(E) apply only prospectively. He contends that the ruling in State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, held that Miller did not apply retroactively to cases on collateral review. He also argues that, since the legislature failed to pass legislation that allows him to be resentenced in' accordance with Miller and Montgomery, the trial court should have vacated 18his conviction and sentence, entered a judgment of guilty for the next lesser-included responsive verdict of manslaughter and sentenced him accordingly.

The state argues that the trial court was bound, pursuant to the Montgomery per mriam, to resentence Defendant by applying La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) and either to impose life imprisonment with or without parole eligibility. It contends that, - once a defendant’s sentence is vacated, La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) become applicable. It also notes that additional evidence was unnecessary since the court advised that Defendant would be granted parole eligibility. Finally, it argues that Defendant’s claim that he should be resentenced according to the manslaughter statute was previously rejected in State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, which held that the appropriate remedy for illegal sentences of life imprisonment at hard labor without possibility of parole for an aggravated rape committed when defendants were under 18 years old was to delete the parole eligibility restriction, not to resentence the defendant according to penalties provided for the lesser-included responsive verdict of attempted aggravated rape.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. Massey v. Louisiana Dep’t of Pub. Safety & Corrs., 13-2789 (La. 10/15/14), 149 So.3d 780.

The punishment for a conviction of second degree murder remains the same today as it was in 1993, the time Defendant committed the offense, and subjects’ him to life imprisonment at hard labor, without benefit of parole eligibility, probation or suspension of sentence. La, R,S.14:30.1.

| ¡Although in its 2016 legislative session, the legislature declined to enact a proposal that addressed the resentencing of juvenile homicide defendants whose convictions were final prior to the Miller decision, the supreme court in the Montgomery per cu-riam applied existing laws and stated:

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

The Louisiana Supreme Court vacated Montgomery’s sentence and remanded the case to the trial court for a Miller hearing to be conducted based on La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4. For these reasons, the legislature’s failure to pass the proposed legislation in 2016 does not preclude the trial court from sentencing the defendant to life with parole eligibility.

Eligibility for parole is the sole question to be answered in a Miller hearing; and, accordingly, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court considers only whether that mandatory sentence should include parole eligibility.

The ex post facto clause prohibits the legislature from passing a law that (1) imposes punishment for an act that was not punishable at the time the act was committed and (2) imposes a more severe punishment. U.S. Const. art. I, § 10, cl. 1; La. Const. art. I, § 23; Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). An ex post facto inquiry determines whether the retroactive application of a law increases the defendant’s potential punishment by prolonging incarceration. Massey v. Louisiana Dep’t of Pub. Safety & Corrs., supra; State v. Everett, 00-2998 (La. 5/14/02), 816 So.2d 1272. To prove that a state law violates the ex post facto clause, a defendant must show that the law subjects him to a more severe punishment or longer incarceration than he would previously have been subjected to prior to the enactment of the statute. Id.

Applying La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) in resentencing a defendant pursuant to Miller does not violate the ex post faeto clause. State v. Williams, 15-0866 (La.App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied, 16-0332 (La. 3/31/17), 217 So.3d 358, 2017 WL 1315822; State v. Graham, 14-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied, 15-1028 (La. 4/8/16), 191 So.3d 583.

The potential sentence for second degree murder under Miller and Montgomery, applying La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), is the same sentence as before, i.e., life imprisonment without eligibility for parole, or a less harsh sentence than before, i.e., life imprisonment with eligibility for parole. Both statutes became effective in August 2013, and any parole eligibility granted pursuant to La. C. Cr. P. art. 878.1 was granted in accordance with the conditions for parole specified in La. R.S. 15:574.4(E).

For the foregoing reasons, the application of La. C. Cr. P. art. 878.1 and La. R.S, 15:574.4(E) does not violate the ex post facto clause because those statutes do not subject a defendant to a harsher sentence or a longer |nperiod of incarceration. Furthermore, because juvenile homicide offenders had no potential sentence that included parole eligibility prior to the statutes’enactment in 2013, there is no basis to argue that- a defendant is now subject to harsher parole conditions by application of La. R.S. 15:574.4(E).

Defendant’s argument that he should be sentenced to a lesser-included responsive verdict is without merit. State v. Shaffer, supra; State v. Graham, supra.

' For the foregoing reasons, these assignments of error áre without merit.

Fair Notice Claim

Although Defendant raised several pro se assignments of error, most of them have been addressed earlier in this opinion, with the exception of his claim that the trial court erred by sentencing him in violation of the Fifth Amendment protection of “fair notice.” He argues that the fair notice provision of the due process clause was violated by his sentence to life imprisonment with eligibility for parole under La. R.S. 15:574.4(E) because that sentence was not available at the time he committed the offense in 1993. He asserts that fair notice and due process prevent the trial court from sentencing him to a sentence that was different than the one he could have expected at the time he committed the offense in 1993, when the only sentence available under La. R.S. 14:30.1 was life imprisonment without eligibility for parole.

The requirements to prove the offense of second degree murder have not changed since the crime was committed in 1993, and the potential sentence for committing that crime remains life imprisonment at hard labor. The only current difference is that the trial court may impose the sentence hawith the benefit of parole eligibility, which is a less harsh sentence, even where La. R.S. 15:574.4(E) provides for conditions for parole, because Defendant was not at all previously eligible to be considered for parole. Therefore, he was not deprived of fair warning that his conduct would constitute criminal behavior and he was not prejudiced because his potential sentence was not made more severe by the application of La. R.S. 15:574.4(E). This argument is without merit.

CONCLUSION

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

AFFIRMED.

      . Tate, supra, was abrogated by Montgomery.


author: GARRETT, J.

text:
    Raymond Doyle CHANLER, Jr. and Pamela Turner Chanler Plaintiffs-Appellees v. JAMESTOWN INSURANCE COMPANY, O’Nealgas, and Roger Moore Defendants-Appellants
    No. 51,320-CA
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2017
    Rehearing Denied June 15, 2017

      MAURICE L. TYNES, Counsel for Appellants, O’Nealgas, Inc., and Roger Moore
    SENTELL LAW FIRM LLC By: C. Sherburne Sentell III, Counsel for Appel-lees
    Before WILLIAMS, GARRETT, and STONE, JJ.
   GARRETT, J.

_JjThis suit arises from a collision wherein a propane gas delivery truck backed up and struck a vehicle driven by a postal worker who was delivering mail. The trial court granted the plaintiffs’ motion for partial summary judgment on the issue of liability. It ruled that the. propane gas truck driver was 100 percent at fault and the postal worker was free from any comparative fault. The defendants appeal-that judgment. We affirm the trial court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 2009, Roger Moore (“Moore”) was driving a 2003 FRHT propane gas truck for his employer, O’Neal-gas, Inc., on Kenneth- Road, a two-way, unlined but paved country road in rural Bienville Parish-near Ringgold. Raymond Doyle Chanler, Jr. (“Chanler”), a United States Postal Service (USPS) mail carrier, was driving a 2004 Jeep Wrangler, which had a passenger-side steering, wheel (or. right-hand drive) to facilitate mail delivery and a flashing light affixed to the top of the vehicle. Moore drove past a driveway where he intended to turn for a home delivery. Realizing his' error, he placed his truck in reverse and began to back up. Chanler was in the Jeep delivering mail and was behind the truck. The truck collided with the .Jeep, sending it into a ditch.

On December 15, 2010, Chanler and his wife, Pamela Tanner Chanler, filed suit against Moore, O’Nealgas, and its insurer, Jamestown Insurance Company (“Jamestown”). The plaintiffs alleged that Chanler Sustained a severe lower back injury which required surgery and prevented him from returning to his job. They claimed that his medical bills already exceeded $100,000. The plaintiffs demanded general and special damages, Land Chanler’s wife sought damages for loss of consortium. The defendants answered and asserted defenses of comparative fault, sudden emergency, and act of God.

In November 2012, the defendants filed a notice of automatic stay, informing the court that Jamestown, a risk, retention group, had been placed in receivership in a South Carolina state court and that an automatic stay was in place. After the company commenced liquidation proceedings, the South Carolina court issued an order clarifying that the stay did not apply to pending claims against third parties. Consequently, in June 2013, the Louisiana trial court signed a judgment holding that the stay order was not applicable to O’Nealgas and Moore and that the plaintiffs could proceed against these two defendants.

. In December 2013, the plaintiffs filed a motion for partial summary judgment on the issue of liability alone. In support of their motion, they submitted several affidavits, including three from witnesses to the accident—David Reliford, Barbara Re-liford, and Barbara’s daughter, Ashley Chase. In their March 2012 affidavits, all of these witnesses stated that the truck backed up into the Jeep and slammed it into a ditch and that the truck driver should have seen the Jeep, especially after it began blowing its horn. Chase stated that she jumped from her vehicle and ran up to the truck, waving her arms and trying to get the truck driver to stop. Chase said she assumed the Jeep was in the truck’s blind spot, but there was a flashing light on top of the Jeep. Both of the Relifords stated that they observed Chase yelling at the truck driver to stop and that the truck driver apparently failed to see her. Ms. Reliford stated that she also waved her hands and hollered at the driver to stop. The Relifords also stated that, even after impact, the truck kept going, Ispushing the Jeep until it was knocked into a ditch. In her affidavit, Tam-bra Manuel, the Ringgold postmaster, stated that she immediately went to the crash scene after she was notified about the accident. In front of her and Chanler, the truck driver said, “I am so sorry. I didn’t see him and I hit him.” In his affidavit, Larry Loudd, a Bienville Parish deputy sheriff who investigated the accident, said that Moore gave him a statement in which he recounted: “I ... decided to back-up to the drive I was at, did not see mail carrier, hit his Jeep and knocked him into ditch.”

O’Nealgas and Moore opposed the motion on the grounds that there were disputed material facts as to whether Chanler failed to do all he reasonably could have to avoid contact with the truck, whether he negligently stopped in Moore’s blind spot or was too close, and whether he should have recognized that the truck driver might be stopping and backing up. In support of their position, they submitted Moore’s affidavit in which he stated that he backed up at no more than 5 mph and saw nothing in his rearview mirror on his side of the truck. He admitted seeing a woman “waving her arms and trying to say something maybe, but I had no idea what she was doing it for.” He said he braked anyway, felt an impact, and stopped completely. He then asserted that he realized he had not seen the vehicle because it was too close behind him to be seen in the mirror. He further stated that he said he was at fault to make the “nervous and anxious” Jeep driver “feel better.” Moore also stated that he told the police that he did not hear a horn blow or see any evidence of the vehicle behind him, such as a flashing light on its roof. He also asserted that he was sure the Jeep was too close to him for him to see it and that the other driver could have simply put his vehicle into reverse and “easily backed up faster than I did.”

LAdditionally, the defendants attached an excerpt from Chanter’s deposition in which he recounted the accident. Specifically, he stated that, after he came around a curve in the road, he stopped when he saw the truck, which was half in the road and half in a driveway. According to Chan-ler, the truck was perpendicular to the road. Chanler had been driving about 35 mph and stopped about 75 to 80 yards from the truck. After pulling out of the driveway, the truck moved away from Chanler, who proceeded to service a. mailbox. When the truck was about 100 to 120 feet away from him, it stopped again after passing a driveway. When Chanler was about 50 feet behind him, the truck began backing up, first slowly, and then the truck driver “gunned it.” Chanler said he started honking his horn and flashing his lights. At this point, the truck was about 35 to 40 feet away. He then put his car in reverse to try to get out of the way. At this point, the truck was about 30 feet away; Chanler said he thought the truck was going to stop and back into the driveway. However, instead of slowing down, the truck picked up speed. He also observed two ladies in a nearby yard screaming at the truck driver to stop. He was only able to back up “a yard or two” before the truck hit him. The force of the collision drove the bumper into the Jeep motor, killing the engine and causing a complete loss of control. Chanler said he put both feet on the brake to try to stop. When the truck driver finally saw what had happened, he braked, which pushed the vehicles apart. Chanter’s vehicle stopped when it went in the ditch. According to Chanter, it had just stopped raining, and he had his regular car lights on.

|BThe motion for partial summary judgment was originally set for hearing in court on January 9,2014. It was later reset for October 23, 2014. Shortly before the hearing date, the defendants submitted an affidavit from Daniel Emory dated October 10, 2014. Emory, an adjuster for Crawford & Company, claimed to have interviewed Chase by telephone on July 20, 2010. He stated that “the gist” of the interview was that Chanter had “plenty of time to back up to avoid danger” and that he was in Moore’s blind Spot. He also stated that Chase’s recorded interview differed from her affidavit which was submitted to support the plaintiffs’ motion for partial summary judgment. Also submitted were a CD audio recording and what purported to be a 9-page transcript of the interview with Chase. According to this transcript, she said she was behind the vehicles involved in the accident. She said the truck driver was lost and the mailman was in the truck driver’s blind spot and “right there on his bumper.” Realizing what was about to happen, she pulled in her mother’s driveway and jumped out of her car to let the truck driver know he was about to back into the mailman. According to her, the truck driver was trying to make a delivery at her mother’s house and passed the driveway. She opined that the mailman had time to back up before the collision. She said the truck driver could not hear her yelling at him because his windows were up, but she did not know why he did not see her in his mirror. She thought the distance between the vehicles was one-half of a car length when the truck began backing up. She stated that the mailman began honking his horn when “it was too late” and that he made no attempt to back up. In her opinion, the accident could have been prevented.

RAt the hearing on October 23, 2014, the trial court noted on the record that the case setting had been left off the docket and that it had just received copies of the motion and the opposition that morning. The trial court agreed to hear arguments and advised the attorneys the matter would be taken under advisement. The plaintiffs strenuously objected to the Emory affidavit and the transcript as inadmissible summary judgment evidence. The trial court gave the attorneys the opportunity to submit additional memorandums on the issues raised during argument. In a post-hearing brief, the plaintiffs again objected to the admissibility of the evidence. On December 22, 2014, the trial court issued extremely brief written reasons denying the partial summary judgment. It did not specifically address the plaintiffs’ objections to the defendants’ evidence,

On February 26, 2016, the plaintiffs filed another motion for partial summary judgment, reurging the same contentions as the previous one. In addition to all the exhibits previously submitted, they submitted a more detailed affidavit from Manuel and an affidavit from Chanler. Most significantly, they submitted excerpts from Moore’s deposition, which had been taken after the denial of the first motion. In her affidavit, Manuel stated that the USPS has a safety policy to back up a vehicle only when | ./‘absolutely necessary” and that she could attest Chanler had been instructed in accordance with this policy.

In his deposition, Moore stated that he was backing up in the center of the road at a speed of 6 to 8 or 10 mph, except when he “froze up” while watching a lady waving at him. He said he didn’t know what was happening and he “bumped” the accelerator when he tried to hit the brake and missed. He explained that, in addition to rearview mirrors on both sides of the truck, he also had blind-spot mirrors that allowed him to see vehicles in his blind spots. He further admitted that, if he had looked in all of those mirrors, “[pjossibly, yes,” he should have been able to see the postal vehicle. He conceded that he did not look in the passenger-side mirror or the blind-spot mirror on that side. He said that he told the police the truth that day when he said that he did not see the mail carrier, hit his Jeep and knocked him into the ditch. He thought he pushed the Jeep “[mjaybe 20 feet or something like that” and that the vehicles were only a foot or two apart when he got out of his truck. He admitted that he never saw the Jeep until after the collision. When asked if he was informed that he was not supposed to back up on a. roadway when he took the test for his commercial driver’s license, he said “I guess so, yeah.” As to O’Nealgas’s policy, he said that drivers have “to make sure everything is clear-behind us when we back up.” Although he was aware that the witnesses heard Chanler honk.his horn, he said he did not | shear it. He only saw one of the ladies in the yard waving at him, but he did not hear her yelling. He thought 'she was trying to alert him to an emergency. Two or three seconds after he saw her, he accidentally tapped the accelerator. He also admitted that one reason he didn’t hear her yelling could have been his radio. Moore further admitted that he was momentarily distracted due to disorientation about where he was. He stated that he “glanced” at his driver’s side rearview mirror, but “[m]y mind was making sure I got to the right customer, and everything else was blocked out.” He conceded that it would have been reasonable for the mail carrier to assume that: (1) he could hear the horn being honked, (2) he was backing up to then pull forward into one of the driveways, and '(3) he was going to stop before impact due to the horn, the flashing light on the Jeep, and the hollering of the ladies to stop. He admitted making the statement to the police that was recounted by the postmaster. He was unable to say how much time Chanler had to react. He said that propane gas is considered a hazardous material.

In his affidavit, Chanler explained that, due to the right-hand drive of the Jeep and its passenger-side steering wheel, he was seated on the passenger side of the Jeep. He could clearly see Moore’s face in the truck’s passenger-side mirror, which demonstrated that he was not in the truck’s blind spot and that Moore could have seen him if he had looked. He described the collision, including the truck slowly backing up and then unexpectedly accelerating backwards, colliding with the Jeep seconds later. Chanler stated that he flashed his headlights and honked his horn. He stated that he and Manuel both heard the truck driver admit that he did not sqe Chanler. Like Manuel, he also stated that the USPS safety policy specified that a postal vehicle should be backed up only when “absolutely necessary.” [¡¡He further stated that he believed the truck would stop before hitting him due to the flashing light,, the honking horn, and the woman waving and screaming at the truck driver.

O’Nealgas and Moore opposed the second motion for partial summary judgment and relied upon the same exhibits previously submitted in their opposition to the first motion.

At the hearing on April 7, 2016, the matter was argued before a different trial judge. All of the plaintiffs’ exhibits were admitted without objection. The plaintiffs informed the court that, while Jamestown had taken bankruptcy, there was an excess umbrella policy available, but the other side refused to negotiate any settlement until there was a finding of liability. They emphasized the new and “very candid” admissions in Moore’s deposition, which was taken after the denial of the prior motion. Among these were his statements that he failed to look in his mirrors before backing up and that he accidentally hit the accelerator when he tried to stop. The plaintiffs again strenuously objected to the “double hearsay” in Emory’s affidavit and the unsworn telephone interview with Chase. They maintained that the defendants had had more than enough time to correct the deficiencies in their evidence by deposing Chase or securing an affidavit from her, but they failed to do so. The attorney for O’Nealgas and Moore objected to allegedly conclusory statements in the plaintiffs’ affidavits and argued that there were disputed issues of material fact as to comparative fault. They also asserted that the principle of “law of the case” should apply | ^because the prior judge denied the motion due to the Emory affidavit and the Chase telephone interview.

The trial court granted the motion for partial summary judgment and assigned oral reasons for so ruling. In particular, the trial court noted that the judge who previously denied the motion did not have the benefit of Moore’s “telling” and “very strong” deposition, which overwhelmingly showed that there was no genuine issue of material fact as to fault. The court also noted the hearsay issue; it stated that Chase’s statement to Emory should not be considered in this case. Further, the court indicated that defense counsel had ample time to address and correct the problems with the inadmissible evidence and failed to do so.

Judgment was signed on April 27, 2016. It specified that O’Nealgas and Moore were solely at fault, precluding any finding of comparative fault on Chanler’s part. O’Nealgas and Moore appealed.

LAW

Summary Judgment

Appellate courts review motions for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co., 2012-2292 (La. 6/28/13), 144 So.3d 791.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002; Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880. The procedure is lufavored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C:C.P. art. 966 (A)(2).

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). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966 (A)(4).

A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144 So.3d 876, cert. denied, — U.S. —, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Tatum v. Shroff, 49,518 (La.App. 2 Cir. 11/19/14), 153 So.3d 561.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion |12does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of lav?. La. C.C.P. art. 966 (D)(1).

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art. 966 (D)(2).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. La. C.C.P. art. 967 (A). Unsworn or unverified documents are not self-proving and will not be considered on summary judgment. Harris v. Dunn, 45,619 (La. App. 2 Cir. 9/22/10), 48 So.3d 367. It is insufficient for an affiant to merely declare that he has personal knowledge of a fact. The affidavit must affirmatively establish that the affiant is competent to testify as to the matter by a factual averment showing how he came by the 1 ^knowledge. Duplessis v. Warren Petroleum, Inc., 95-1794 (La.App. 4 Cir. 3/27/96), 672 So.2d 1019.

Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source. THH Properties Ltd. P’ship v. Hill, 41,038 (La.App. 2 Cir. 6/2/06), 930 So.2d 1214; Rodessa Oil & Land Co. v. Perkins, 47,378 (La.App. 2 Cir. 8/8/12), 104 So.3d 52. Put another way, personal knowledge is that information which is obtained by the affiant through the use of his or her senses. Crawford v. Brookshire Grocery Co., 50,151 (La.App. 2 Cir. 9/30/15), 180 So.3d 478. The court must first determine whether the supporting affidavits and documents presented by the moving party are sufficient to resolve all material issues of fact. If they are not sufficient, summary judgment is not appropriate. THH Properties Ltd. P’ship v. Hill, supra. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment. Crawford v. Brookshire Grocery Co., supra.

An affidavit in opposition which contains hearsay statements and is aimed at impeaching the credibility of the mover’s affidavit does not create a material issue of fact to defeat summary judgment. Cutler v. McGee, 2012-317 (La.App. 3 Cir. 11/14/12), 103 So.3d 1215; Butzman v. Louisiana Power & Light Co., 96-2073 (La.App. 4 Cir. 4/30/97), 694 So.2d 514; Duplessis v. Warren Petroleum, Inc., supra.

A trial judge cannot make credibility determinations on a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181 (La. 2/29/00), 755 So.2d 226; DeBrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App. 2 Cir. 4/6/05), 900 So.2d 253. Summary judgment is seldom appropriate when the particular circumstances of the case call for credibility evaluations and the weighing of testimony. Cook v. Depingre, 49,527 (La.App. 2 Cir. 1/14/15), 161 So.3d 914. The credibility of a witness is a question of fact, Sonnier v. Gordon, 50,513 (La.App. 2 Cir. 4/13/16), 194 So.3d 47. In deciding - a motion for summary judgment, the court must assume that all of the affiants are credible. Sonnier v. Gordon, supra; Tatum v. Shroff, supra.

Liability of Backing Motorist

Backing an automobile is considered a dangerous maneuver. Rodrigue v. Firestone Tire & Rubber Co., 540 So.2d 477 (La. App. 1 Cir. 1989), writs denied, 546 So.2d 179, 180 (La. 1989). The driver of a vehicle shall not back the same .unless such movement can be made with reasonable safety and without interfering .with other traffic. La. R.S. 32:281(A). A high degree of care is generally imposed upon backing motorists to ensure that the maneuver can be safely accomplished. Harrisson v. Richardson, 35,512 (La.App. 2 Cir. 1/23/02), 806 So.2d 954. The limitation of driver visibility while backing an automobile is a reason for the increased standard of care. Rodrigue v. Firestone Tire & Rubber Co., supra.

If a motorist fails to see what he should have seen, then the law charges him with having seen what he should have seen, and the court examines his subsequent conduct on the premise that he did see what he should have seen. Fontenot v. Patterson Ins. 2009-0669 (La. 10/20/09), 23 So.3d 259; Burdine v. Robertson, 46,213 (La.App. 2 Cir. 5/18/11), 69 So.3d 510.

ImThe jurisprudence has recognized that a professional truck driver is a superior actor in the eyes of the law and, as such, is held to a high standard, of care to the motoring public, Davis v. Witt, 2002-3102 (La. 7/2/03), 851 So.2d 1119; Theriot v. Bergeron, 2005-1225 (La.App. 1 Cir. 6/21/06), 939 So.2d 379.

. Sudden Emergency

Under the sudden emergency doctrine, anyone who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt in order to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Therefore, where no facts aré in dispute, summary judgment may be appropriate where a sudden emergency renders an accident unavoidable. Jimes v. Lopez, 45,922 (La.App. 2 Cir. 1/26/11), 57 So.3d 1118; Loyd v. Lancer Ins. Co., 43,859 (La.App. 2 Cir. 1/14/09), 999 So.2d 1232.

Law of the Case

The “law of the case” principle is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial; (b) the conclusive effects of appellate rulings at trial on remand; and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Welch v. Willis-Knighton Pierremont, 45,554 (La.App. 2 Cir. 11/17/10), 56 So.3d 242, writs denied 2011-0075, 20110109 (La. 2/25/11), 58 So.3d 457, 459; Webb Const., Inc. v. City of Shreveport, 33,645 (La.App. 2 Cir. 8/23/00), 766 So.2d 607, writ denied, 2000-2674 (La. 11/17/00), 774 So.2d 982. Reargument in the same Incase of a previously decided point will be barred where there is simply a doubt as to the correctness of the eárlier ruling.' However, the law of the case princi-pié is not applied in cases of palpable error or where, if the law of -the case were applied, manifest injustice would occur. Northeast Realty v. Jackson, 36,276 (La, App. 2 Cir. 8/14/02), 824 So.2d 1264; Webb Const. Inc. v. City of Shreveport, supra.

The reasons for the law of the case doctrine are: to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Welch v. Willis-Knighton Pierre-mont, supra; Northeast Realty v. Jackson, supra.

The jurisprudence has consistently found no error in a second motion for summary judgment being heard after the previous motion was denied. Watkins v. City of Shreveport, 45,107 (La.App. 2 Cir. 3/3/10), 32 So.3d 346; Rogers v. Horseshoe Entm’t, 32,800 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, writs denied, 2000-2894, 20002905 (La. 12/8/00), 776 So.2d 463, 464. When new evidence has been introduced after a denial of a motion for summary judgment, the court may reconsider the motion. Watkins v. City of Shreveport, supra.

DISCUSSION

Emory affidavit

In opposition to the plaintiffs’ motion for summary judgment, the appellants rely upon an affidavit by an insurance adjustor, Emory, who asserted that he interviewed Chase over the telephone -in July 2010 and that she allegedly made statements which contradicted her March 2012 affidavit. At the hearing before Judge Teat in October 2014, the appellants contended [17that, while there might be “technically speaking a hearsay objection” to the Emory affidavit, it was only trying to establish that Chase’s alleged statement was made, not the truthfulness of its contents, At the April 2016 hearing before Judge Fallin, the appellants argued that, under the law of the case, Judge Fallin was bound by Judge Teat’s .finding that Chase’s affidavit and the transcript of the recording established enough dispute to defeat the motion. However, Judge Fallin agreed with the plaintiffs’ argument that the appellants were attempting to bring in inadmissible hearsay through Emory’s affidavit and the Chase transcript and that such should not be considered in the instant case.

We agree with Judge Fallin’s conclusion on this issue. First, the law of the case doctrine was inapplicable. Judge Teat never specifically ruled on the plaintiffs’ objections to the admissibility of the evidence. Assuming the brief and terse ruling on the first motion could be construed as a denial of the plaintiffs’ objections, such a ruling was palpable error. Further, the introduction by the plaintiffs of vital new evidence, i.e., Moore’s deposition with its devastating admissions, compels a finding that Moore was 100 percent at fault!

Additionally, as previously stated, an affidavit in opposition, which contains, hearsay statements and is aimed at impeaching the credibility of. the mover’s affidavit does not create a material issue of fact to defeat summary judgment..Cutler, supra; Butz-man, supra-, Duplessis,. supra. The appellants. were plainly attempting, to use the Emory affidavit, with its hearsay statements, to impeach Chase’s affidavit in support of the plaintiffs’ motion for partial summary judgment,. See Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 (La. App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La. 4/26/02), 814 So.2d 558, wherein the court found that an unsworn transcript of a conversation submitted with an opposition affidavit did not constitute competent evidence to refute a properly supported summary judgment motion. See also Ross v. Oceans Behavioral Hosp. of Greater New Orleans, 14-368 (La.App. 5 Cir. 11/25/14), 165 So.3d 176, writ not cons’d, 2015-0005 (La. 3/27/15), 161 So.3d 648, wherein a court deciding a motion for summary judgment excluded affidavits containing hearsay, and State Farm Mut. Auto. Ins. Co. v. Landry, 96-331 (La.App. 3 Cir. 10/9/96), 688 So.2d 1125, wherein the affidavit of an insurance company employee, to which a transcript of a purported telephone conversation was attached, was found not to comply with La. C.C.P. art. 967 because it was not based on personal knowledge and did not affirmatively show that the affiant was competent to testify to the matters stated therein.

In addition to the impermissible use of hearsay, the affidavit has other glaring deficiencies. Emory’s purported certification language is, at best, confusing. He attested that he had listened to the audio recording of the interview, read the transcript, and recognized his voice and that of the witness. He then stated, “I can and do certify that it is a true and correct copy of the original, which is archived in the records of [his employer].” As noted by the plaintiffs, it appears that Emory may have inadvertently certified that the transcript he offered matched an archived transcript, instead of verifying that the transcript was identical to the recording. Thereafter, Emory recited “the gist” of Chase’s interview and declared that he had read her affidavit and that its contents did not agree with her recorded and transcribed interview. Attached to the affidavit are nine typed pages of what purported to be a telephone interview with Chase. Interestingly, what |1flappears to be the first page of this document is actually numbered as “-2-.” Some page numbers are located in the text, not at the end of the page. On two pages, there are blanks, indicating incomplete transcription. There is nothing to indicate that Chase was sworn or placed under oath. Nor is there any sworn certification by the unknown person who transcribed the interview, verifying its accuracy.

The ruling below, that the Emory affidavit and the Chase interview transcript were inadmissible for purposes of a summary judgment, was correct. Consequently, we will not consider the inadmissible evidence while conducting our de novo review of the motion for partial summary judgment.

Alleged conflict between Moore’s affidavit and deposition

The appellants contend that the trial court made a credibility call by choosing to believe Moore’s deposition, in which he made numerous admissions to their detriment, over his affidavit, which attempted to cast fault for the accident upon the other driver.

Pursuant to our de novo review, we have examined Moore’s affidavit and deposition excerpts in great detail. The affidavit contains a number of conelusory statements, most of which concern Moore’s opinion that the Jeep must have been following too closely and that the other driver must have somehow shared fault in causing the accident. Such bald-faced assertions, which are mere opinion by a nonexpert and not “personal knowledge,” cannot be considered by the court in determining whether to grant summary judgment. Factually, the affidavit refers to Moore looking at his “rear view | gnmirror on my side of the truck” and seeing nothing behind him. He then stated that he hit a Jeep “that did not show up in my outside rear view mirror.” The affidavit omits any reference to his passenger-side rearview mirror or the blind-spot mirrors on both sides, much less Moore’s failure to utilize them in ascertaining the safety of his backing maneuver. Most importantly, the affidavit also conspicuously omits any reference to the highly salient admission in Moore’s subsequent deposition that he missed the brake and accidentally “bumped” the accelerator immediately before the collision. Those matters are described in some detail in the deposition excerpts. Therein Moore admitted that the blind-spot mirrors allowed him to see vehicles in his blind spot and that he failed to look in either the passenger-side rearview mirror or the blind-spot mirror on that side.

Moore’s affidavit is noteworthy for its many omissions. However, after examining the documents side by side, we find no actual conflict between the facts asserted in Moore’s affidavit and those set forth in his deposition. Consequently, it cannot be said that any credibility determination between them is necessary.

Liability

Pursuant to our de novo review, we have considered the documents properly submitted both for and against summary judgment. In instances where the witnesses (none of whom are experts) have opined about legal issues of liability, we have disregarded those opinions and considered only the facts established by and based upon their personal knowledge.

121 All of the evidence submitted showed irrefutably that Moore violated the high duty of care imposed upon a driver backing up a motor vehicle. Furthermore, as a professional truck driver, Moore was held to a high standard of care to the motoring public. By his own admission in his deposition, he failed to utilize the tools at his disposal, i.e., the passenger-side rearview and blind-spot mirrors, to determine if it was safe to execute this highly dangerous maneuver. The danger of this movement was increased substantially by the fact that Moore’s vehicle was a truck carrying a hazardous material. Furthermore, instead of applying his brakes immediately when he saw a woman waving and screaming obviously to alert him to an emergency, he accidentally “bumped” the accelerator, propelling the truck laden with propane gas backwards into the front of Chanler’s Jeep.

Under the circumstances of this case, we further find that Chanler cannot be assessed with any comparative fault in causing the collision. He was faced with a sudden emergency not of his own making. He was driving a mail delivery vehicle with a flashing light on top. Chanler thought that the propane truck had driven past a customer’s driveway and was backing up a short distance so it could then stop and pull forward. When he realized that the propane truck was backing up in his direction, Chanler blew his horn and flashed his headlights. While the truck initially moved slowly, it suddenly accelerated backwards. Chanler attempted to put his Jeep in reverse but was unable to retreat more than a yard or two before the impact. Chanler had the right to reasonably assume that Moore was going to stop the propane truck before impact due to the honking horn, the flashing light on top of the Jeep, and the hand waving and screaming of at least one woman trying to warn him of the imminent danger. Furthermore, Chanler stated that he could see | gaMoore’s face in the truck’s passenger-side mirror, which indicated that Moore likewise had the ability to see him. Chanler can scarcely be faulted for not realizing that, despite all of these many warnings and the presence of the truck’s mirrors, Moore remained completely oblivious to his presence.

Based upon our de novo review, we conclude that there is no possible finding of any liability on Ghanler’s part. The Moore deposition clearly establishes that all of the fault was attributable to Moore. Chan-ler was presented with a sudden emergency situation created solely by Moore. As a matter of law, Chanler is not at fault. See Loyd v. Lancer Ins. Co., supra. As a result, we find that partial summary judgment on the issue of liability in favor of the plaintiffs is appropriate. Accordingly, we affirm the trial court judgment.

CONCLUSION

The trial court judgment granting partial summary judgment on the issue of liability in favor of the plaintiffs is affirmed. Costs in this court are assessed to the appellants, O’Nealgas, Inc., and Roger Moore.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, DREW, PITMAN, GARRETT and STONE, JJ.

Rehearing denied.

      . Although the deposition originally said "yards,” Chanler subsequently corrected it to “feet” when he reviewed it.

      . The CD was not included in the appellate record.

      . The court’s reasons for judgment consisted of the following:
      The Court has reviewed the record, memorandums filed, along with the evidence and it is this Court’s opinion that the Motion for Partial Summary Judgment should be DENIED in that there are genuine issues of material fact including but not limited to the following:
      A. The disputed affidavit and recording of Ashley Chase;
      B. The affidavit of Daniel Emoty[.]

      . In relevant part, the policy states:
      BACKING ONLY WHEN ABSOLUTELY NECESSARY
      Postal Drivers should never place a vehicle in a position where backing will be required unless there is no alternative. If a stopped vehicle places you in a position requiring backing, you must: Turn off the engine, get out; walk back; check not only the area immediately behind, but the entire area you plan to use; return to your vehicle and do your backing before the situation changes.

      . While Judge Jimmy Teat heard the first motion, Judge Glenn Fallin presided over the second one.

      . Hereinafter, O’Nealgas and Moore will be referred to collectively as "the appellants.”

      . La. C.C.P. art. 966 was amended in 2015, and the amendment became effective on January l, 2016, The second motion for partial summary judgment was filed and heard after the effective date.

      . An example of these statements is as follows:
      "I am sure the Jeep was too close to me to be seen by me and as I backed up slowly, it could have simply shifted in to reverse and easily backed up faster than I did... I am truly sorry it happened, but I do not believe the Jeep driver did what he could have done to avoid the accident, once he stopped so close to me.


author: CHAISSON, J.

text:
    SUCCESSION OF Claudette Barilleaux GORE
    NO. 17-CA-68
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, DARLENE GORE BREMER-MAN & TAMMY GORE, Samuel S. Dalton, Remy V, Starns, Adam Whitley-Sebti
    COUNSEL FOR DEFENDANT/AP-PELLEE, SUCCESSION OF CLAUDETTE GORE, JOANN CHATELAIN, DULY APPOINTED ADMINISTRA-TRIX AND ROBERT M. GORE, JR., Michelle M. Davis, Mark G. Duncan
    Panel composed of Robert A. Chaisson, Robert M. Murphy, and Hans J. Liljeberg
   CHAISSON, J.

h Darlene Gore Bremermann and Tammy Gore appeal an amended judgment of the trial court which recognized their brother, Robert Mack Gore, Jr., as a son and legitimate heir of their mother, Claudette Barilleaux Gore. For the following reasons, we amend the judgment of the trial court and affirm that judgment as amended.

FACTS AND PROCEDURAL HISTORY

Robert Mack Gore, Jr. (“Robert, Jr.”) was born on March 10,1970, at Sara Mayo Hospital in New Orleans, Louisiana. The birth certificate filed on March 20, 1970, lists Robert Mack Gore, Sr. (“Robert, Sr.”) as his father, and. Claudette Barilleaux Gore as his mother. Robert, Jr. was raised in the Gore household with two sisters, Darlene and Tammy, Claudette’s biological daughters from a previous marriage, who were adopted by Robert, Sr. upon his marriage to Claudette. Robert, Sr. and Claudette always held Robert, Jr. out to the world as their biological child. However, according to Robert, Jr., on his eighteenth birthday he was told by his parents that he was not their biological child, but rather the biological child of Robert, Sr.’s sister, Donna Boren, and that Robert, Sr. and Claudette had agreed to adopt and raise him as their own child. Until, this revelation, Robert, Jr. had no, indication that he may not be the biological child of Robert, Sr. and Claudette, and he had no knowledge of the alleged alternative circumstances of his birth. Likewise, according to Darlene, Robert,. Jr.’s sisters had no knowledge that he may have been adopted until their parents revealed this information to them when they were adults. Following this revelation, the filial relationship of Robert, Jr. to his parents continued until the deaths of Robert, Sr. and Claudette.

Robert, Sr. died intestate on January 30, 1994. Shortly thereafter, in April of 1994, Claudette, Darlene, Tammy, and Robert, Jr. jointly filed a Petition' for | ¡Possession and an Affidavit of Death and Heirship in Robert, Sr.’s succession, wherein the parties recognized Claudette as Robert, Sr.’s, surviving spouse and Darlene, Tammy, and Robert, Jr. as his only children and heirs. The Affidavit of Death and Heirship, executed by Claudette and Robert, Jr., alleged that all three children were adopted by Robert, Sr. At that time, no one disputed Robert, Jr.’s status as an heir of Robert, Sr., nor did anyone challenge the allegation that he is the adopted son of Robert, Sr. After obtaining a Judgment of Possession for Robert, Sr.’s succession, the three children executed a donation inter vivos whereby they donated their rights, title and interest in Robert, Sr.’s property to their mother, Claudette.

Claudette, who never remarried, died intestate on March 8, 2013. On May 1, 2014, Robert, Jr. filed a Petition for the Appointment of Succession Administrator, which stated that he, Darlene, and Tammy are the sole heirs of Claudette, and alleged that Darlene and Tammy were converting Claudette’s assets and funds, living in her home, and refusing to communicate with Robert, Jr. or allow him access to the home to recover his personal property. He also requested that Joann Chatelain, Claudette’s sister-in-law, be appointed adminis-tratrix of the succession and that, following an accounting of the estate finances and assets, the three children be placed in possession of their respective shares of the estate.

On June 12, 2014, Darlene and Tammy filed an Exception of No Right of Action, arguing that Robert, Jr. was never formally adopted by Claudette and therefore had no right to open her succession or petition the trial court for the appointment of a succession administrator. In response to the exception, Robert, Jr. filed a certified copy of his birth certificate which lists Claudette as his mother; he also filed records from the succession proceedings of Robert, Sr., wherein Claudette averred that Robert, Jr. was their adopted son. Following a trial on the exception, the trial court entered a judgment overruling the exception of no right of | saction. In written reasons for judgment, the court took judicial notice of the appearance of Claudette’s name on Robert, Jr.’s birth certificate, that Darlene and Tammy appeared as co-petitioners in Robert, Sr.’s succession proceedings, and that Robert, Jr. was raised as Robert, Sr.’s own child. The court considered the birth certificate prima fade evidence of filiation, and noted that Darlene and Tammy presented no positive evidence to controvert the birth certificate. Darlene and Tammy sought supervisory writs from the trial court’s judgment overruling the exception of no right of action. Both this Court and the Supreme Court denied writs.

Subsequently, in response to a petition filed by Ms. Chatelain, the trial court issued an ex-parte order authorizing her, as administratrix, to take various actions on behalf of the estate; particularly, to establish a succession checking account, to close Claudette’s bank accounts and transfer the monies to the new account, to sell various stocks, bonds and investments, and to pay various debts of the estate. Upon writ application of Darlene and Tammy, this Court vacated the ex-parte order of the trial court and ordered “the trial court to refrain from ruling on the administratrix’s petition until Mr. Gore’s status as an heir is determined by a trial on the merits,” and further ordered “the stay of any further expenditure, sale, or disposal of succession assets and property until Mr. Gore’s status as an heir is determined by a trial on the merits.”

At the beginning of the trial held on January 12, 2016, all parties stipulated that the only issue to be determined was Robert, Jr.’s status as Claudette’s heir. In support of his position that he is a legitimate heir of Claudette, Robert, Jr. offered into evidence his certified birth certificate listing Claudette as his mother and Robert, Sr. as his father. Robert, Jr. argued that the certified birth certificate was \ ¿prima, facie evidence of the information contained therein, thus creating a presumption that he is a legitimate heir of Claudette, and that the burden was on his sisters to prove otherwise. To the contrary, Darlene and Tammy argued that the burden was on Robert, Jr. to produce a judicial decree of adoption in order to-prove his status as a legitimate heir of Claudette.

At the conclusion of trial, at which very limited evidence was introduced, the court entered a judgment recognizing Robert, Jr. as the adopted son of Claudette and as a legal heir of the succession. Darlene and Tammy filed a motion for new trial, which was denied. They then filed an appeal, which this Court dismissed because the judgment was an interlocutory judgment, rather than a final one. Subsequently, the trial court amended its judgment and certified it as final, and it is from this amended judgment that Darlene and Tammy now appeal.

On appeal, Darlene and Tammy raise four assignments of error:

1) Outside of its authority and jurisdiction, the District Court bestowed a status upon the Petitioner when there was no claim that a Judicial Decree of Adoption exists and none was produced;
2) The District Court failed to recognize the burden required by a litigant pleading adoption in a right of action—a judicial adoption may only be proven by producing the Judicial Decree of Adoption;
3) The District Court considered Parol Evidence to support a finding of legal adoption of the Petitioner by the decedent;
4) The District Court allowed the expropriation of succession funds, via ex-parte motion, before legal heir-ship was settled via a trial on the merits, in violation of La. C;C.P. art. 3097, and those funds have not yet been returned to the succession.

As Robert, Jr. has correctly noted, the fourth assignment of error raises an issue which forms no part of the trial court’s judgment following the trial at which both parties stipulated that the sole issue to be determined was Robert, Jr.’s status as an heir of Claudette. Because this last assignment of error is not properly before us, we will not consider it in the course of our en globo discussion below.

J^DISCUSSION

Based upon instructions from this Court in its prior writ disposition, and the stipulation of the parties at the commencement of the trial, the only issue before the court at the trial of this matter was Robert, Jr.’s status as an heir of Claudette. “In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption ...” in the particular order established by the Civil Code. La. C.C. art. 880. The CM Code establishes that the first class of heirs is descendants, who, should there be any who survive the deceased, succeed to the property of their ascendant to the exclusion of other potential, secondary classes of heirs. See generally, La. C.C. art. 888, et seq. Therefore, since Claudette died leaving children who survived her, the question for the trial court was whether or not Robert, Jr. is one of those children.

Filiation is the legal relationship between a child and his parent, and it is established by proof of maternity or paternity or by adoption. La. C.C. arts. 178 and 179. Whether a person, is related by blood or adoption to the decedent and therefore a legal heir is a question of fact. Succession of Gussman, 288 So.2d 665, 668 (La. App. 3 Cir. 1974), The standard of appellate review of facts is manifest error. Succession of Pruitt, 96-534 (La.App. 5 Cir. 1/15/97), 688 So.2d 103, 105.

In order to prove that Claudette is his mother, Robert, Jr. introduced into evi: dence his certified birth certificate, which shows that his mother is Claudette Baril-leaux Gore. “Except for delayed or altered certificates, every original certificate on file in the vital records registry is prima facie evidence of the facts therein stated.” La. R.S. 40:42(A). Therefore, Robert, Jr.’s birth certificate is prima facie evidence that Claudette is his mother, and the burden of proof is on the opponent of the certificate to establish that she is not his mother. Since filiation is established by proof of maternity or by adoption, Darlene and Tammy had the Rburden of proving that Claudette was not Robert, Jr.’s birth mother or his adoptive mother. In order to prove that Claudette is not Robert, Jr.’s adoptive mother, Darlene and Tammy pointed to the absence of a judicial decree of adoption and correctly argued that Robert, Jr. should be required to produce one. This, he was unable to do. We therefore find that the trial court was manifestly erroneous in its factual conclusion that Robert, Jr. is the adopted son of Claudette, and therefore erred including this declaration in its judgment. We therefore amend the judgment to delete the declarar tion that Robert, Jr. is the adopted son of Claudette.

■ However, establishing that Robert, Jr. is not the adopted son of Claudette only satisfied half of Darlene and Tammy’s burden of proof; The other half-of them burden was to establish that Claudette is not Robert, Jr.’s biological mother, and this they failed to do. Although Robert, Jr. referred to himself as adopted in his petition to open this succession, he clearly testified at trial that he was simply told this information, along with the circumstances of his birth, by his parents, both of whom are now deceased. In establishing that he .has no personal knowledge of this information, he testified at trial regarding the identity of his birth mother that “I was told it was my—I mean I don’t know, I was—I was born; I don’t know,” and that “anything I can say is just that I was told that it was my aunt.” Common sense dictates that no individual, including Robert, Jr., has personal, first-hand knowledge of the identity of his birth mother, or the circumstances of his birth, but rather only acquires this second-hand knowledge later in life through what he is told, or from official birth récords. Therefore, Robert, Jr’s mere repetition of information that he. was told, by persons who are now deceased and cannot be called to testify, and of which he is precluded from having personal knowledge; is not competent evidence to establish that Claudette is not his birth mother. As Darlene and Tammy themselves argued in their Exception of No Right of Action, Robert, Jr.’s allegation that he is adopted is “a conclusion of the Pleader and ^becomes a mere brutum ful-men [i.e., a legally ineffectual conclusion] in the absence of supporting facts or documents.”

In their Exception of No Right of Action, Darlene and Tammy recounted the alleged circumstances of Robert, Jr.’s birth, based upon their “information and belief,” and claimed that they would establish that those events occurred at an evi-dentiary hearing. However, at the hearing on the exception, no witnesses were called and no evidence was admitted to establish these alleged alternative circumstances of Robert, Jr.’s birth. At that hearing, Robert, Jr. correctly argued, as he continues to argue in the current trial, that his certified birth certificate is prima fade proof of the information contained therein. In its reasons for judgment for overruling the exception, the trial court stated that “ex-ceptors have come forward with no positive evidence to controvert the prima facie proof of filiation.” As previously stated, Darlene and Tammy’s writ application on this judgment was denied both by this Court and by the Supreme Court. Despite this clear admonition from the trial court regarding their burden of proof to overcome the prima fade proof contained in Robert, Jr.’s birth certificate, Darlene and Tammy have still failed to come forward with any such proof.

At the trial of this matter, Darlene and Tammy called no witnesses. Although Robert, Jr. did call Darlene under cross-examination, she did not testify regarding any knowledge that she may have regarding the alternative circumstances of Robert, Jr.’s birth, or how she may have acquired that information. She did, however, testify that it was not until she was an adult that she was told by her parents that Robert, Jr. was adopted, thus clearly establishing that she does not have personal, first-hand knowledge regarding the identity of Robert, Jr.’s birth mother or the circumstances of his birth. Basically, Darlene and IsTammy’s argument is that the secondhand recounted statements by their parents that Robert, Jr. is adopted are sufficient to establish that Claudette is not his birth mother, but they are not sufficient to establish that he was adopted by Claudette. We do not find these second-hand statements recounted from people who are now deceased as competent evidence to refute the prima fade proof contained in Robert, Jr.’s birth certificate that he is the son of Claudette. There was no manifest error in the trial court’s determination that Robert, Jr. is a son of Claudette, and we therefore affirm that portion of the trial court’s judgment that declares that Robert, Jr. is a legal heir to the succession of Claudette.

CONCLUSION

For the foregoing reasons, we amend the judgment of the trial court to delete the declaration that Robert, Jr. is the adopted son of Claudette, and we affirm the judgment as amended to declare that Robert, Jr. is a legal heir to the succession of Claudette.

AFFIRMED AS AMENDED

      . Succession of Gore, 14-667 (La. App. 5 Cir. 9/5/14)(unpublished writ disposition), writ denied, 14-2505 (La. 2/27/15), 160 So.3d 984.

      . Succession of Gore, 15-576 (La. App. 5 Cir. 9/17/15)(unpublished writ disposition).

      . Succession of Gore, 16-366 (La.App. 5 Cir. 9/22/16), 202 So.3d 573.

      . Interestingly, prior to the commencement of these proceedings, Darlene had mailed an "Affidavit of Renunciation” to Robert, Jr. in jail, along with a hand-written note asking him to sign it, the effect of which would have been Robert, Jr.’s renunciation of any interest in Claudette’s estate in favor of Darlene. The affidavit which Darlene had prepared alleged that "Robert, Jr. is the son of Claudette.”