author: Judge Madeleine M. Landrieu

text:
    STATE of Louisiana IN the INTEREST OF R.W.
    NO. 2016-CA-1187
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 2, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT, STATE OF LOUISIANA
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Madeleine M. Landrieu

hThe State of Louisiana appeals the judgment of the juvenile court, dismissing the delinquency petition filed against R.W. on the basis that he was not timely adjudicated. The State argues that the juvenile court abused its discretion (1) in refusing to continue the adjudication hearing when the State’s key witnesses failed to appear at trial despite its diligent efforts to have them served, and (2) in dismissing the delinquency petition. For the reasons that follow, we affirm the juvenile court’s judgment.

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

On June 2, 2016, the State filed a petition in the Orleans Parish Juvenile Court alleging that R.W., a fourteen-year-old juvenile, violated La. R.S. 14:34.1 in that he committed a second degree battery upon a named male, also a juvenile. The petition requested that the child be adjudicated delinquent. An Answer Hearing was held on June 6,2016, at which time R.W. denied the allegations of the petition and the court set the matter for adjudication hear-tag on August 8, 2016. The clerk of court was ordered to issue trial subpoenas to all persons identified on the witness list.

|2On August 8, 2016, R.W. appeared for trial. Because no service had been issued, the court, on its own motion and over defense counsel’s objection, continued the matter until August 22, 2016. At that time, pursuant to La. C.Cr.P. art. 734(C), the State filed a motion to appoint a special process server, which was granted.

R.W. appeared for trial on August 22, 2016. At the hearing, the court, again on its own motion and over defense counsel’s objection, continued the matter until August 29, 2016, “based on no service of essential State witnesses.” Further, the court ordered the State to produce a good address for the victim witness. In ordering the continuance, the court stated:

[I]f this matter has to be continued, once again, the Court will listen to a Motion to Deny the Continuance by Defense Counsel.

On August 29, 2016, R.W. again appeared for trial, but the State requested that the matter be continued on the basis that it had not yet received confirmation from the New Orleans Police Department (“NOPD”) of the accuracy of the victim’s address. The court, over the “vigorous objection” of defense counsel, granted the continuance and reset the matter for a status conference on August 31, 2016. On that date, the matter was continued to the following day, September 1, 2016, for “ADA Address Status” because the State was still awaiting confirmation of the victim’s address from the NOPD. On September 1, 2016, the State reported to the court that the NOPD officer had confirmed the accuracy of the victim’s |3address. Accordingly, the court, noting defense counsel’s continuous objection, and finding “good cause under [La.] Ch.C. Art. 877 to extend the trial period in this matter to the next hearing date,” reset the adjudication hearing to September 12, 2016. Additionally, the clerk of court was ordered to issue service to the victim’s address, for which they now had confirmation, “by regular mail and by certified mail, return receipt requested.”

In anticipation of the September 12, 2016 hearing, on September 6, 2016, the State filed a motion to appoint NOPD Officer Thomas Hutchison, Investigator for the Orleans Parish District Attorney’s Office, as special process server in order to effectuate service of the court subpoenas to the named witnesses, i.e., the victim and his mother. An order appointing the special process server was signed that same day and service upon the victim’s mother was effectuated.

On September 12, 2016, the court, again on its own motion, and having found “good cause” to extend the trial period to the next scheduled hearing date because, on this occasion, the defendant had not been served, continued the matter to September 26, 2016. Additionally, the court, noting that the address for the victim and his mother was “valid and inhabited,” ordered the clerk of court to issue trial subpoenas at that address.

On September 22, 2016, the State once again moved the court to appoint a special process server to effectuate service of the trial subpoenas upon the victim and his mother. The court granted the motion and issued an order that same date appointing NOPD Officer Hutchison as special process server.

|4On September 26, 2016, the fifth setting for the adjudication hearing, R.W. appeared for trial. The State requested another continuance on the basis that it was unprepared to go forward due to its inability to serve the victim and his mother. In denying the continuance, the court considered that, in addition to the appointment of the special process server, the clerk’s office also went through its normal procedures of attempting service upon the witnesses to no avail. Additionally, the State conceded to the court that it had not engaged in any communications with the witnesses during the four months preceding the hearing. Accordingly, for these reasons, and having determined no “good cause” existed to move the matter beyond the time limitation, the trial court denied the State’s motion for a continuance due to the failure of its witnesses to appear at trial. The State objected to the court’s ruling and requested time to file a writ application with this Court. The State also requested a stay, which was denied.

The record reflects that the defense then moved for dismissal of the petition for failure to timely prosecute pursuant to Article 877 of the Louisiana Children’s Code. Based on the trial court’s finding that no “good cause” existed to move the matter beyond the timeline, the trial judge granted the defendant’s motion and dismissed the delinquency petition. A judgment of dismissal was signed by the trial judge on September 28, 2016. From this judgment, the State timely appealed.

JjPISCUSSION

In this appeal, the State maintains that the juvenile court abused its discretion in refusing to continue the trial and in dismissing the delinquency petition. In short, the State argues that its diligent efforts to effectuate service upon the victim and his mother as noted by the trial judge, ie., appointing a special process server on more than one occasion, constituted good cause for the delay in commencing trial under Louisiana Children’s Code article 877, especially in light of the defendant’s failure to demonstrate any prejudice to his case because of the delay.

This article provides for the time limitations applicable here. In pertinent part, it states:

B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not commenced timely, upon motion of the child, the court shall ... dismiss the petition.
D. For good cause, the court may extend such period.

La. Ch.C. art. 877.

In the present case, because R.W. was not continued in custody, the State had ninety days from June 6, 2016, the date he appeared to answer the petition, to bring the matter to trial. La. Ch.C. art. 877(B). Applying the formula set forth in Children’s Code article 114, R.W.’s adjudication hearing should have commenced by September 6, 2016.

IfiThe Louisiana Supreme Court held in State in the Interest of R.D.C., Jr., 93-1865 (La. 2/28/94), 632 So.2d 745, 748, that the time period set forth in La. Ch.C. art. 877 is mandatory and “it is incumbent on the [S]tate to make a showing of good cause and obtain an extension before the time period has run.” The Court further noted that in considering what constitutes good cause, the juvenile judge should be mindful of those situations or causes beyond the control of the State that may impinge on its ability to prepare for a hearing. Id. at 749. What constitutes good cause, i.e., legally sufficient reason, for dismissal of a juvenile delinquency matter must be determined on a case-by-case basis and must be fully supported by the record. State ex rel. S.R., 08-0785, p. 4 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 66. The juvenile court is vested with broad discretion in determining whether a case should be dismissed for good cause. State ex rel. R.G., 06-1625, p. 3 (La.App. 4 Cir. 7/18/07), 963 So.2d 475, 477.

In support of its “good cause” argument herein, the State cites State v. Ring, 461 So.2d 1162 (La. App. 3 Cir. 1984), wherein the Third Circuit held that a delay 17due to the State’s search for a key witness was sufficient to establish just cause for delay of the trial, especially where the defendant did not appear to have suffered any prejudice. In the instant case, however, the delay was not due to the State’s inability to locate a key witness; to the contrary, the exact location of the State’s witnesses herein had been confirmed. In fact, the first time the trial court granted a continuance extending the hearing beyond the time limitations, it did so upon finding that good cause existed. The address of the witnesses had finally been confirmed and service upon them could then be accomplished.

On September 26, 2016, the fifth setting of R.W.’s adjudication hearing—the second setting beyond the ninety-day time limitation established in Louisiana Children’s Code art. 877—the trial judge refused to find that the State’s inability to once again effectuate service on the victim and his mother constituted sufficient good cause to extend the time limitations any further. We agree.

The record reflects that, except for the one occasion when the defendant did not appear because he was not served, R.W. was present and ready to proceed each time the adjudication hearing was re-set. The record further reflects that, for each trial setting, R.W. was required to miss school in order to appear. Moreover, as the trial judge suggested, the State’s lack of communication with the victim and his mother and its continued difficulty in having them served arguably reflects the victim’s apparent disinterest in assisting the State in pursuing the charges against the defendant. On at least one occasion, the witnesses knew it was the police knocking on their door, yet they refused to answer it; consequently, service of the trial subpoenas was not accomplished. There is nothing in the record to suggest that additional time and/or repeated efforts to effectuate service would be successful.

IsAccordingly, having considered the particular facts and circumstances presented in this case, because the time limitations set forth in La. Ch.C. art. 877 are mandatory, we find the trial judge did not abuse his discretion in refusing to And good cause existed to grant the State a second request for continuance beyond the ninety-day period. Moreover, as the remedy for an untimely adjudication hearing is dismissal of the petition, we affirm the trial court’s dismissal of the delinquency petition filed by the State against R.W.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the juvenile court dismissing the delinquency petition filed against R.W. because he was not timely adjudicated.

AFFIRMED

      . La. C.Cr.P. art. 734(C) provides, in pertinent part:
      When the district attorney is involved in the investigation or prosecution of a criminal case, investigators who are employed by that district attorney .,. and who are commissioned law enforcement officers may serve any subpoena or subpoena duces te-cum which is issued in that case.

      . The record on appeal indicates that even though the victim’s mother had been served to appear for trial on September 12, 2016 (the defendant had not been served), she did not appear for trial in accordance with the subpoena.

      . According to the State, on the eve of the September 26, 2016 adjudication hearing, Officer Hutchison went to the witnesses’ address to serve the subpoenas and, after knocking on the door, he heard someone say, "It’s the police.” No one came to the door and the subpoenas were not served.

      . The State filed an application for supervisory writ in this Court seeking review of the trial court’s denial of its motion for continuance, which was denied. State in the Interest of R.W., 16-0981 (La. App. 4 Cir. 9/26/16)(unpublished). The State then filed an application for supervisory writ with the Louisiana Supreme Court, which remains pending.

      . La. Ch.C. art. 114 provides:
      A. In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
      B. A half-holiday is considered as a legal holiday.
      C. A legal holiday is to be included in the computation of a period of time allowed or prescribed, except in any one of the following instances:
      (1) It is expressly excluded.
      (2) It would otherwise be the last day of the period, except that, for purposes of calculating a release date from an order of commitment, a legal holiday shall be included if it is the last day of the period.
      (3) The period is less than seven days.
      D.All Saturdays and Sundays are also considered as legal holidays.


source: Caselaw Access Project

author: DRAKE, J.

license: Public Domain

text:
    SUCCESSION OF Genita Schorling POOLE Enid Poole Gorringe and Erin M. Poole v. Ashley A. Poole Fuselier Enid Poole Gorringe and Erin M. Poole v. Ashley A. Poole Fuselier
    2015 CA 1317 Consolidated with 2015 CA 1318 Consolidated with 2015 CA 1319
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 28, 2016

      Galen M. Hair, New Orleans, Louisiana and Anthony M. DiLeo, New Orleans, Louisiana, Attorneys for Appellant, Plaintiff/Defendant Ashley Poole Fuselier, Individually
    A. William Mysing, Jr., Covington, Louisiana, Attorney for Appellee/Third Party Defendant, Catherine C. Oalman, as Trustee of the Genita Schoriing Poole Trusts
    Michael A. Mayhall, John C. Henry, Richard L. Muller, Sr., Covington, Louisiana and Robert A. Kutcher, Nicole S. Ty-gier, Metairie, Louisiana, Attorneys for Appellee/Plaintiff, Ashley A. Poole Fuselier, as Testamentary Executrix of the Succession of Genita Schoriing Poole
    Alex J. Peragine, Christa Hayes Forres-ter, Covington, Louisiana and Dennis M. LaBorde, New Orleans, Louisiana, Attorneys for Appellee/Plaintiff/ Defendant, Enid Poole Gorringe
    David G. Koch, Michelle Lorio St. Martin, Baton Rouge, Louisiana and Darrel J. Papillion, Monica Vela-Vick, Baton Rouge, Louisiana, Attorneys for Appellee/Plaintiff/ Defendant, Erin Marie Poole
    Lanny R. Zatzkis, Karen D. McCarthy, New Orleans, Louisiana, Attorneys for Ap-pellee/Defendant, Michael A. Mayhall, Counsel to the Succession
    BEFORE: PETTIGREW, McDonald, and drake, jj.
   DRAKE, J.

I «This is an appeal of a judgment granting an exception raising the objection of prescription, and in the alternative, granting a motion for judgment on the pleadings, thereby dismissing the third party demand of Ashley Poole Fuselier. For the following reasons, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a succession proceeding following the death of Genita Schoriing Poole on January 29, 2012 (Succession). Ashley Poole Fuselier, the daughter of Genita and Weldon Wallace Poole, Jr. (who predeceased Genita), filed a petition to probate the testament of Genita. In a separate action, Enid Poole Gorringe and Erin M. Poole, the daughters of Weldon Poole from his first marriage to Stephanie Arculeer, filed a petition for damages against Ms. Fuselier, claiming that she mismanaged certain rental income as the testamentary executrix of the Succession. Enid Poole Gorringe and Erin M. Poole also filed a second separate petition against Ms. Fuselier, claiming that she mismanaged certain trust proceeds as the testamentary executrix of the Succession. All three matters were consolidated.

Prior to Genita’s death, she created a life insurance trust naming as beneficiaries the two children she had with Weldon Wallace Poole, Jr.: Ms. Fuselier and Weldon Wallace Poole, III (Wally), who predeceased Genita. Genita’s two step-daughters, Enid and Erin, were not named in the trust. Genita appointed Catherine C. Oalmann, a bookkeeper for the family business, the Poole Lumber Company, to serve as trustee. After Genita died, Ms. Oalmann gave all of the two million dollars in trust proceeds to Ashley. Enid Poole Gorringe and Erin M. Poole disputed the distribution of the trust proceeds and filed suit against Ms. Fuselier, claiming that because Wally had no descendants at the time of his death, |4the two million dollars in the trust was to be divided equally among Ashley, Enid, and Erin, Wally’s surviving siblings, rather than being paid fully to Ms. Fuselier.

Ms. Fuselier responded to the suit filed against her by Enid and Erin by asserting reconventional demands against both of them, and by filing a third party demand against Ms. Oalmann, the trustee of The Genita Schorling Poole Life Insurance Trust Number One (Trust Number One), alleging that if Ms. Oalmann wrongfully distributed the funds of Trust Number One, then Ms. Oalmann was negligent and grossly negligent. As a result, Ms. Oal-mann filed a motion for judgment on the pleadings and an exception raising the objection of prescription as to the third party demand of Ms. Fuselier. In the motion for judgment on the pleadings, she contended that Ms. Fuselier failed to allege that she had suffered any monetary damage in a way that would entitle her to recover a judgment in her favor as a matter of law under any of the facts alleged. In the exception raising the objection of prescription, she contended that Ms. Fuselier’s claims against her sounded in tort and, therefore, were subject to a one-year prescriptive period that was triggered no later than May 22, 2012, the date Ms. Oalmann’s check to Ms. Fuselier cleared the trust account (i.e., more than a year before the main demand was filed). Ms. Fuselier filed oppositions to both pleadings.

After two separate hearings on the motion and the exception, the trial court signed a judgment on March 5, 2015, granting the exception raising the objection of prescription and, in the alternative, granting the judgment on the pleadings, thereby dismissing the third party demand of Ms. Fuselier against Ms. Oalmann. The written judgment memorializing the trial court’s oral rulings stated in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that the Exception of Prescription be and is hereby maintained and, in the alternative, the Motion for Judgment on the Pleadings is granted and the Third Party Demand of Ashley Poole Fuselier 15be and the same is hereby dismissed with prejudice and at third party plaintiffs cost.

Ms. Fuselier sought supervisory writs with this court following the signing of the March 5, 2015 judgment. This court granted the writ and reversed the trial court judgment on the exception raising the objection of prescription and the judgment on the pleadings. This court also remanded the matter to the trial court for an eviden-tiary hearing to be held pursuant to La. C.C.P. arts. 931 and 2164. In the Matter of the Succession of Genita Schorling Poole, 2015-0561 (La. App. 1 Cir. 7/29/15) (unpublished writ action).

A thorough review of the record reveals that the last hearing in the trial court was held on April 21, 2015, on a different matter entirely, and there has been no eviden-tiary hearing held or judgment signed following the July 29, 2015 ruling of this court.

While the aforementioned writ was still pending before this court, Ms. Fuselier requested a devolutive appeal of the same judgment, which the trial court granted the following day. Before the appeal was lodged, Ms. Oalmann filed an answer to the appeal in the trial court, requesting sanctions because the appeal was frivolous.

After this court granted her writ and after the appeal was lodged in this court, Ashley filed her appellate brief and a “Motion to Strike Answer of Catherine Oal-mann for Lack of Jurisdiction and Motion to Dismiss Appeal as Moot.” In both the appellate brief and the motion, Ms. Fuselier urges this court to dismiss her appeal as moot in light of this court’s action on her writ. Ms. Oalmann has not filed an answer in this court. In her appellee brief, she requests that this court’s action on the writ be recalled because she was never served with a copy of the writ application. She does not brief the issue raised in her answer (that was filed in the lfitrial court)—that Ms. Fuselier’s appeal is frivolous. The motion to strike was deferred to this appellate panel.

LAW AND ARGUMENT

Before us is the unusual circumstance in which the appellant, Ms. Fuselier, has filed an appeal from the March 5, 2015 judgment upon which we have already ruled, and has asked this court to dismiss the appeal as moot given our reversal of the trial court judgment in granting the writ. Ms. Fuselier requests this court to recognize and uphold our previous ruling on the writ. Ms. Oalmann claims that her counsel was never served with a copy of the actual writ application and brief filed on behalf of Ms. Fuselier, thereby denying her the opportunity to reply to the writ application.

The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it; the issue may be considered at any time, even by an appellate court on its own motion, at any stage of an action. Boudreaux v. State, Dept. of Transp. and Development, 2001-1329 (La. 2/26/02), 815 So.2d 7, 13. Moreover, it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Boudreaux, 815 So.2d at 13; City of Baton Rouge v. Bernard, 2001-2468 (La. App. 1 Cir. 1/22/03), 840 So.2d 4, 6, writ denied, 2003-1005 (La. 6/27/03), 847 So.2d 1278. Thus, subject matter jurisdiction is a threshold issue. Citizens Against Multi-Chem v. Louisiana Dept. of Environmental Quality, 2013-1416 (La.App. 1 Cir. 5/22/14), 145 So.3d 471, 474, writ denied, 2014-1464 (La. 10/10/14), 151 So.3d 586. Therefore, we must decide if we have subject matter jurisdiction over this appeal.

After this court rendered judgment on the writ application, the parties did not apply for a rehearing with this court, nor did any of the litigants seek review from the supreme court as provided in La. C.C.P. art. 2166. Under the express provisions of La. C.C.P. art. 2166(A):

|7The judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certiorari is timely filed.

A judgment that decides the merits of the case in whole or in part is a final judgment. La. C.C.P. art. 1841; Tolls v. Board of Supervisors of Louisiana State University, 95-1529 (La. 10/16/95), 660 So.2d 1206 (per curiam). A final judgment may be rendered by either a trial court or an appellate court, and a judgment by an appellate court that decides the merits of the case is a final judgment, regardless of whether the case reached the appellate court on appeal or on supervisory writs. Tolis, 660 So.2d at 1206. A final judgment is conclusive between the parties except on direct review. La. R.S. 13:4231. Moreover, a final judgment becomes final and definitive and acquires the authority of the thing adjudged if no further review is sought within the time fixed by law, if the Supreme Court denies an application for cer-tiorari, or if the judgment is confirmed on further review. La. C.C.P. arts. 2166(E) & 2167; Tolis, 660 So.2d at 1206; Batson v. S. Louisiana Med. Ctr., 2006-1998 (La. App. 1 Cir. 6/13/07), 965 So.2d 890, 895-96, writ denied, 2007-1479 (La. 10/5/07), 964 So.2d 945. Once a final judgment becomes final and definitive and acquires the authority of the thing adjudged, no court has jurisdiction, in the sense of power and authority, to modify, revise or reverse the judgment, regardless of the magnitude of the error in the final judgment. Tolis, 660 So.2d at 1206; Batson, 965 So.2d at 896.

Where certiorari is granted on the application of any party, the judgment cannot be changed to the benefit of another party who has failed to apply for review. Wyatt v. Avoyelles Par. Sch. Bd., 2001-3180 (La. 12/4/02), 831 So.2d 906, 916.

In a case similar to the present matter, a court of appeal granted writs and sustained exceptions of prescription. No party sought review of the appellate court judgment or applied for writs to the supreme court. Therefore, the appellate court I «judgment granting the application for supervisory writ and granting the exceptions of prescription was a final judgment that was not subject to modification. Consequently, the appellate court had no jurisdiction over devolutive appeals subsequently permitted by the trial court, and the appeal was dismissed. Bourque v. Kansas City Southern Ry. Co., 99-533 (La.App. 3 Cir. 5/27/99), 738 So.2d 51, 55, writ denied, 750 So.2d 184, 99-2184 (La. 11/5/99).

All matters previously decided by this court in the writ application cannot now be re-litigated. Furthermore, this court notes that although Ms. Oalmann claims that her counsel was never served with a copy of the writ application and that she had no opportunity to respond to the writ application, this court has a notice of writ which was forwarded to all counsel of record, including current counsel for Ms. Oalmann, at the same address used in this appeal. Additionally, this court sent notice of the judgment on the writ to Ms. Oalmann’s counsel at the same address that counsel used in this appeal. At the very least, Ms. Oalmann could have asked for a rehearing after receiving notice of the judgment on the writ application or filed for supervisory review from the supreme court.

We have no subject matter jurisdiction over this appeal and grant the motion to dismiss the appeal.

Answer to Appeal

As noted earlier, Ms. Oalmann filed an answer to the appeal seeking damages for frivolous appeal. Before this court is also Ms. Fuselier’s motion to strike the answer to the appeal based upon the fact that Ms. Oalmann filed the motion in the trial court, rather than with this court. We must first address whether the appellee’s answer is deficient and, whether it should be stricken.

| ^Filing Answer in Trial Court

Ms. Fuselier filed her motion and order for appeal on May 4, 2015, in the trial court. The trial court signed an order granting the appeal on May 5, 2015. Ms. Oalmann filed the answer to the appeal in the trial court on May 14, 2015.

Louisiana Code of Civil Procedure article 2133 governs the filing of answers to appeals. It provides:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appel-lee’s action.
B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs. [Emphasis added].

The article does not designate the court in which the answer must be filed.

Ms. Fuselier urges that the once the order granting the appeal was signed, the trial court was divested of jurisdiction and the answer to the appeal could not be filed in the trial court. Louisiana Code of Civil Procedure article 2088 states that the trial court is divested of its jurisdiction over all matters in cases that are reviewable under the appeal when the order of devolutive appeal is granted; however, it also states that the trial court maintains jurisdiction in the case over those matters not reviewable under the appeal, including the right to “[g]rant an appeal to another party.” See La. C.C.P. art. 2088(A); La. C.C.P. art. 2088(A)(6).

| inMs. Fuselier relies upon Smoot v. Hernandez, 2008-1121 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, 361, in which the third circuit found that an answer filed in the trial court after the appeal was taken was not valid because the trial court lacked jurisdiction over the answer. The Smoot court granted the appellant’s motion to strike the answer. It is noted that there were two other deficiencies with respect to the appellee’s answer in that case. In the more recent third circuit case, also involving an answer filed in the trial court after the appeal was taken but before the appeal was lodged, the third circuit found the answer was “not timely filed.” See Kelly v. Boise Building Solutions, 2011-1116 (La. App. 3 Cir. 5/2/12), 92 So.3d 965, 968, writs denied, 2012-1173, 1209 (La. 10/8/12), 98 So. 3d 851. The court in Kelly, therefore, declined to consider the answer; it did not strike the answer.

Ms. Oalmann filed an opposition to the motion to strike the answer, relying upon Cooper v. Orleans Parish School Board, 99-0050 (La.App. 4 Cir. 9/8/99), 742 So.2d 55, writ denied, 99-2886 (La. 12/10/99), 751 So.2d 858, which held that an answer can be validly filed in the trial court. The Cooper case likewise involved an answer that was filed in the trial court before the appeal was lodged. In considering the issue, the court emphasized that appeals are favored in the law and pointed out that the answer was filed at a time when there was no record into which the appellee could file his answer. The court also saw no reason to require counsel for the appellee “to constantly watch for notice of the filing of the record in the court of appeal to make certain the answer is not filed later than 15 days thereafter.” Therefore, the court did not dismiss the answer. In reaching its decision, the Cooper court did not address La. C.C.P. article 2088 or the concomitant question of whether the answer was filed in a court that possessed jurisdiction over it.

InMs. Oalmann also relies upon Diesel Engine Repairs, Inc. v. Point Landing, Inc., 291 So.2d 791 (La. App. 4 Cir. 1974), where the appellee filed an answer to appeal in the trial court at a time when the record was still in the trial court. The fourth circuit stated:

There is no law or jurisprudence which interdicts or prohibits the filing of the answer to the appeal in the district court while the record in the case appealed is still in the district court.

Diesel Engine Repairs, Inc., 291 So.2d at 791.

Neither party refers to this circuit’s case previously addressing the issue in Brouillette v. Consol. Const. Co. of Florida, 411 So.2d 598, 599 (La. App. 1 Cir. 1982). The defendant in Brouillette claimed that the answer to the appeal should have been filed in the appellate court rather than the trial court, and urged the appellate court to dismiss the answer for that reason alone. This court stated:

The only stricture on the filing of an answer is that it be filed “not later than fifteen days after the return day or the lodging of the record whichever is later.” Article 2133 of the Code of Civil Procedure. There is no requirement that it be filed in the appellate court.

Furthermore, this court noted that “[sjince no action is required by the court relative to an answer, the question of the authority of the trial court, under Article 2088 of the Code of Civil Procedure, need not be considered.” Brouillette, 411 So.2d at 599.

We also note that the fifth circuit, relying on our opinion in Brouillette, also denied a motion to strike an answer that was filed in the trial court after a devolutive appeal was granted. Palmer v. Benson Toyota Co., Inc., 93-1059 (La. App. 5 Cir. 5/31/94), 641 So.2d 547, 550, writ denied, 94-2600 (La. 12/16/94), 648 So.2d 392.

Based upon our previous holding in Brouillette, we deny the motion to strike filed by Ms. Fuselier.

| failing to Brief Issue Raised in Answer

Ms. Fuselier also objects to the answer filed by Ms. Oalmann because the only issue raised in the answer, the frivolousness of the appeal, was never briefed as required by Uniform Rules of the Courts of Appeal Rule 2-12.4(B)(4).

Rule 2-12.4(B)(4) of the Uniform Rules requires that “[a]ll assignments of error and issues for review.. .be briefed.” While Rule 2-12.4 is entitled “Appellant’s Brief,” the rule has been applied to answers. See Duhon v. Albertson’s, Inc., 2002-0494 (La. App. 3 Cir. 10/30/02), 829 So.2d 1190. In the present case, the appellee’s answer only contends that the appeal was frivolous and that the appellant should be sanctioned as a result. The appellee did not brief the frivolous appeal claim in her ap-pellee brief or in any other pleading she has filed with this court.

The substantive and procedural effect of an answer to an appeal is the same as an appeal. Vining v. Bardwell, 482 So.2d 685, 694 (La. App. 1 Cir. 1985), writ denied, 487 So.2d 439 (La. 1986), citing State ex rel. Guste v. Pickering, 365 So.2d 943 (La. App. 4th Cir. 1978), writ denied, 366 So.2d 556 (La. 1978). The only distinction between them is that La. C.C.P. art. 2133 requires that an answer to an appeal state the relief demanded. The party answering an appeal is an appellant for purposes of the appellate relief he seeks. The Courts of Appeal of Louisiana will only review an issue which is contained in an assignment or specification of error. Rule 1-3, Uniform Rules-Court of Appeal. Further, a court of appeal may consider as abandoned an assignment or specification of error which has not been briefed. Rule 2-12.4, Uniform Rules-Court of Appeal. Vining, 482 So.2d at 694. Ms. Oalmann has not briefed the issue of the frivolousness of the appeal filed by Ms. Fuselier. In this factual posture, this complaint asserted in the answer to the appeal has been abandoned. Vining, 482 So.2d at 694, citing Vernon v. Aetna Life and Casualty Insurance Company, 442 So.2d 674 (La. App. 1 Cir. 1983); Ketcher v. Illinois Central Gulf Railroad Company, 440 So.2d 805 (La. App. 1 Cir. 1983), writs denied, 444 So.2d 1220, 1222 (La. 1984).

CONCLUSION

For the above and foregoing reasons, we dismiss the appeal, deny the motion to strike, and deem abandoned the answer to the appeal. This case is remanded for further proceedings. Costs of this appeal are assessed equally among the parties, Ashley Poole Fuselier and Catherine C. Oalmann.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED; MOTION TO STRIKE ANSWER DENIED; ANSWER TO APPEAL DEEMED ABANDONED; CASE REMANDED FOR FURTHER PROCEEDINGS.

McDonald, J. concurs.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Deon DANNA v. The RITZ-CARLTON HOTEL CO., LLC, et al.
    No. 2015-CA-0651.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2016.
    Rehearing Denied July 13, 2016.

      K. Randall Evans, Jaimie A. Tuchman, Evans & Clesi, PLC, New Orleans, LA, for Plaintiff/Appellant, Deon Danna.
    George D. Fagan, Margaret F. Swet-man, Tiffany T. Smith, Leake & Anders-son, L.L.P., New Orleans, LA, for Defendants/Appellees, The Ritz-Carlton Hotel Company L.L.C., Marriott International, Inc., Russell Miller, and Zachary Curry.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA C. JENKINS).
   TERRI F. LOVE, Judge.

11 This appeal arises from the termination of plaintiff from his position as the Director of Engineering at the Ritz-Carlton Hotel. Plaintiff filed a petition for damages contending that his termination constituted a breach of contract, that he was defamed, that he was fired for informing corporate that his supervisor took furniture without permission, and that the defendants intentionally destroyed evidence.

The trial court granted all of the defendants’ motions for summary judgment regarding plaintiffs claims relative to breach of contract, defamation, whistleblowing, and spoliation, which resulted in the dismissal of the plaintiffs case. The trial court also denied the plaintiffs request for an adverse presumption based on spoliation.

We find that the trial court erroneously weighed the evidence and made credibility determinations when granting the defendants motions for summary judgment relative to breach of contract, whistleblowing, and spoliation. Therefore, we reverse and remand for proceedings consistent with this opinion. We find that the trial court correctly granted defendants’ motion for summary judgment regarding the plaintiffs defamation claims because the record lacks any evidence |2that the statements were published to someone outside of the hotel chain of command in the normal course and scope of employment. Thus, we affirm. Lastly, because the plaintiffs request for an adverse presumption rests upon the resolution of the spoliation claims by the factfinder, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Deon Danna worked as the Director of Engineering at the Ritz-Carlton New Orleans (“Ritz-Carlton”) for ten years, and was also a member of the Guidance Team. Russell Miller became his supervisor, as the General Manager in 2009. Mr. Miller transferred to New Orleans from the Caribbean. Therefore, he had to set up a new household in New Orleans. In May/June 2009, Mr. Miller instructed Mr. Danna to assist him in selecting furniture from the Ritz-Carlton annex and moving it to his new home. Mr. Danna advised Mr. Miller that he thought borrowing Ritz-Carlton furniture was a “bad idea.” Mr. Miller disagreed with Mr. Danna. Subsequently, Mr. Danna and some other Ritz-Carlton employees made at least three trips to take furniture and other items to Mr. Miller’s house. Following the first trip to Mr. Miller’s house, Mr. Danna allegedly informed the Ritz-Carlton Human Resources Director. Mr. Miller testified in his deposition that he was angry at and offended by Mr. Danna for reporting the furniture move. A few days after Mr. Danna allegedly informed Human Resources about the incident, Mr. Miller issued his first written discipline of Mr. Danna. Several successive written disciplinary actions followed. Mr. Danna’s pri- or work record with the Ritz-Carlton did not contain disciplinary actions similar to those issued by Mr. Miller.

On June 17, 2009, Mr. Danna was disciplined with a verbal warning forspending in excess of the engineering budget, forgetting about a presentation, following up on “assigned tasks in a timely [sic] manner,” and untimely attendance at meetings. On July 23, 2009, Mr. Danna received a written warning because he left his P-Card.in an engineering department safe while he was on vacation, and because Mr. Danna allegedly gave his safety deposit box key to another staff member for access. On September 17, 2009, Mr. Danna received a revised written warning citing his usage of an outside vendor, again raising the P-Card and safety deposit box issues, late payment and double payment of the electrical bill, late submittal of monthly critiques, and because someone called the trash removal company to request an additional pick-up.

Then, on January 18, 2010, there was a build-up of carbon monoxide on some of the guestroom floors, which resulted in the evacuation of hotel guests and the treatment of some guests at nearby hospitals. On February 1, 2010, Mr. Danna received a written suspension notification, based upon the carbon monoxide incident, asserting that he caused the release by negligently working on exhaust shafts. The letter indicated that Mr. Danna should meet with Mr. Miller on February 4, 2010, to discuss the investigation into the carbon monoxide leak. It is undisputed that on February 4, 2010, Mr. Miller fired Mr. Danna.

On May 7, 2010, counsel for Mr. Danna wrote a letter to Ritz-Carlton indicating that he was retained by Mr. Danna to represent him against Ritz-Carlton for damages and his reinstatement. Subsequently, on January 3, 2011, Mr. Danna filed a Petition for Damages against the Ritz-Carlton Hotel Company, LLC; Marriott International, Inc.; Mr. Miller; and Zachary Curry, the hotel manager (collectively “Defendants”). Mr. Danna asserted that Defendants breached his contract of employment, wrongfully terminated him because he was a |4whistleblower, and that he suffered defamation at the hands of Defendants. Defendants filed a reconven-tional demand seeking attorneys’ fees and costs.

After conducting years of contentious discovery, Mr. Danna filed a Motion for Adverse Presumption based on the alleged spoliation of evidence. Mr. Danna then filed an Amended Petition contending the Defendants committed spoliation. The Defendants then filed four Motions for Partial Summary Judgment seeking the dismissal of Mr. Danna’s defamation claims against Mr. Miller and Mr. Curry, the dismissal of the breach of contract claims, as well as the dismissal of the whistleblower claims. Mr. Danna then filed a Motion for Summary Judgment on liability. Defendants also filed an exception of prescription as to Mr. Danna’s whistleblower claims, which the trial court denied.

Following a hearing on all of the motions for summary judgment and Mr. Dan-na’s Motion for Adverse Presumption, the trial court: 1) denied Mr. Danna’s Motion for Summary Judgment on liability, 2) denied Mr. Danna’s Motion for Adverse Presumption based on spoliation, and granted all three of Defendants’ Motions for Summary Judgment regarding breach of contract, whistleblower, and defamation claims. Mr. Danna requested that the trial court designate the judgment as final and appealable. Defendants then filed a Motion for Partial Summary Judgment regarding Mr. Danna’s spoliation claims. Mr. Danna filed a Motion for New Trial based on newly discovered evidence. The trial court: 1) granted Defendants’ Motion for Summary Judgment on spoliation, 2) denied Mr. Danna’s Motion for New Trial, 3) granted Mr. Danna’s request to designate the previous judgment as final, and 4) denied Defendants’ Motion for Attorneys’ Fees. Mr. Danna’s appeal followed.

Mr. Danna contends that the trial court erred by: 1) denying his Motion for 1 ¿Summary Judgment, 2) granting Defendants’ Motion for Summary Judgment on breach of contract claims, 3) granting Defendants’ Motion for Summary Judgment on defamation claims, 4) granting Defendants’ Motion for Summary Judgment on whistleblower claims, 5) granting Defendants’ Motion for Summary Judgment on spoliation claims, and 6) denying his Motion for Adverse Presumption based on spoliation. Defendants assert the prescription of some of Mr. Danna’s claims, as well as exceptions of no cause of action in their appellee brief. However, Defendants did not answer the appeal or file a cross appeal. Therefore, these issues will not be addressed. See Eubanks v. Hoffman, 96-0629, p. 2 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 598.

STANDARD OF REVIEW

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). “After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the mover.” La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at trial on the issue”, then “the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1). The burden then shifts to the non-mover “to produce factual support sufficient to establish the existence of a genuine issue of | (¡material fact or that the mover is not entitled to judgment as a matter of law.” La. C.C.P. art. 966(D)(1).

“Summary judgments are reviewed on appeal de novo.” Walker v. Kroop, 96-0618, p. 1 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 582. Appellate courts ask the same questions as the trial court: 1) “whether there is any genuine issue of material fact” and 2) “whether the mover-appellant is entitled to judgment as a matter of law.” Walker, 96-0618, p. 2, 678 So.2d at 582.

“Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be viewed in the light most favorable to the party opposing the motion,” Jeffers v. Thorpe, 95-1731, p. 3 (La.App. 4 Cir. 1/19/96), 673 So.2d 202, 204. The merits of the issues should not be addressed on summary judgment, and conflicting evidence should not be weighed. Jeffers, 95-1731, p. 4, 673 So.2d at 205. Additionally, “a trial judge cannot make credibility determinations on a motion for summary judgment.” M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov’t, 15-0860, p. 11 (La.App. 4 Cir. 12/2/15), 182 So.3d 312, 320.

“When faced with a supported motion for summary judgment, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial.” Huber v. Liberty Mut. Ins. Co., 00-0679, pp. 5-6 (La.App. 4 Cir. 2/7/01), 780 So.2d 551, 554. “A fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.” Id.

BREACH OF CONTRACT

Mr. Danna asserts that the trial court erred by denying his Motion for Summary Judgment regarding a breach of contract and by granting Defendants’ Motion for Summary Judgment based on the same . allegations. Mr. Danna contends that the employment agreement he signed in 2000 was an enforceable contract, which connotes how he should have been disciplined. The trial court found that “when [Mr. Danna] was promoted to Director of Engineering, he became part of the Guidance Team and signed a new employment offer.” However, there is no signed new employment offer in the record.

“The employer-employee relationship is a contractual relationship.” Quebedeaux v. Dow Chem. Co., 01-2297, p. 4 (La.6/21/02), 820 So.2d 542, 545. Accordingly, “an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy.” Id., 01-2297, pp. 4-5, 820 So.2d at 545. “Aside from the federal and state statutory exceptions, there are no ‘[b]road policy considerations creating exceptions to employment at will and affecting relations between employer and employee.’ ” Quebedeaux, 01-2297, pp. 5-6 (La.6/21/02), 820 So.2d 542, 546, quoting Gil v. Metal Service Corp., 412 So.2d 706, 708 (La.App. 4th Cir.1982). However, Louisiana is an at-will employment state. Quebedeaux, 01-2297, p. 5, 820 So.2d at 545. The default employment status in Louisiana is that “[a] man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing,” and that “[t]he servant is also free to depart without assigning any cause.” La. C.C. art. 2747. This Court found “that ^employment at will may be altered by contract, but not by internal policies, procedures, and manuals.” Mix v. Univ. of New Orleans, 609 So.2d 958, 963 (La.App. 4th Cir.1992).

“A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La. C.C. art. 1906. “Four elements are required for confection of a valid contract: (1) the capacity to contract; (2) mutual consent; (3) a certain object; and (4) lawful cause.” Fairbanks v. Tulane Univ., 98-1228, p. 4 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 986. “The burden of proof in an action for breach of contract is on the party claiming rights under the contract.” Rebouche v. Harvey, 00-2327, p. 3 (La. App. 4 Cir. 12/19/01), 805 So.2d 332, 334. “The existence of the contract and its terms must be proved by a preponderance of the evidence.” Id. In order for Defendants to prevail, they need to prove that Mr. Danna was an at-will employee. Bell v. Touro Infirmary, Inc., 00-0824, p. 5 (La.App. 4 Cir. 3/21/01), 785 So.2d 926, 929.

The 2000 employee agreement states that after sixty days of orientation, the Ritz-Carlton gave him “the rights and benefits in this Employee Agreement.” Under a section titled, “My Rights,” the following are listed as some of Mr. Danna’s rights while working for Ritz-Carlton: 1) “[t]he right to speak my mind in a professional manner,” 2) “[t]he right to resolve problems without the fear of reprisal,” 3) “[t]he right to be free from discrimination,” 4) “[t]he right to be free from harassment,” 5) “[t]he right to The Ritz-Carlton, New Orleans Fair Discipline Pact,” and 6) “[t]he right to The Ritz-Carlton, New Orleans Open Appeal & Issue Resolution Process.” The Fair Discipline Pact provides that “[t]he disciplinary process will be fair and consistent.” The Pact further states that Mr. Danna should be “terminated only for cause and subject to any rights under the Open Appeal and 19Issue Resolution Process.”

Applying the discussed standards, we find that the trial court erred by granting Defendants’ Motion for Summary Judgment regarding Mr. Danna’s allegations of breach of contract. Defendants presented evidence that Louisiana is an at-will employment state. However, Mr. Danna then presented the 2000 employee agreement. While the 2000 employee agreement does not state a definite term of employment for Mr. Danna, the agreement contains rights granted to Mr. Danna as a result of his employment.

“The existence or non-existence of a contract is a question of fact.” Read v. Willwoods Cmty., 14-1475, p. 6 (La.3/17/15), 165 So.3d 883, 888. Our review of the record reveals that there is a question of whether Mr. Danna had a contract with Ritz-Carlton based on the 2000 employee agreement. Thus, genuine issues of material fact exist as to Mr. Dan-na’s breach of contract claims. If the fact-finder determines that a contract exists, then the merits of Mr. Danna’s claims regarding the breach of that contract must be examined. Accordingly, we find that the trial court erroneously granted Defendants’ Motion for Summary Judgment regarding Mr. Danna’s breach of contract claims. We reverse and remand for further proceedings consistent with this opinion.

DEFAMATION

Mr. Danna further contends that the trial court erred by granting Defendants’ Motion for Summary Judgment regarding his defamation claims. Mr. Danna avers that the “defamation claims arise out of the unfounded allegations contained in each disciplinary action and the statements made regarding those allegations.” The trial court granted Defendants’ Motion for Summary Judgment, finding “that the second element needed for a defamation claim has not been met because there is |inno evidence that these statements were published outside of the chain of command of the hotel’s corporate structure or outside of’ hotel duties or as someone “expressing his opinion.” Mr. Danna counters that the defamatory statements were not covered by a qualified privilege because they were not made in good faith.

“Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name.” Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139. “The elements of an action for defamation are: (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury.” Brunet v. Fullmer, 00-0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. “If even one of these elements is lacking, the cause of action fails.” Id., 00-0644, p. 4, 777 So.2d at 1241. “Words that impute to an individual the commission of a crime are defamatory per se; malice and falsity are presumed and the burden shifts to the defendant to rebut the presumption.” Kelly v. W. Cash & Carry Bldg. Materials Store, 99-0102 (La.App. 4 Cir. 10/20/99), 746 So.2d 743, 762. “Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed.” Thompson v. Bank One of Louisiana, NA, 13-1058, p. 14 (La.App. 4 Cir. 2/26/14), 134 So.3d 653, 663. “A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act.” Id. “Publication can be established by either direct or circumstantial evidence.” Id.

Mr. Danna contends that Mr. Miller’s “false” disciplinary reports, suspension notification, termination notification, and a post-termination conversation with an employer at the Hotel Intercontinental where Mr. Danna applied for a job constitute defamation. Mr. Danna further avers that Mr. Curry defamed him in the discipline reports, the suspension notification, the termination Innotification and in statements made to other employees at Ritz-Carlton that “it wouldn’t be long now,” that “they need to separate themselves” from Mr. Danna, and that he “was a problem.” Mr. Danna also cites to being blamed for the carbon monoxide release. With the exception of Mr. Miller stating that he could not vouch for Mr. Danna’s past work performance, the statements are defamatory per se because each statement questions not only Mr. Danna’s abilities as the Director of Engineering, but also his general character. The “statements would have the tendency to diminish the reputation” of Mr. Danna. Doe v. Grant, 01-0175, p. 8 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 416. Accordingly, Mr. Danna was then required to present evidence that he would be able to meet the burden of proving publication at a trial on the merits.

Defendants assert that any communication regarding Mr. Danna was in the scope of his employment and within the chain of command at the Ritz-Carlton. Intra-corporate statements are not considered published to satisfy the publication requirement of defamation. Brunet, 00-0644, p. 5 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1242. “ ‘[Statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons so as to constitute a publication.’ ” Doe, 01-0175, p. 8, 839 So.2d at 416, quoting Bell v. Rogers, 29,757, p. 10 (La.App. 2 Cir. 8/20/97), 698 So.2d 749, 756.

The discussions of the allegedly disciplinary worthy actions of Mr. Danna were communications between Ritz-Carlton employees within the course and scope of their employment. The statements were contained within internal documents that Mr. Danna failed to show were published to anyone outside of the Ritz-Carlton employment hierarchy. As to Mr. Miller’s statement that he could not [ 12“vouch” for Mr. Danna, the statement in and of itself is not defamatory, and was Mr. Miller’s opinion as the General Manager of the Ritz-Carlton. Accordingly, we do not find that Mr. Danna produced evidence sufficient to demonstrate that genuine issues of material fact exist about whether the statements were published to a third party outside of the Ritz-Carlton. Accordingly, Mr. Danna cannot meet his burden of proof at trial regarding his defamation claims, because the element of publication is not present. As such, we find that the trial court correctly granted Defendants’ Motion for Summary Judgment regarding Mr. Dan-na’s defamation claims, and affirm. Having found that Mr. Danna’s defamations claims fail, we pretermit discussion of his assertion that the statements were not entitled to a privilege. See Doe, 01-0175, p. 9, 839 So.2d at 416.

WHISTLEBLOWER

Mr. Danna also asserts that the trial court erred by granting Defendants’ Motion for Summary Judgment on his whistleblower claims.

“The Louisiana Whistleblower Statute provides protection to an employee against reprisal from the employer for reporting or refusing to participate in illegal work practices.” Beard v. Seacoast Elec., Inc., 06-1244, p. 3 (La.App. 4 Cir. 1/24/07), 951 So.2d 1168, 1170. See also La. R.S. 23:967. At a trial on the merits, Mr. Dan-na would be required to establish that: 1) he disclosed or threatened to disclose a workplace act or practice that is in violation of state law, 2) he objected to or refused to participate in an employment act or practice that is in violation of law, and 3) that he was fired as a result. La. R.S. 23:967; Hale v. Touro Infirmary, 04-0003, p. 10 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210, 1216. Since the procedural posture before us is on a motion for summary judgment, Mr. Danna’s failure to put forth evidence ... of these elements must result in a | ^summary judgment in favor of Ritz-Carlton. Id.

The trial court stated:

Given these facts, the court holds that plaintiffs whistleblower claim fails in that plaintiff has not met the first prong needed to establish a claim, i.e. that he disclosed or threatened to disclose a workplace practice that was in violation of state law. [See Hale v. Touro Infirmary, 886 So.2d 1210, 1216 (La.App. 4 Cir.2004), writs denied, 2005-0103 ( [La].03/24/05), 896 So.2d 1036.] Plaintiff does not assert that he reported the alleged crime to state authorities or that he even threatened to report the alleged crime to state authorities. Instead, he asserts that Mr. Miller’s action [sic] were in violation of the hotel’s policies and that he notified individuals at corporate of the alleged crime. However, Mr. Farris had given Mr. Miller permission to use the furniture. Therefore, plaintiff cannot establish a claim under the whis-tleblower statute and the court grants defendants’ Motion for Summary Judgment as to this claim.

We disagree with the trial court.

Firstly, it is undisputed that Mr. Miller took furniture from Ritz-Carlton to use at his newly rented house in New Orleans. Mr. Danna advised him that it was not a “good idea.” Mr. Danna stated that he told Mr. Miller he would not take the furniture, and that no previous general managers ever borrowed furniture. Mr. Danna testified that Mr. Miller told him to “keep it quiet.” Defendants represent that Mr. Farris, a representative of the owner, gave Mr. Miller permission to borrow the furniture. However, Mr. Danna presented evidence that Mr. Farris did not give Mr. Miller permission, and that Mr. Farris was not entitled to give permission. It is undisputed that Mr. Miller returned the furniture because his supervisor told him to once the investigation into the matter began. The trial court’s decision to believe Mr. Farris was a credibility determination that is improper on a motion for summary judgment. Accordingly, whether Mr. Miller had permission to take the furniture presents a genuine issue of material fact. If 1 uMr. Miller took the furniture without permission, this taking could constitute theft or unauthorized use of a movable. See La. R.S. 14:67 and 14:68. A factfinder would determine if a violation of state law occurred.

Secondly, and at the crux of the trial court’s holding, Mr. Danna asserts that he reported Mr. Miller for taking the furniture to the corporate human resources executive approximately two months after Mr. Miller took the furniture. The trial court held that Mr. Danna had to report or threaten to report Mr. Miller’s actions to “state authorities.” However, jurisprudence does not require that the activity be reported to state authorities. See Hale, 04-0003, p. 8, 886 So.2d at 1215; Fondren v. Greater New Orleans Expressway Comm’n, 03-1383 (La.App. 5 Cir. 4/27/04), 871 So.2d 688, 691. The decision of whether to believe Mr. Danna’s account requires another credibility determination of Mr. Danna’s testimony and that of the corporate human resources executive.

Lastly, as to whether Mr. Danna was fired for reporting Mr. Miller, there is no question that Mr. Danna was fired. Mr. Danna contends that he was fired in retaliation for reporting Mr. Miller’s taking of furniture. Mr. Miller testified that Mr. Danna reporting the taking offended and angered him. The record also reveals that Mr. Miller’s disciplinary reports of Mr. Danna, as director of engineering, did not begin until the furniture incident occurred. Further, Mr. Miller fired Mr. Danna prior to receiving or reviewing the report on the carbon monoxide leak generated by Duncan Boiler. Mr. Miller’s intent when firing Mr. Danna is a genuine issue of material fact that is not suitable for resolution on a motion for summary judgment.

As we have found that genuine issues of material fact exist as to the elements of a whistleblower claim because of credibility determinations reserved for the factfinder, the tidal court erroneously made credibility determinations 1^weighing the conflicting testimony and granted Defendants’ Motion for Summary Judgment. We reverse and remand for further proceedings consistent with this opinion.

SPOLIATION & ADVERSE PRESUMPTION

Mr. Danna avers that the trial court erred by granting Defendants’ Motion for Summary Judgment on spoliation and erred by denying his Motion for Adverse Presumption. Mr. Danna represents that the trial court “impermissibly weighed conflicting evidence, shifted burdens, considered inadmissible evidence, and made credibility assessments, which resulted in an impermissible finding that a jury would be unable to determine that defendants destroyed evidence relevant to Danna’s claims.” Defendants assert that the destroyed e-mail data was destroyed pursuant to a company policy utilized to manage the size of electronic records. The trial court ruled that destroyed evidence would not have been relevant.

“Recognizing a claim in tort for spoliation of evidence presents a relatively new concept in Louisiana jurisprudence and has been the subject of recent consideration in our courts.” Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 927. “The theory of ‘spoliation of evidence’ refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use.” Id. “This gives rise to an adverse presumption that had the evidence been produced, it would have been unfavorable to the litigant.” Grantham v. Eldorado Resort Casino Shreveport, 49,474, p. 3 (La. App. 2 Cir. 11/19/14), 152 So.3d 1028, 1030-31.

“A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence.” Quinn, 03-0903, p. 5, 869 So.2d at 927. “Allegations of negligent conduct are insufficient.” Id. [ 1(i“Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was disr carded, the theory of spoliation of evidence does not apply.” Id. “The tort of spoliation of evidence” is rooted “in the eviden-tiary doctrine of ‘adverse presumption’, which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained.” Id.

Defendants were placed on notice that litigation was likely on May 7, 2010, when counsel for Mr. Danna sent a demand letter outlining the claims and some of the interested parties. Defendants became aware of the Petition for Damages on January 31, 2011, when the petition was filed. However, Defendants stated that Mr. Curry’s “email data was not made the subject of a litigation hold until October 2013 due to oversight and inadvertence.” In addition to Mr. Curry’s e-mail data, Mr. Miller testified that he deleted e-mails relating to Mr. Danna.

Central to this issue is whether Defendants intentionally destroyed the e-mail data. “A motion for summary judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts, e.g., motive, intent, good faith, and knowledge.” Osborne v. Vulcan Foundry, Inc., 95-2766, p. 6 (La.App. 4 Cir. 5/29/96), 675 So.2d 837, 841. The granting of Defendants’ Motion for Summary Judgment on spoliation could not have occurred but for a credibility determination to establish a finding that 'intent was not present. This type of determination is inappropriate on a motion for summary judgment. 'We find that genuine issues of material fact exist as it relates to the intentional element of spoliation that must be determined by the factfinder. Therefore, we find that the trial court erroneously granted Defendants’ Motion for Summary Judgment on |17spoliation. We reverse and remand for further' proceedings consistent with this opinion,

Mr. Danna contends that the trial court erred by denying his request for an adverse presumption based on spoliation. We agree. The adverse presumption is not applicable if it is determined that the destruction of the evidence is adequately explained. Hence, a ruling on the applicability of the adverse presumption is premature at this juncture. We reverse the judgment of the trial court denying Mr. Danna’s request for adverse presumption and remand for further proceedings consistent with this opinion.

DECREE

For the above-mentioned reasons, we find that genuine issues of material fact exist precluding the grant of Defendants’ Motions for Summary Judgment regarding Mr. Danna’s breach of contract claims, whistleblower claims, and spoliation claims. The trial court erroneously weighed the evidence and credibility of witnesses. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

We find that the trial court did not err by granting Defendants’ Motion for Summary Judgment on Mr. Danna’s defamation claims because once Defendants presented evidence that none of the statements were published outside of the Ritz-Carlton chain of command, Mr. Danna failed to present evidence to the contrary. Therefore, we affirm. Lastly, because Mr. Danna’s request for an adverse presumption rests upon whether Defendants intentionally destroyed evidence, we reverse and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

BELSOME, J., dissents in part with reasons.

JENKINS, J., concurs in the results.

BELSOME, J.,

dissents in part with reasons.

hi partially dissent from the majority’s opinion as it relates to the plaintiffs claims under the Louisiana Whistleblower Statute.

It is well established that La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, they are not required to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. If the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, the movant is entitled to judgment as a matter of law. The adverse party cannot rest on mere allegations when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

12Whether a fact is “material” for summary judgment purposes can only be determined based on the governing substantive law. The governing substantive law in this case is the Louisiana Whistleblower Statute. Under the statute, the plaintiff must prove an actual violation of a state law, not just a good faith belief that a law was broken. In this case, Walter Farris, the Ritz-Carlton’s asset manager testified in his deposition that Russell Miller had authorization to remove the furniture from storage and use it at his home.

The issue of credibility is not before the court on a motion for summary judgment. So in the absence of competent evidence that directly contradicts the sworn statements that permission was given to Mr. Miller to use the furniture, those statements must be taken as true. Therefore, as the trial court found, Mr. Danna will not be able to establish that a state law was violated which is fatal to his whistleblower claim.

For these reasons I disagree with the majority’s reversal of the trial court’s dismissal of Deon Danna’s claims under the Louisiana Whistleblower Statute. In all other respects I concur.

JENKINS, J., concurs in the results.

Opinion on Rehearing

The appellees filed an Application for Rehearing contending that the Court failed to properly consider their arguments on appeal and that the Court failed to follow Tomlinson v. Landmark Am. Ins. Co., 15-0276 (La.App. 4 Cir. 3/23/16), 192 So.3d 153. The rehearing is denied. Additionally, the Motion to Supplement the record is denied.

      . The annex stored old and/or extra furnish-tags.

      . Sullivan v. Malta Park, 14-0823, p. 8 (La. App. 4 Cir. 12/10/14), 156 So.3d 1200, 1205-06.

      . Id.

      . Id.

      . Citron v. Gentilly Carnival Club, Inc. 14-1096, p. 13 (La.App. 4 Cir. 4/15/15), 165 So.3d 304, 313.

      . La. R.S. 23:967 reads in pertinent part:
      A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
      (!) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
      (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
      (3) Objects to or refuses to participate in an employment act or practice that is in violation of law.

        . Ross v. Oceans Behavioral Hosp. of Greater New Orleans, 14-368 (La.App. 5 Cir. 11/25/14), 165 So.3d 176; Mabry v. Andrus, 45, 135 (La.App. 2 Cir. 4/14/10), 34 So.3d 1075; see also, Hale v. Touro Infirmary, 04-0003 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210.

      . Mr. Farris’ representations were further supported by several other company executives.


author: COLEMAN, JUSTICE, KING, JUSTICE,

text:
    Kelvin JORDAN a/k/a Kelvin L. Jordan v. STATE of Mississippi
    NO. 2015-DR-01082-SCT
    Supreme Court of Mississippi.
    12/08/2016
    Rehearing Denied March 9, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL, BY: LOUWLYNN VANZETTA WILLIAMS, DELLWYN K. SMITH
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD ALAN SMITH
   COLEMAN, JUSTICE,

FOR THE COURT:

¶1. A jury convicted Kelvin Jordan of two counts of capital murder in 1996 and determined that he should be sentenced to death for both killings. The Court affirmed the convictions and sentences. Jordan v. State, 728 So.2d 1088 (1999) (Jordan I). Jordan sought post-conviction relief (PCR), and we denied his petition. Jordan v. State, 918 So.2d 636 (Miss. 2005) (Jordan II). He now has filed a successive petition for post-conviction relief in which he argues that his previous attorneys were constitutionally ineffective, that the death sentence is disproportionate, and that the trial judge erred in evidentiary decisions at trial. We hold that all of Jordan’s claims except his claim of ineffective post-conviction relief counsel are barred as untimely, as successive, by res judicata, or a combination of all three. His claim of ineffective assistance of post-conviction relief counsel may not proceed because attorneys are not permitted to raise claims of their own ineffectiveness.

FACTUAL AND PROCEDURAL BACKGROUND

¶2. The facts of the case are set out in Jordan I and Jordan II. Kelvin Jordan and his cousin Frontrell Edwards wanted to go to a football game, but they needed money. They decided to find someone to rob. They realized that they were known in the small town of Pachuta, so they discussed killing the victim in order prevent any identification. Each armed himself with a handgun. They found Tony Roberts at a truck stop and asked him for a ride. Roberts had his two-year-old son Codera Bradley with him in the car. Roberts agreed to give Jordan and Edwards a ride. When Roberts stopped his vehicle on the side of the highway to let them out, Edwards shot Roberts in the face. Roberts got out of the car and Edwards and Jordan both fired their handguns at him again. One of them inflicted a fatal wound to the back of the victim’s head, although it is not known who fired the mortal shot. In any event, Jordan admitted that he shot at Roberts. In separate statements he claimed that he shot at Roberts with his own gun and also with Roberts’s pistol.

113. Jordan helped put the body into the back of the vehicle. He and Edwards drove a short distance down the road and then dragged the body into the woods away from the highway. The two then took the child into the woods and murdered him next to his father, execution style, with a shot to the back of the head. Jordan and Edwards left in Roberts’s car. They later stole the ear’s radio and speakers, Roberts’s .380 caliber pistol, and other items from the vehicle. They took the car to a dirt pit where they set it on Sre.

¶4. Based on an anonymous phone calls and other tips, officers eventually questioned Jordan and Edwards. Jordan gave several incriminating statements to law enforcement officers. He admitted that he and Edwards had discussed robbing and killing someone. He admitted that he had a .25 caliber pistol with him when he and Edwards confronted Roberts. He also admitted that he had fired two shots at Roberts, but he denied knowing whether his shots struck Roberts. He also confessed that he and Edwards had stolen the car and other items that belonged to Roberts. Jordan showed law enforcement officers where the shooting occurred and he took them to the bodies. He also helped them recover the guns.

¶5. Edwards also gave statements to police. He claimed that he and Jordan both had shot Roberts but that Jordan alone had killed the child.

¶6. In the sentencing phase, the jury found that Jordan had attempted to kill Roberts, that he had intended that both killings take place, and that he had contemplated that lethal force would be used. The jury then found that the aggravating factors outweighed the evidence in mitigation and that Jordan should suffer death on both capital murder counts.

PROCEDURAL BARS

¶7. The mandate in Jordan’s direct appeal issued in 1999. He filed this petition in July 2015. The petition is subject to the one-year time bar. Miss. Code Ann. § 99-39—5(2)(b) (Rev. 2015). See also Havard v. State, 86 So.3d 896, 899 (Miss. 2012). Failing to file a post-conviction claim within the time period amounts to a waiver of relief unless the claim presented meets an exception to the time bar. M.R.A.P. 22(c)(5)(i). Unless Jordan can show that his claims are excepted, the petition is barred. A successive petition for post-conviction relief likewise is barred. Miss. Code Ann. § 99-39-27(9) (Rev. 2015); see also Rowland v. State, 42 So.3d 503, 507 (Miss. 2010). We denied Jordan’s first petition. Jordan II, 918 So.2d 636.

¶8. Finally, certain issues raised in the petition have been raised in prior proceedings. “Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata. The Petitioner carries the burden of demonstrating that his claim is not procedurally barred.” Howard v. State, 945 So.2d 326, 353 (Miss. 2006) (quoting Jackson v. State, 860 So.2d 653, 660-61 (Miss. 2003); Lockett v. State, 614 So.2d 888, 893 (Miss. 1992)). In Grayson v. State, 118 So.3d 118 (Miss. 2013), the Court held that the petitioner’s second attempt to argue that trial counsel had been ineffective in presenting in the sentencing phase “has been considered and rejected and, therefore, his claims are barred by the doctrine of res judicata.” Id. at 141. In Brawner v. State, 166 So.3d 22, 23 (Miss. 2012), the Court declined to revisit claims that previously had been addressed. The Court held that “these claims have been substantially reviewed in prior proceedings and are now proeedurally barred and barred by the doctrine of res judicata.”

I. Ineffectiveness of Trial Counsel

¶9. In Jordan II, as quoted above, this Court found that Jordan’s trial court attorneys’ representation at the sentencing phase was constitutionally sufficient. Jordan now seeks to relitigate that claim. He argues that:

Had trial counsel performed them duties in accordance with prevailing standards, by contacting witnesses available and willing to testify, obtaining readily available social and medical history records, and having Kelvin properly evaluated by appropriate experts, the jury would have learned that Kelvin Jordan’s development and journey up to his eighteenth birthday occurred in the context of 1) severe and pervasive organic brain damage that began during Kelvin’s infancy; 2) extremely low intelligence and low intellectual functioning; and 3) severe post-traumatic stress disorder (“PTSD”)....

The claim that trial counsel were ineffective (the first indirect claim) is barred by res judicata. This exact issue was raised in the first petition. It was considered by the Court and rejected. Ineffective assistance of counsel claims in capital cases are subject to the procedural bars. See Grayson v. State, 118 So.3d 118 (Miss. 2013).

¶10. We conclude that the claim as to the trial attorneys’ deficiencies is barred. First, as noted previously, this exact issue has been asked and answered in Jordan II. It is barred by res judicata and as successive. Second, the trial attorneys completed their representation of Jordan in early 1999, Any claim against them could and should have been brought well before now.

II. Ineffectiveness of Post-Conviction Relief Counsel

¶11. Jordan’s claim that his post-conviction relief counsel rendered constitutionally ineffective assistance may not proceed with his current counsel because he cannot claim the attorney who represents him in the current petition was ineffective when the same attorney represented him during the proceedings in question. On February 20, 2003, Louwlynn Williams, who also represents Jordan in the successive petition now pending before the Court, filed an entry of appearance as one of Jordan’s attorneys during his first post-conviction proceedings.

¶12. Williams now comes before the Court arguing her own ineffectiveness, but she may not do so. “[A] self-ineffectiveness claim is absolutely inappropriate and must not be permitted.” Archer v. State, 986 So.2d 951, 956 (¶ 20) (Miss. 2008). It does not matter that Williams now seeks to argue her involvement in the initial proceedings was limited. The Archer Court held that the lead attorney’s performance is imputed to all attorneys involved in the case. Id. at 956-57 (¶ 22) (“[H]is participation in the appellant’s defense at trial regardless of his role, by imputation, ascribes any potential claim of deficient and prejudicial trial performance unto himself as well, and consequently constitutes a self-ineffectiveness claim.”)

III. The Claim that the Death Sentence is Disproportionate

¶13. The Court has determined on two prior occasions that Jordan’s death sentence is not disproportionate. The claim is now barred by res judicata. The mandate in Jordan’s direct appeal issued in March of 1999. Frontrell Edwards pleaded guilty in January 2000. Jordan’s final amended petition for post-conviction relief was filed in March 2004. To the extent that there are new issues here, there is no conceivable reason that these claims could not have been brought well before now.

¶14. Jordan raised the proportionality of his sentence in the direct appeal (Jordan I) and in the initial post-conviction relief action (Jordan II). The Court rejected both challenges. Any question as to the proportionality of the sentences has been asked and answered and now is barred by res judicata. Bishop v. State, 882 So.2d 135, 153 (Miss. 2004); see also Miss. Code Ann. § 99-29-21(3) (Rev. 2015).

IV. The Claimed Error Involving Evi-dentiary Rulings

¶15. Jordan’s claim dealing with certain evidentiary rulings at trial already has been addressed and is precluded. The State argues that these claims are time barred and successive-writ barred. Further, these claims have been addressed and rejected by this Court. They were raised in the initial PCR. In those proceedings, this Court found that these issues were barred for failure to raise them in the direct appeal and also that they were without merit, Jordan II, 918 So.2d at 657. We agree that the claims remain barred.

CONCLUSION

¶16. For the reasons given above, we deny Jordan’s petition.

¶17. LEAVE TO FILE SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF DENIED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, MAXWELL AND BEAM, JJ., CONCUR. KING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. RANDOLPH, P.J., NOT PARTICIPATING.

KING, JUSTICE,

SPECIALLY CONCURRING:

¶18.1 agree with the majority’s decision to deny Jordan permission to proceed on the present petition for post-conviction relief. However, I write separately to clarify that, unlike the majority, I do not believe that Jordan’s claim as to the ineffective assistance of post-conviction counsel fails. This Court consistently has declined to consider the issue of ineffective assistance of counsel where the claim is raised by the attorney alleged to have been ineffective. Thus, this Court merely has declined to consider such a claim under these circumstances. Where the Court simply has declined to consider an issue presently, it cannot truthfully be said that the issue fails.

¶19.1 write to clarify that Jordan’s claim as to the ineffectiveness of post-conviction-relief counsel would be proper for consideration if presented by an attorney other than the attorney alleged to have been ineffective.

KITCHENS, J., JOINS THIS OPINION.