author:
PICKETT, Judge.
      AMY, J., SAUNDERS, J.

text:
    Carl Joseph BENOIT and Patricia Faye Benoit v. ST. CHARLES GAMING COMPANY, INC.
    17-101
    Court of Appeal of Louisiana, Third Circuit.
    11/08/2017

      David L. Bateman, Bateman Law Firm, 6010 Perkins Road, Ste A, Baton Rouge, LA 70808, (225) 766-8484, COUNSEL FOR PLAINTIFFS-APPELLEES: Carl Joseph Benoit, Patricia Faye Benoit
    Brian D. Wallace, Bruce V. Schewe, Evans Martin McLeod, Meredith W. Blanque, Phelps, Dunbar, LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, (504) 566-1311, COUNSEL FOR DEFENDANT-APPELLANT: St. Charles Gaming Company, Inc. d/b/a Isle of Capri Casino—Lake Charles
    Court composed of John D. Saunders, Marc T. Amy, Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.
   PICKETT, Judge.

hThe defendant owner of a riverboat casino appeals the trial court’s denial of its motion for summary judgment and grant of summary judgment in favor of the plaintiff that its casino is a vessel and that the plaintiff is a Jones Act seaman. For the following reasons, we reverse the trial court’s judgment and grant judgment in favor of the defendant.

FACTS

Carl Benoit went to work as a deckhand for St. Charles Gaming Co., Inc. d/b/a Isle of Capri Casino—Lake Charles in 1995 on the Grand Palais Casino (the Grand Pa-lais), a riverboat casino, moored in Lake Charles. He was injured in August 2013 when a coworker fell from a ladder onto him and began receiving Louisiana workers’ compensation benefits. Mr. Benoit and his wife sued St. Charles, alleging that the Grand Palais is a vessel under general maritime law, 1 U.S.C. § 3; that he is a seaman and member of the Grand Palais’s crew under the Jones Act, 46 U.S.C. § 30104 et seq; that the Grand Palais was unseaworthy under general maritime law; and that St. Charles owes him maintenance and cure, attorney fees, and damages, as result of the injuries he suffered in his fall.

The Grand Palais was built as a riverboat casino in conformity with the requirements of Louisiana law which authorize gaming activities to be conducted on riverboat casinos that sail on designated waterways. La.R.S. 27:41-113, formerly La.R.S. 4:501-562. In 2001, St. Charles moored the Grand Palais at its current location in Westlake by nylon mooring lines and steel wire cables, pursuant to La.R.S. 27:65(B)(l)(c) which allows riverboat casinos to conduct gaming activities while docked if the owner obtained the required license.

The Grand Palais has not moved since March 24, 2001. Necessary services for the Grand Palais’ operation as a casino are provided via shore-side utility lines, 12which supply electricity, water, telephone service, sewage, cable television, and internet services that have not been disconnected since 2001. Additionally, the casino computer systems, including the slot machines, for the Grand Palais’ gaming activities are now located on land. Guests enter the Grand Palais from shore via a steel structure incorporated into the interior of the land-based Isle of Capri Pavilion.

St. Charles filed a motion for summary judgment, seeking dismissal of the Be-noits’ claims against it on the basis that the Grand Palais is not a vessel under general maritime law; therefore, Mr. Be-noit is not a seaman. The Benoits filed a cross motion for summary judgment on the same issues, asserting that the Grand Palais is a vessel and that Mr. Benoit is a seaman.

After a hearing, the trial court granted summary judgment in favor of the Benoits, finding that the Grand Palais is a vessel as defined by general maritime law and that Mr. Benoit is, therefore, a Jones Act seaman. St. Charles appealed.

ASSIGNMENTS OF ERROR

St. Charles assigns the following errors with the trial court’s judgment:

1. The [trial] court erred in ruling that on August 28, 2013[,] the Grand Pa-lais Casino was a vessel within the meaning of the general maritime law.
2. The [trial] court erred in holding that, because it ruled that the Grand Palais Casino was a vessel on August 28, 2013, Mr. Benoit was, therefore, necessarily a seaman under the Jones Act.

DISCUSSION

Standard of Review

Appellate courts review summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839. In order to prevail on a motion for summary judgment, |Rthe moving party must show that there are no genuine issues of material fact and that he “is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3); Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547. “A fact is ‘material’ when its -existence or nonexistence may be essential to [the] plaintiffs cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. “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.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The' trial court is required to render summary judgment “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.Code Civ.P. art. 966(A)(3).

Vessel and Seaman Status

Whether a riverboat casino is a vessel under general maritime law, l U.S.C. § 3, has been addressed by this court. See, e.g., Lemelle v. St. Charles Gaming Co., Inc., 11-255 (La.App. 3 Cir. 1/4/12), 118 So.3d 1, writ denied, 12-339 (La. 4/27/12), 86 So.3d 627, cert. granted, judgment vacated, 568 U.S. 1141, 133 S.Ct. 979, 184 L.Ed.2d 759 (2013); Breaux v. St. Charles Gaming Co., Inc., 10-1349 (La.App. 3 Cir. 6/22/11), 68 So.3d 684, writ denied, 11-1661 (La. 10/7/11), 71 So.3d 322. The panels in Lemelle and Breaux relied in part upon the U.S. Fifth Circuit Court of Appeal’s decision in De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir. 2006), to conclude, under essentially identical facts, that riverboat casinos like the Grand Palais are not vessels. In fact, the same riverboat casino, the M/V Crown, was at issue in Lemelle, Breaux, and De La Rosa. Lemelle, 118 So.3d 1. In these cases, the courts considered the physical characteristics and behavior of the casinos, including being moored to the land by mooring lines and steel wire cables with services necessary for the casinos’ operations being provided by land-based sources, not having sailed since 2001, and not engaging in any maritime activity since 2001 to conclude that the Crown 'is not a vessel.

. In Lemelle, our supreme court denied the plaintiffs application for writs of cer-tiorari, and' he applied for writs of certiora-ri .to the United States Supreme Court. The Supreme Court granted the plaintiffs application and vacated and remanded the case to this court “for further .consideration in light of’ its decision in Lozman v. City of Riviera Beach, Fla., 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013). Lemelle, 568 U.S. 1141, 133 S.Ct. 979. Before this court could reconsider the matter, the parties had the matter dismissed because it had been settled through mediation.

Lozman presented the issue of whether a sixty foot by twelve foot floating home that was kept afloat by an empty bilge was a “vessel” as defined by 1 U.S.C. § 3. Section 3 defines a “vessel” to include “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” In explaining its view of § 3, the Supreme Court in Lozman referenced certain phrases it used in Stewart v. Dutra Construction Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932(2005), that suggest a craft like the Grand Palais is a vessel. The Court explained, however, that its use of those phrases is not an | ^implication of “a universal set of sufficient conditions for application of the definition” of vessel, rather, the phrases “say, and they mean, that the statutory definition may (or may not) apply—not that it automatically must apply—where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached— but not permanently attached—to land.” Lozman, 568 U.S. at 124, 133 S.Ct. at 742.

The Supreme Court also determined that subjective' criteria, such as an owner’s intent, should not be considered but that “all criteria based on ‘purpose’ ” should be considered, explaining:

Indeed, it is difficult, if not impossible, to determine the use of a human “contrivance” without some consideration of human purposes. At the same time, we have sought to avoid subjective elements, such as owner’s intent, by permitting consideration only of objective evidence of a waterborne transportation purpose. That is why we have referred to the views of a reasonable observer. And it is why we have looked to the physical attributes and behavior of the structure, as objective manifestations of any relevant purpose, and not to the subjective intent of the owner.

Lozman, 568 U.S. at 128, 133 S.Ct. at 744-45 (citations omitted).

The Benoits counter St. Charles’ assertions, arguing that the following factors establish that the. Grand' Palais,.is a vessel:

1. The Grand Palais employs two captains and deckhands to maintain the operation of the Grand Palais twenty-four hours a day;
2. The engines/thrusters are maintained in operating condition;
3.' The Z-drives are maintained in operating condition and used to maintain the Grand Palais in its moored position when large rock ships navigate the ship channel;
4. The Captains maintain contact with marine traffic navigating the Calca-sieu Ship Channel to stay abreast of channel traffic;
5. The Captains are required to have a 100 ton Masters License issued by the Coast. Guard, and individuals with experience operating vessels offshore are preferred;
1¾6. The Grand Palais is inspected by the American Board of Shipping, not the United States Coast Guard, but the inspections performed by that agency are essentially the same as the inspection performed by the Coast Guard;
7. Testimony of the Grand Palais’ crew established that the Grand Palais can be disconnected from its moorings, land-based service supply lines can be disconnected, and essentially all -the services, required for the Grand Palais to return to navigation . -can be restored although no time ■' frame for doing so was established.

We note that the Z-drives are brought to 25% capacity when necessary to maintain the Grand Palais in its moored position and, at such times, that they are operated for approximately thirty minutes.

The' Grand Palais’ primary purpose is dockside gambling. For more than sixteen years, it has not engaged in any maritime activity and has been moored at the same location with all operations required for its gaming activities operated via land-based services. It is possible the Grand Palais could be returned to service as a vessel; however, the evidence establishes that for more than sixteen years, it has been indefinitely moored to provide for and maintain its primary purpose of riverboat gaming. Thus, although the Grand Palais was originally designed to transport people over water, we find that as a result of the changes to its physical characteristics, its purpose, and its actual function over the past sixteen years, it is no longer a vessel.

In reaching this conclusion, wé are cognizant that a vessel “and its créw do not move in and out of Jones Act coverage” based on the vessel’s aetivitiés at any given moment'. Stewart, 543 U.S. 481, 125 S.Ct. 1118. The change in the' Grand Palais’ purpose and function, however, has' exceeded sixteen years. Importantly, due to these changes, Mr. Benoit has not been subjected to “the special hazards and disadvantages” the Jones Act was enacted to remedy. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 882, 90 L.Ed. 1099 (1946).

|7To qualify as a Jones Act seaman, Mr. Benoit must prove that he works on a vessel. Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Our determination that the Grand Palais is not a vessel precludes proof of this requirement.

For these reasons, we reverse judgment of the trial court and grant summary judgment in favor of St.' Charles, dismissing Mr. and Mrs. Benoits” claims against it.

DISPOSITION

The judgment of the trial court granting Summary judgment in favor of Carl and Pátricia Benoit is' reversed, and judgment dismissing the claims of Carl and Patricia Benoit is granted in favor- of St. Charles Gaming, Co„ Inc. d/b/a Isle of Carpi Casino—Lake Charles. All costs are assessed to Carl and Patricia Benoit,

REVERSED AND RENDERED.

Amy, J., concurs and assigns reasons.

Saunders, J., dissents with, written reasons. . ■ - •

AMY, J.,

concurring.

hi agree with the majority that application of the analysis required in Lozman v. City of Riviera Beach, Fla., 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013) indicates that this riverboat is not a “vessel” for purposes of 1 U.S.C. § 3. Observing that Section 3 defines a “vessel” as an “ ‘artificial contrivance ... capable of being used ... as a means of transportation on water[,]’ ” the Supreme Court explained that “a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the [structure’s] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” Id. at 121, 133 S.Ct. 735.

As explained in the majority review, this riverboat undoubtedly includes many of the physical characteristics and activities of a vessel as described in Lozman. It has a crew, the capacity of self-propulsion, and it features a steering mechanism. Yet, those physical characteristics must be viewed alongside the fact that this riverboat has not been engaged in the physical activities of transport since it became moored for operation as a dockside gaming facility in 2001. Given that obvious and consistent mooring, as well as the fact that patrons enter the riverboat from the land-based pavilion by an entranceway described by the Engineer as approximately “40-by-40,” I find that the reasonable observer would view the remaining physical characteristics as mere artifacts creating the superficial fagade of a means of transport.

For these reasons, I concur in the majority’s decision to reverse and render.

SAUNDERS, J.

DISSENTS WITH WRITTEN REASONS.

| ,The riverboat was designed for navigation. It is capable of navigation. It has been used in navigation. Frequency of navigation is simply not part of the equation. The riverboat is a vessel.

Therefore, I respectfully dissent.

      . The Supreme Court in Lozman, 568 U.S. at 124, 133 S.Ct. at 742, referenced the following statements in Stewart, 543 U.S. 481, 497, 125 S.Ct. 1118:
      "[Section] 3 'does not require that a watercraft be used primarily for that [transportation] purpose,’ 543 U.S. at 495, 125 S.Ct. 1118; that a 'watercraft need not be in motion to qualify as a vessel,' ibid.; and that a structure may qualify as a vessel even if attached—but not 'permanently' attached—-to the land or ocean floor. [Stewart, 543 U.S. at], 493-494, 125 S.Ct. 1118.”


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Joseph BARLOW v. Mark GARBER, et al.
    CA 17-401
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      David F. Rutledge, Blaine James Barril-leaux, 330 Settlers Trace Blvd., Suite B, Lafayette, LA 70508, ' (337) 406-8759, COUNSEL FOR PLAINTIFF/APPELLANT: Joseph Barlow
    Todd M. Swartzendruber, Stephen J. Oats, Oats & Marino, APLC, 100 E. Vermilion St., Suite, 400, Lafayette, LA 70501, (337) 233-1100, COUNSEL FOR DEFENDANTS/ APPELLEES: Berkley Insurance Company, Rob Reardon, as Director of Corrections of Lafayette Parish, Mark Garber, Sheriff of Lafayette Parish
    Court composed of John D, Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

|,Joseph Barlow appeals a decision of the trial court dismissing his petition for damages for injuries-based on an exception of prematurity and an exception of prescription and abandonment filed by the Defendants. For the following reasons, we affirm the judgment of the trial court.

FACTS

Mr. Barlow was incarcerated at the Lafayette' Parish Correctional Facility- when he claims he slipped and fell in a puddle of water while performing kitchen duties on two separate occasions in July and August 2015. Mr. Barlow contends that the puddles on the floor resulted from water flowing from an open pipe below the Sink into a bucket that overflowed onto the floor. As a result of the falls, Mr. Barlow alleges that he suffered injuries-to his neck and back.

On July 22, 2016, Mr. Barlow filed suit against Rob Reardon, as the Director of Corrections for Lafayette Parish, Mark Garber, as the Sheriff of Lafayette Parish, and Berkley Insurance Company. In response, the Defendants filed an exception of prematurity alleging that Mr, Barlow failed to exhaust the administrative remedies provided in the Lafayette Parish Corrections Center handbook. The Defendants also filed an exception of prescription and abandonment. A hearing on the exceptions was' held on January 30, 2017. On that same day, the trial court signed a judgment sustaining both the exception of prematurity and the exception of prescription and abandonment and dismissing Mr. Barlow’s claims against the Defendants, Mr. Barlow then filed the present appeal.

DISCUSSION

Mr; Barlow claims that the exception of prematurity should have been' denied for several reasons. First, he claims that the grievance section of the handbook does |2not apply to injury claims resulting from falls due to negligence and/or premises liability. Secondly, he claims that the Defendants had sufficient notice of his complaint. Finally, Mr. Barlow claims that the Defendants failed to provide sufficient evidence that he received a: revised handbook and was informed of the new procedures.

When . an action has been brought before.the right to enforce it has accrued, it will be subject to an exception of. prematurity under La.Code Civ.P. art, 926(A)(1). Crooks v. Louisiana Pac. Corp., 14-724 (La.App. 3 Cir. 12/10/14), 155 So.3d 686. “The function of an exception of prematurity is to determine whether a judicial cause of action is not available yet because of some unmet prerequisite condition,” Id. at 688, The burden of proving prematurity is on the defendant pleading the exception of prematurity. Fontenot v. S. Energy Homes, Inc., 07-1114 (La.App. 3 Cir. 3/5/08), 978 So.2d 549. The trial court’s granting of an exception of prematurity is a 'final judgment subject to the manifest error standard of review unless it involves a question of law. McDonnell v. Architectural Solutions, LLC, 14-432 (La.App. 3 Cir. 11/5/14), 150 So.3d 572, writ denied, 14-2554 (La. 2/27/15), 161 So.3d 1; Eldridge v. Heritage Manor, L.L.C., 06-718 (La.App. 3 Cir. 11/2/06), 942 So.2d 743.

Pursuant to La.R,S. 15:1171, the sheriff may adopt an administrative remedy procedure at its adult institutions which includes procedures for receiving, hearing, and disposing of any and all complaints and grievances against the department which arise while the offender is in custody, including actions pertaining to personal injuries.

Louisiana Revised Statutes 15:1172 provides, in pertinent part:

A. Upon adoption of the administrative remedy procedure, in accordance with the Administrative Procedure Act, and the implementation of the procedure within the department, or by the sheriff, this procedure shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action they may | ¡¡claim to have against the state of Louisiana, the Department of Public Safety and Corrections, or its employees, the contractor operating a private prison facility or any of its employees, shareholders, directors, or officers, or a sheriff, or his employees or deputies. Any administrative remedy procedure in effect on January 1, 2001, including the procedure published in LAC 22:1.325, is deemed to be in compliance with the provisions of this Section.
B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.
C. If an offender fails to timely initiate or pursue his administrative remedies within, the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

. The Defendants introduced into evidence at the hearing a document signed by Mr. Barlow indicating that he received the Lafayette Parish Correctional Center handbook on March 23, 2015. The same document also indicates that he was briefed on the grievance procedures on March 24, 2015, which he also acknowledged by his signature.

Sonia Vidrine, the operations sergeant with the Lafayette Parish Sheriffs Office who handles grievances, testified that, the handbook was revised in 2015 but not .until September 8, 2015. Therefore, Mr. Barlow received the 2012 version of the handbook. The 2015 version provided for an electronic system of submitting grievances whereas the 2012 version required that grievances be placed in a locked box. The.2012 version was also the version in effect at the time of Mr. Barlow’s two falls in July and August 2015. We will therefore review the 2012 handbook grievance procedures as they apply to Mr. Barlow’s case.

|4The grievance procedures in the 2012 handbook provided:

A grievance is a complaint,. It-must concern a rule of procedure, complaint of .expression or misconduct by a deputy in administering such rules or operation of the LPCC. A personal dispute between an offender and an employee is not considered grounds for a grievance,
1). If you have a grievance, you must follow these procedures:
a) Attempt to resolve the grievance with the deputy.-
b) If unsuccessful,- submit a grievance' form in the Administrative Remedy' Procedure (A.R.P.) box within thirty (30) days of the incident. All grievances must be legible and must provide specific dates, times and persons involved. •
c) The grievance form will be reviewed by the ARP officer and will be turned'over to the appropriate staff inember for investigation. You will receive a written reply within (14) days from the time they receive your grievance,
d) If you are dissatisfied with the outcome, you may resubmit the grievance to the appropriate section Lieutenant for further investigation. You will receive a response from the Lieutenant within fourteen .(14) days, from , the time they receive your grievance.. •
e) If you are still dissatisfied,.you may- resubmit the grievance to the Jail Commander or designee. The Jail Commander or -designee will reply within fourteen (14) days from the time they receive your grievance.
f) All grievance appeals to the next level must cite the original grievance number.
g) This procedure has been instituted so all grievances can be resolved in a timely and orderly fashion.
A grievance will only be considered valid if the situation affects you personally. The following issues will be rejected: Court decisions, Pardon and Parole Board decisions, work release decisions, Department of Corrections (DOC) time sheets, DOC responsibilities, disciplinary hearing board decisions, grievances filed for an offender by another offender, premature grievances, failure to summarize complaint in the space provided on the form, the offender has requested a remedy for more than one incident on the same form and grievances filed more than thirty (30) days after the date of the incident. In the event that multiple grievances are received from different individuals regarding the same incident, only one will be accepted and answered. The offender refuses to cooperate with inquiry into his allegation, the grievance may be denied due to lack of cooperation.

Mr. Barlow argues that the grievance procedures do not address injury claims. However, the Defendants assert that the “operation of the LPCC” pertains to the | [¡personal injury claims asserted by Mr. Barlow. They claim that Mr. Barlow’s allegations in his petition indicate that he was injured as a result of a dangerous condition of water flowing from an open pipe below the sink into a bucket in the kitchen which resulted in water overflowing onto the floor. Mr. Barlow also alleged that there were no warning signs of this dangerous condition on the premises.

We agree with the Defendants that the grievance procedures clearly apply to complaints about the operations at the Lafayette Parish Correctional Center. Mr. Barlow makes a claim that he was injured as a result of dangerous operations at the Lafayette Parish Correctional Center in the kitchen area, i.e., overflowing water which puddled on the floor and failure to warn of its existence and to clean it up.

Further, we do not find that the administrative remedy is inadequate and confusing so that it deprived Mr. Barlow of his right to pursue an injury claim. In making this argument, Mr. Barlow relies on Wallace v. GEO Group, Inc., 11-863 (La.App. 3 Cir. 2/1/12), 84 So.3d 750. In that case, the inmate made several attempts to have his complaints addressed by pursuing the proper administrative remedies. Once the inmate started the administrative process as outlined, there were no directions as to how he was to proceed for further review so that the administrative remedies were inadequate.

In the present case, Mr. Barlow never started the administrative process at all. He clearly had to file a grievance form and place it in the Administrative Remedy Procedure Box. Evidence at the hearing was introduced that Mr. Barlow followed this procedure, although after these incidents, on November 8, 2015, for another matter. Mr. Barlow clearly was aware of the administrative procedures he needed to follow but chose not to do so when he fell in July and August 2015.

UMr. Barlow also argues that the Defendants had sufficient notice of his claim because each fall was witnessed by a deputy and he was escorted by a deputy to a nurse where his statement was recorded. Additionally, Mr. Barlow references a letter his attorney wrote to Director Reardon on October 27, 2015, requesting an MRI of Mr. Barlow’s neck and back in addition to requesting the name of the liability insurer.

We agree with the Defendants that the record is devoid of any evidence that Mr. Barlow was escorted by a deputy to a nurse where his statement was recorded. An appellate court cannot consider evidence which is only referred to in briefs and not part of the record on appeal. Bradford v. Avoyelles Parish Sheriff Dept., 16-831 (La.App. 3 Cir. 7/5/17), 224 So.3d 427.

Furthermore, Ms. Vidrine testified that the Administrative Remedy Procedures do not go to the warden. It is processed by the Administrative Remedy Procedure Officer and the department manager who handles the complaint and has the final say over the result of the grievance. Mr. Barlow cannot circumvent the grievance procedures as outlined by the Lafayette Parish Correctional Center with procedures of his own choosing. He is required to follow the administrative procedures as outlined in the handbook.

The Defendants established that an administrative remedy existed for Mr. Barlow’s claim. The burden then shifted to Mr. Barlow to show that his administrative remedies have been exhausted or that those remedies are irreparably inadequate. Mr. Barlow has failed to do so. On the record before us, we find no error in the trial court’s dismissal of Mr. Barlow’s suit as premature.

Mr. Barlow never submitted a grievance form to the Administrative Procedure Remedy box. Therefore, he did not exhaust his administrative remedies and the exceptions of prematurity and prescription and abandonment were properly granted.

17For the reasons set forth in this opinion, the judgment of the trial court granting the Defendants’ exception of prematurity and exception of prescription and abandonment is affirmed. Costs of appeal are assessed to Joseph Barlow.

AFFIRMED.


author: KEATY, Judge.

text:
    Gregory CASTAIN v. AMERICAN SUMMIT INSURANCE COMPANY
    CW 17-375
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017
    John R. Walker, Sam J. Collett, III, Jones Fussell, L.L.P., Post Office Box 1810,, Covington, Louisiana 70434, (985) 892-4801, Counsel for Defendant/Applicant: Ameripan Summit Insurance Company '
    . Gregory Castain, In Proper Person, 1264 Louisiana Highway 749, Opelousas, Louisiana 70570, (337) 351-8411, Plaintiff/Respondent
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

11 Relator, American Summit Insurance Company, sought supervisory writs from a judgment denying its motion for summary judgment. By order dated June 19, 2017, we granted the writ and' gave the parties time to file additional briefs and to request oral argument should they deem it necessary. Thereafter, no additional briefs were filed and oral argument was not requested. Accordingly, we now address the merits of Relator’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

This case involves a lawsuit which Plaintiff, Gregory Castain, filed, seeking to recover for damages to his house which was struck by a vehicle that ran off the roadway. On January 24, 2014, Kenneth Rosette was driving his pickup truck on Louisiana Highway 749 -in Opelousas, Louisiana, when he lost control of the vehicle. After crossing the centerline, - the east -shoulder of the road, and- a ditch,. Mr. Rosette’s vehicle went onto Plaintiffs property and struck the front of Plaintiffs house. Plaintiff alleges that the force of impact caused damage to his front ¡door, storm door, vinyl siding, and- concrete steps. Plaintiff also alleges that the impact caused the house’s foundation to become dislodged, resulting in humps and dips in -the flooring. Plaintiff filed 'a claim with Relator, which had issued a homeowner’s insurance policy to Plaintiff. Relator paid to repair Plaintiffs door, Lsteps, and siding; however, Relator refused to pay for the alleged damage to the foundation on the basis that coverage for such damage is excluded under the policy. Subsequently, Plaintiff, acting in proper person, filed the-instant lawsuit. .In November 2016, Relator filed a motion for,summary judgment, seeking dismissal of the lawsuit. The trial court excluded Plaintiffs opposition to the motion for summary judgment on the ground that it was untimely filed. Following a hearing, the trial court denied Relator’s motion for summary judgment. Relator seeks review of the trial - court’s ruling.

LAW

Appellate courts “review a grant .or a denial of a motion for-summary judgment de novo.” Bridges v. Cepolk Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153 So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14), 147 So.3d 1117. As noted in La.Code Civ.P. art. 966(A)(2), “[t]he summary, judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” On de novo review, “there is no deference to the-trial judge’s legal findings, and we make an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment -as a -matter of law under La.Code Civ.P. art. 966.” Bridges, 153 So.3d at 1145. “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.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

Hanks v. La. Cos., 16-334, p. 9 (La.App. 3 Cir. 12/14/16), 205 So.3d 1048, 1056 (footnote omitted), writ denied, 17-260 (La. 5/19/17), 220 So.3d 749.

, According to La.Code Civ.P. art. 96.6(D)(1):

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

Louisiana Code of Civil Procedure Article 967(B) further provides that:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

DISCUSSION

Relator asserts that the trial court erred in denying its motion for summary judgment. Relator takes the position that coverage for Plaintiffs claim is excluded under Exclusion-A of its policy. That exclusion provision, in pertinent part, reads as follows (italics added):

GENERAL EXCLUSIONS
A. ,We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or ih any sequence to the loss.
2. Earth Movement, meaning earthquake including land shock waves or tremors before, during or after volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting; -unless direct loss by:
a. fire; or -
b. explosion;
ensues and then we will pay only for the ensuing loss.

Relator notes that Plaintiff alleges that the impact of the vehicle striking his house caused damage to his pier and beam foundation. Relator contends, however, that Plaintiff has not furnished any evidence to show that the damage to the foundation of his house was caused' by-the accident. Relator maintains that it, on the other hand, retained an expert whose affidavit establishes that the damage to |4the foundation of Plaintiffs house was not due to anything other than movement or settlement of the earth. In that regard, Relator notes that its expert, Joe D. Hughes, a registered professional engineer in Louisiana and Texas, examined Plaintiffs house and concluded that the conditions in its foundation were the result of long-term, ongoing problems caused by differential earth movement, rather than by the lateral impact by a vehicle. Relator points out that Mr. Hughes’s opinion was based on factors such as the lack of evidence of lateral movement of the girders, and the fact that a significant amount of repairs had been performed on the foundation in the past. Further, Relator notes that Mr. Hughes’s report suggests that the particular area of land upon which Plaintiffs house sits is subject to drought, which is a common cause of earth settlement. Relator asserts that coverage is excluded for Plaintiffs claim because the policy at issue excludes coverage for Tosses caused by the earth sinking, rising, or shifting, unless direct loss is caused by fire or explosion. Relator contends that while it has submitted ample proof that coverage is excluded under its policy, Plaintiff has failed to submit any evidence to show that there is coverage under the policy.

In opposition to the instant writ application, pro se Plaintiff asserts that the trial court did not err when it denied Relator’s motion for summary judgment. Plaintiff explains that his house was hit by a 4,500 pound truck that was traveling at a speed in excess of fifty-five miles per hour. Plaintiff points out that Mr. Hughes did not inspect the house until May 28, 2015, which was more than sixteen months after the accident. Plaintiff maintains that as a result of the time between the accident and the inspection, Mr. Hughes failed to see 95% of the evidence as most of it had been removed and replaced because emergency repairs were necessary to the foundation to make the house safe for Plaintiff and his family to continue occupying it. -In its reply brief, however, Relator asserts that none of | sthe foregoing factual allegations made by Plaintiff should be considered by this court because the record does not contain any factual support for those allegations.

Plaintiff also contends that the foundation pictures that were submitted by Relator were taken at such a distance that they do not show the discoloration and gaps between the girders located in the foundation. Additionally, Plaintiff points out that Mr. Hughes did not inspect the truck that hit Plaintiffs house. Plaintiff maintains that such an inspection would have provided valuable information regarding the speed of the vehicle and the force of impact.

With regard to the exclusionary provision on which Relator relies, Plaintiff notes that coverage is excluded for “earth movement” and that the policy explains what is meant by “earth movement.” However, Plaintiff argues that while Relator’s expert deems the damage to Plaintiffs foundation as having been caused by “earth settlement,” the exclusionary clause at issue does not mention the words, “earth settlement.” Further, Plaintiff notes that Relator’s expert, Paul Boswell, Relator’s vice president of claims, does not expressly state that the foundation damage was caused by “earth settlement.” Rather, Plaintiff notes that in Mr. Boswell’s affidavit, he states that the damage to Plaintiffs foundation “appeared to be caused by earth settlement.” Plaintiff also contends that there is an absence of scientific information regarding the condition of the soil around Plaintiffs house. In that regard, Plaintiff maintains that Relator has not shown any weather report indicating that there was any earth movement or earthquake that occurred in Opelousas, Louisiana, at any time relevant to Plaintiffs claim. According to Plaintiff, he is a lifelong resident of the Opelousas area, and there has been no earth movement in that area. However, in its reply brief, Relator counters that its expert, Mr. Hughes, stated in his affidavit that the area where Plaintiffs property is located experienced severe droughts from 2011 through recent years |fiand that drought conditions usually result in soil shrinkage and differential movements of residences.

We note that although Relator paid for some of the damage to Plaintiffs house after it was struck by Mr. Rosette’s vehicle, Relator excluded coverage for the damage to the house’s foundation on the basis that such damage is excluded under the policy it issued to Plaintiff. The exclusion provision at issue does not insure for loss caused by “earth movement” which is described as “earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting, unless direct loss by fire or explosion.” Relator’s expert, Mr. Hughes, stated in his report that it is his opinion that the automobile accident at issue did not cause any moving or shifting of Plaintiffs house. Rather, Mr. Hughes opines that the damage to Plaintiffs foundation and floors was “the result of differential movement by the building and foundation due to differential movement by the supporting foundation soils.”

After having completed a de novo review of the evidence submitted by Relator in support of its motion for summary judgment, we find that Relator met its burden of proving “the absence of factual support” for Plaintiffs claim that the damage to his foundation was caused by the January 24, 2014 accident. Thus, Plaintiff could no longer “rest on the mere allegations ... of his pleading[s],’’ and the burden shifted to him “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.” See La.Code Civ.P. arts. 967(B) and 966(D)(1); Flournoy v. Our Lady of Lourdes Regional Medical Center, Inc., 17-81 (La.App. 3 Cir. 5/17/17), 222 So.3d 103. Because Plaintiff presented no evidence to show that he will be able to prove the causation element of his claim, we conclude that 17Relator is entitled to summary judgment as a matter of law dismissing Plaintiffs claim against it. , ,¡ .

DECREE

■ For the foregoing reasons, the judgment of the trial court is reversed. Summary judgment is granted in .favor of American Summit Insurance Company, dismissing Gregory Castain’s claims against it with prejudice at Mr. Castain’s costs.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT REVERSED; MOTION FOR SUMMARY JUDGMENT GRANTED; MATTER DISMISSED.

      . Louisiana Code of Civil Procedure Article 966(H), in pertinent part, provides that "[o]n review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.” In addition, this court's Internal Rule 30 reads as follows:
      When this court issues an order in a summary judgment proceeding assigning a case for briefing and permitting the parties an opportunity to request oral argument in accordance with La.Code Civ.P. art 966.H, the parties shall have fourteen (14) days from the mailing of this order within which to file a motion requesting oral argument on the merits. The motion shall state the reasons why oral argument is necessary and shall be accompanied with the appropriate filing fee.


author: AMY, Judge.

text:
    STATE of Louisiana v. Charles C. KEENE
    17-504
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      J. Reed Walters, District Attorney, Steven P. Kendrick, Assistant District Attorney, Post Office Box 1940, Jena, LA 71342, (318) 992-8282, COUNSEL FOR APPEL-LEE: State of Louisiana
    Katherine M. Franks, Louisiana Appellate Project, Post Office Box 1677, Abita Springs, LA 70420-1677, (225) 485-0076, COUNSEL FOR DEFENDANT/APPELLANT: Charles C. Keene
    Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, .Judges.
   AMY, Judge.

hThe State alleged that a confidential informant purchased prescription pain pills from the defendant. The State charged the defendant with distribution of hydroeodone in combination with' a non-narcotic ingredient, a violation of. La.R.S. 40:968(A)(1) and La,R.S, 40;964(D)(l)(d) (Schedule III), and with conspiracy to distribute hydroeodone in combination with a non-narcotic ingredient, a violation of La.R.S. 14:26, La.R.S. 40:968(A)(1), and La,R.S. 40:964(D)(l)(d) (Schedule III). A jury found the defendant guilty of both charges; The trial court sentenced the defendant to twenty-five years at hard labor for the distribution charge and to thirteen years at hard, labor for the conspiracy charge, with the sentences to run concurrently. The defendant appeals. For the following reasons, we affirm the defendant’s conviction, vacate the defendant’s sentences,- and remand for resen-tencing.

Factual and Procedural Background

According to Detective Brant King’s testimony in this matter,. Ms. Charty Berry began acting as a confidential informant for the Narcotic Division of the LaSalle Parish Sheriffs Office in October 2014 at which time “she wanted help for a driving under suspension. A contempt charge.” In describing the arrangement in which Ms. Berry would perform narcotics purchases for the detectives, Detective King explained that it was agreed that “[the detectives] would try to help her and if she made cases[,]” then they “would pay her one hundred dollars per case.” Detective King explained that Ms. Berry occasionally received money for gasoline too.

Detective King explained that as of January 18, 2015, he “had heard [Charles Keene’s] name[,]” but was not conducting an ongoing investigation into Mr. Keene at that time. However, on that day, Ms. Berry “notified [Detective King] of being able to purchase.. .prescription pain pills from Mr. Keene.” Ms. Berry recalled that she “had talked to [the defendant’s] wife earlier that day” about the purchase. Detective King testified that, on the same day, he and Detective Tracy Clark provided Ms. Berry 12with “a covert audio/video camera along with twenty dollars in official funds for the purchase of the... suspected.. .prescription pills” by placing the items in Ms. Berry’s mailbox at 5:28 p.m. Detective Bang said that the “covert audio/video camera” was disguised as “a [wrist]watch.” Detective King testified that he and Detective Clark then “went to a remote location” so that they “wouldn’t be seen... during the transaction.”

Ms. Berry explained that after the detectives left, she retrieved the items from the mailbox, put the watch on her wrist, and walked to the Keenes’ residence, recording the events with the wristwatch as she went. Ms. Berry testified that initially Mr. Keene said he did not have any pills to give her, but eventually “he went in the house and he got some and brought the pill bottle back out.” Ms. Berry testified that she then walked back home and “put the... camera and the pills in the mailbox.” Regarding the pills that she put in the mailbox, Ms. Berry clarified that she “got them from [Mr. Keene].”

Detective King said that Ms. Berry contacted him again at approximately 6:11 p.m., and the detectives met with Ms. Berry around 6:15 p.m. Detective King testified that upon arriving, the detectives discovered that Ms. Berry had placed “two suspected hydrocodone pills and the covert audio/video camera” in her mailbox for the detectives to- retrieve. Detective King explained that Ms. Berry then met the detectives at the mailbox, and they discussed what had occurred. Detective King testified that he then took the camera and suspected hydrocodone pills into custody.

On August 20, 2015, the State filed a bill of information charging the defendant, Charles C. Keene, with one count “of Distribution of CDS III—Hydrocodone in combination with a Non-Narcotic Ingredient” in violation of La.R.S. 40:964(D)(l)(d) and 40:968(A)(1). The bill of information also charged the defendant with one count of conspiracy “to Distribute CDS III-Hydrocodone in [ ^combination with non-narcotic ingredient” in violation of La.R.S. 14:26, 40:964(D)(l)(d), and 40:968(A)(1). The defendant entered a plea of not guilty to both charges. On January 24, 2017, a jury found the defendant guilty as charged. Thereafter, the trial court sentenced the defendant to twenty-five years at hard labor for the distribution charge and thirteen years at hard labor for the conspiracy charge. The trial court ordered that the sentences run concurrently. At the sentencing hearing, the defense attorney orally objected to the sentence as excessive.

The defendant appeals, asserting as error that:

1. The evidence is insufficient to estab- • lish that Charles Keene distributed hydrocodone.
2.’ The sentences the trial judge imposed are unconstitutionally excessive 'and illegal.
3. Counsel was ineffective at the sentencing proceeding in failing to object to the illegal sentences as such and in failing to file a Motion to Reconsider Sentence for each'count. But for trial counsel’s ineffectiveness, the result of the sentencing proceeding would have been different.

Discussion

Errors Patent

In accordance with La.Code Crim,P. art. 920, all appeals are reviewed for errors patent. An error patent is one which is “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). On review, we note an error patent with regard to the sentences that the trial court imposed insofar as the sentences exceed the penalties authorized by law.

As stated above, the trial court sentenced the defendant to twenty-five years for the distribution charge and to thirteen years for the conspiracy charge. As conceded by the State in its brief to this Court and as pointed out by the defendant in his assigned errors, the trial court appears to have sentenced the defendant using the sentencing provision for a Schedule II drug. However, at the time of the incident at issue here, La.R.S. 40:964 listed hydro-codone in combination with a non-narcotic 1 ¿agent as a Schedule III drug. Moreover, the bill of information charged the defendant with conspiracy to distribute and distribution of “CDS III;—Hydrocodone in combination with a Non-Narcotic Ingredi-ente]” a violation of La.R.S. 40:964 Schedule III (D)(1)(d) and 40:968(A)(1) as well as ,La.R.S. 14:26. At both the beginning of the trial and- in closing instructions, the trial court read these same charges to the jury. The jury returned verdicts of guilty as charged. Therefore, considering the charging instrument, the opening and closing instructions given to the jury, and. the verdicts returned by the. jury, we find that the defendant was charged with, and found guilty of, the distribution of and the conspiracy to distribute hydrocodone as defined in Schedule III.

For distribution of hydrocodone, Schedule III, the maximum sentence to which the defendant could'have been sentenced is ten years at hard labor and a fine of not more than fifteen thousand dollars. La.R.S. 40:968(B). For conspiracy to distribute hydrocodone, Schedule III, the maximum sentence to \Wiich the defendant could have been sentenced is five years at hard labor and a fine of not more than seven thousand five hundred dollars. La. R.S. 14:26; La.R.S. 40:968(B). As is the situation here, when correction of a sentence involves the exercise of sentencing discretion, the case must be remanded to the trial court. State v. Fraser, 484 So.2d 122 (La.1986). Thus, we vacate the sentences and remand the case to the trial court for resentencing in accordance with the provisions' applicable to Schedule III.

Sufficiency of the Evidence

In his first assignment of error, the defendant asserts that the evidence presented at trial was insufficient to support the conviction for distribution of hydroco-done. Specifically, the defendant questions whether Ms. Berry was a credible witness and whether “the audio / video made in the dark.reflects] a drug transaction!/]”

The' standard of review for analysis of án insufficient evidence claim is 'found in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (alteration inj^ original), in which the Supreme Court explained- that: “[T]he relevant question is whether, after‘viewing the evidence in the light most favorable to the prosecution,'troy rational trier of fact could have found the esséntial elements 'of the crime beyond a reasonable doubt.” See also State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367. In discussing the standard, the Louisiana Supreme Court has cautioned: “A determination' of the weight of evidence is a question of fact, resting solely with, the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses.” State v. Macon, 06-0481, pp. 7-8 (La. 6/1/07), 957 So.24 1280, 1285. Application of the Jackson standard “does not permit- a reviewing court to substitute its, qwn appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of .the fact-finder[.]” State v. Calloway, 07-2306, p. 10 (La. 1/21/09), 1 So.3d 417, 422.

In pertinent part, La.R.S. 40:968 discusses the illegality of distribution of a controlled dangerous substance and the penalties for'such:

A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce; manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule III;
B. Penalties for violation of Subsection A. Any person who violates Subsection A with respect to any controlled dangerous substance classified in Schedule III shall be sentenced to a term of imprisonment at hard, labor for not more than ten years; and, in addition, may be sentenced ,to pay a fine of not more than fifteen thousand dollars,

The elements of the crime of distribution of a controlled dangerous substance are delivery or physical transfer of the subject substance; .guilty knowledge of, the substance at the time of delivery or transfer; and the exact identity of the substance. State v. Nixon, 51,319 (La.App. 2 Cir. 5/19/17), 222 So.3d 123. See also State v. Anderson, 29,282 (La.App. 2 Cir. 6/18/97), 697 So.2d 651.

jjDelivery

The defendant primarily questions whether the record reflects that the State proved delivery or physical transfer of the purported contraband beyond a reasonable doubt. Concerning this .element, the defendant specifically argues that the evidence the State- produced “should not be sufficient to constitute proof beyond a reasonable doubt to sustain a conviction” because Ms. Berry, is "[a]n incredible witness” and the recording “depicts a discussion about pills, but no transaction!/]”

As seen by the above quote, the defendant’s argument with regard to Ms. Berry is based, at least in part, on Ms. Berry’s credibility as a witness., Significantly, ,a reviewing court, is not to second guess the fact finder’s rational credibility determinations. State v. Kelly, 15-0484 (La. 6/29/16), 195 So.3d 449. Therefore, this .court has explained that it will not overturn the fact finder’s credibility assessment unless the witness’s perception was impaired as evidenced by contradictions or discrepancies within the witness’s testimony and compared to the other evidence presented. State v. Hypolite, 04-1658 (La.App. 8 Cir. 6/1/05), 903 So.2d 1275, writ denied, 06-0618 (La. 9/22/06), 937 So.2d 381; State v. Bourque, 94-0291 (La.App. 3 Cir. 11/2/94), 649 So.2d 670. For example, in Hypolite, 903 So.2d 1275, even though the witness testified that she had consumed two twenty-two ounce beers earlier in the evening, a panel of this court found that tKe jury was not unreasonable in crediting the witness’s testimony. The panel explained that “[t]he testimony did not indicate that [the witness] was' intoxicated, or otherwise unable to objectively perceive events,” and other evidence actually bolstered the witness’s credibility regarding the incident. Id. at 1279.

Similarly, although Ms. Berry testified that on January 18, 2015, she had used methamphetamine “prior on that day” and “might have” taken pills -“earlier that day[,]” we conclude that the jury was not unreasonable in crediting Ms. Berry’s testimony that delivery occurred. Rather, the jury, was able to hear the conversation!7 from the audio recording in consideration of whether Ms. Berry was seemingly “intoxicated, or otherwise unable to objectively perceive events[.]” Hypolite, 903 So.2d at 1279. Additionally, the jury heard other testimony and evidence that supported Ms. Berry’s version of the events. For example, Detective King testified that he listened to and viewed the audio/video that was obtained from the covert camera, and he answered affirmatively when asked whether Ms. Berry’s version of the events is consistent with the contents of the recording.

Additionally, and although the defendant argues that the recording is insufficient because it failed to capture delivery, we conclude that any-rational juror could have concluded beyond a reasonable doubt that the defendant delivered two pills to Ms. Berry based, on the evidence. Alongside Ms. Berry’s testimony, the State played the recording obtained from the covert camera and allowed Ms. Berry to explain the recording. As described by Ms. Berry, the excerpts of the conversation between Ms. Berry, the defendant, and the defendant’s wife concern narcotics generally and pain pills specifically.

For example, Ms. Berry confirmed that, at one point, she can be heard asking whether the defendant had pills “on pock-ety” which she clarified is slang for having narcotics on one’s physical person. Ms. Berry-verified that thereafter, the defendant is heard discussing “the medicine [he] can get from [his] kin folk and” that “they want ten dollars a pill.” Ms. Berry explained that subsequently on the recording, the defendant can be heard talking on the telephone because “[h]e was trying to get some pills.” Ms. Berry corroborated that the recording then captures- the defendant explaining why he did not have any pills on hand to sell to her but thereafter can be. heard “more or less convincing his self [sic] that [he was] going to give [her] two of -his pain pills” and then “replace them with the money.” Although the recording did not visually capture it, Ms. Berry testified, that “[the defendant] went in the house and he got some and brought the pill bottle back out.” After that, Ms. Berry confirmed |8that she can be heard saying the defendant is “an all right fellow” and that she “[does not] care what anybody says,about him” because “he just gave [her] the- two pain pills.” Ms. Berry corroborated that she can be heard saying to the defendant, “here you can take the bottle back” after she “emptied [the pills] in [her] hand[.]” Ms. Berry verified that the. defendant’s wife can then be heard, referring to the pills, saying, “you got two, right?”

Viewing the evidence in the light most favorable to the prosecution and upon consideration of both Ms. Berry’s testimony and the recording presented by the State, we find that any rational finder of fact could have concluded beyond a reasonable doubt that delivery or physical transfer occurred.

Guilty knowledge of the substance at the time of delivery

Next, we consider whether the record reflects that the State proved guilty knowledge of the substance at the time of delivery beyond a reasonable doubt. As discussed in the previous section, the record contains- a. recording of the purported transaction and surrounding conversation, apportion of which pertained to narcotics and pain pills. Ms. Berry also testified extensively regarding the discussion. Having viewed the evidence in the light most favorable to the prosecution, we find that any rational finder of fact could have concluded beyond a reasonable doubt that the defendant had guilty knowledge of the substance at the time of the transfer.

The exact identity of the substance

Last, we consider whether the State proved the exact identity of the substance "beyond a reasonable doubt. In this regard, the State presented testimony from Miley Duplechain, who was previously a forensic chemist for the North Louisiana Criminalistics Laboratory. Ms. Duple-chain testified that, in that capacity, "she “conducted a physical examination of [the] tablets to, their markings, their size, their shape, consistency.' Recorded that. And then identified them to be hydrocodone tablets with acetaminophen.” Specifically, Ms. • Duplechain explained that she | acompared the pills to the “Drug identification Bible[,]” which “gives a table of all of the possible combinations of markings, their manufacturer, their color, their shape” and “images, in color, of all of the tablets... scaled to exact size and exact font and exact description of that pill.”

Ms. Duplechain explained that physical examinations are a generally accepted practice in laboratories as well as in other fields, such as pharmacy and nursing. Ms. Duplechain testified that if she would have “had any cause to suspect” that the pills were counterfeit, she would have performed a chemical analysis to confirm the identity of the pills. Thus, as with the first two elements, a review of the record reveals support for the jury’s conclusion.

The State satisfied its burden of proving the identity of the controlled dangerous substance beyond a reasonable doubt. Accordingly, we affirm the defendant’s conviction for distribution.

Excessive Sentence and Ineffective Assistance of Counsel

The defendant’s remaining two assignments of error, which allege that the trial court imposed unconstitutionally excessive and illegal sentences and that defense counsel was ineffective for failing to object to said sentences, are moot given this court’s vacating of the defendant’s sentences and the attendant remand for re-sentencing.

DECREE

For the foregoing reasons, the conviction of the defendant, Charles C. Keene, is affirmed. The sentences are vacated and the case is remanded "for resentencing.

CONVICTIONS AFFIRMED. SENTENCES VACATED. REMANDED FOR RESENTENCING.

      . This statute was repealed effective June 23, 2015, at which point hydrocodone became a Schedule II drug in all of its forms.


author: GREMILLION, Judge.

text:
    In the MATTER OF INSPIRATIONAL ENTERPRISES Applying for Monition
    17-363
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017
    Kelvin G. Sanders, Attorney at Law, 418 Desoto Street, Alexandria, LA 71315-3922, (318) 613-8112, COUNSEL FOR APPELLANT: Edwin A. Humphrey
    Michael P. Glorioso, Inspirational Enterprises, LLC, 158 Wakeland Drive, Pineville, LA 71360, (318) 201-6453, AP-PELLEE IN PROPER PERSON: Inspirational Enterprises, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

| Appellant, Edwin A. Humphrey (Edwin), appeals the monition granted in favor of Inspirational Enterprises, LLC (IE). For the reasons that follow, we reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

IE purchased Lots 53 and 60 of the George Moore Subdivision in Alexandria, Louisiana, from BBCP Investments, Inc. (BBCP), on April 30, 2009. BBCP had purchased the properties from the Rapides Parish Sheriff on May 4, .2005, to satisfy unpaid ad valorem taxes for 2004. On January 7, 2015, IE filed a petition for monition and requested service upon Edwin and his brother, Marvin. Edwin filed an answer and asserted therein that he had received no pre-sale notiee of the tax sale. The trial court set the matter for trial on July 20,2016.

Counsel for IE had sent notice to both Edwin and Marvin Humphrey at the same address, 3740 Payne Street, Alexandria, Louisiana, ■ on September ,16, 2Q14. The correspondence was addressed to Edwin, but the United States Postal Service Form 3811, Domestic Return Receipt, was returned “unclaimed.”

The Humphrey brothers jointly purchased lots 53 and 60 of the George Moore Subdivision in September 2000, Edwin took care of the parish taxes for 2001 through 2003. However,' one year he was late paying city ad valorem taxes and received notice of that delinquency. He was under the impression thereafter that, if he paid his city taxes, he would owe no parish taxes. A Domestic Return Receipt was introduced into evidence for which Marvin signed on May 18, 2005, which demonstrated Marvin’s receipt of a letter from BBCP, dated May 12, 2005, informing him of the fact that BBCP had purchased to property at tax sale.

I ¡¿Edwin testified that Marvin is mentally disabled, ,has not worked in over thirty years, and. currently resides in-a mental institution in New Orleans. When Edwin was working as a barber, Marvin would be picked up by various adult mental health agencies to participate in day activities and returned home in the evenings.

Edwin was contacted by a Mr. Bayonne who told him that Mr. Michael Glorioso, the sole member of IE, was “trying to take [his] property.” He was also contacted by Mr. D.J. Collins, who told him the same thing.

The next information Edwin received regarding the'property was when he was served with the petition in 'the present matter. Edwin consulted an attorney but made no attempt to redeem the property, because he was not certain he owed the taxes.

Nothing in the evidence demonstrated that Edwin was notified of the tax sale before he was served with the petition in the present matter. IE argued that, pursuant to La.R.S. 47:2121, Edwin had sixty days thereafter to file a petition to nullify the tax sale and failed to do so; therefore, lack of notice of the tax sale was foreclosed to him as a defense to the monition.

Initially, the trial court ruled that the lack of notice to Edwin was fatal to the tax sale. However, IE’s counsel argued that La.R.S. 47:2157 required Edwin to file an action for nullity, which he failed to.do; therefore, deficiency in the notice of the tax sale was cured by the notice provided by IE to Edwin when he was served with the petition. The trial court then rendered judgment in favor of IE.

|,.¡Judgment granting IE’s monition and conferring ownership of the property on IE was signed on November 17, 2016. Edwin thereafter perfected this appeal. He argues that the trial court erred in granting the monition and declaring IE the owner of the property.

ANALYSIS

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition [under, the Due Process Clause of the Fourteenth Amendment] • to a proceeding which 'will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Furthermore, a mortgagee’s knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.

Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). In Lewis v. Succession of Johnson, 05-1192 (La. 4/4/06), 925 So.2d 1172, the supreme court held invalid a tax sale, the notice of which had been sent and unclaimed on three occasions to only one co-owner of the property sold. In 2005, when lots 53 and 60 were sold at tax sale, La.R.S. 47:2180(A) required the tax collector to address notice of delinquent taxes to “each taxpayer,” just as it did when Lewis was decided. The supreme court in Lewis held that “each taxpayer” meant every co-owner. The Lewis' holding was affirmed by the supreme court in C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La. 7/6/10), 41 So.3d 1134, which extended the Lems holding to include -the notion that the constitutional infirmity applies even -to co-owners who did receive notice. Lewis requires the sheriff, as the ex officio tax collector for the parish, to take additional reasonable steps to notify the delinquent taxpayers. No evidence was introduced in this 'matter to demonstrate that even Marvin had been sent notice of the pending tax sale.

LRecently, the Louisiana Supreme Court decided the case of Central Props. v. Fairway Gardenhomes, LLC, 16-1855, 16-1946 (La. 6/27/17), 225 So.3d 441, which held that post-sale notice to -the taxpayer by the purchaser satisfied the statutory requirement that an interested party be notified of the tax sale. This holding, however, only addresses the relative nullity created by the failure of the tax collector to provide post-sale notice to the.taxpayer as opposed to the absolute nullity created by the failure to provide pre-sale notice under Lewis. See Smitko v. Gulf South Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750

IE also argued that La.Const, art. VII, § 25 and La.R.S. 47:2157 foreclose Edwin’s right to argue the nullity of the sale. We disagree. Article VII, § 25(C) reads:

(C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that a part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.

Article VII, § 25(C) does not supersede the Due Process Clause, U.S. Const, amend. XIV, § 1. See U.S. Const, art. VI, cl. 2. In Smitko, 94 So.3d 750, our supreme court held that the failure to notify the owner of tax delinquency or of an impending tax sale renders the tax sale absolutely null. An absolute nullity has no legal effect; therefore, the limitation imposed by La.Const. art. VII, § 25, does not preclude an owner from asserting the absolute nullity of a tax sale.

IfiWe recognize that our holding places IE in an uncomfortable predicament. It has paid taxes levied against property over which it holds an absolutely null title. Were the record sufficient to establish a solid foundation for this court to fashion a remedy, we would do so under our authority granted by La.Code Civ.P. art. 2164, The record in this matter does not provide us with such a foundation, though, so we remand the matter to the trial court for proceedings consistent with this opinion. All costs of this appeal are assessed to. Appellee, Inspirational Enterprises, LLC.

REVERSED AND REMANDED.

      . 3740 Payne Street is the physical address-of - lots 53 and 60 of the George Moore Subdivision.

      . Louisiana Revised Statutes 47:2157 reads, in pertinent part:
      A. (1) Upon the expiration of the applicable redemptive period, the tax sale purchaser may send a notice to a tax sale party whose interest' the' tax sale purchaser intends to terminate that the party has until the later of:
      (a) Sixty days after the date of the- notice provided in this Subsection, if five ’ years have elapsed from the filing of the tax sale certificate to challenge, in a court of competent jurisdiction, the tax sale.
      (b) Six months after the date of the notice if five years have not elapsed from the filing of the tax sale certificate, to challenge, in a court of competent jurisdiction, the tax sale.

      . With the enactment of 2008 La. Acts No. 819, § 2, the legislature repealed La.R.S. 47:2180 and changed the requirements for tax delinquency notices, effective January 1, 2009. However, our courts have long recognized that the language of the law in effect at the time of the 2004 tax sale still controls, as it did in Lewis.


text:
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    Supreme Court of Mississippi.
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    Supreme Court of Mississippi.
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    Supreme Court of Mississippi.
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    Filed: 09/25/2017
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    2016-CT-00316-COA
    Supreme Court of Mississippi.
    Filed: 09/26/2017
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    2016-CT-00188-COA
    Supreme Court of Mississippi.
    Filed: 09/29/2017
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    2016-CT-00062-COA
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    2016-CT-00091-COA
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    Closed: 12/07/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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    Shelby J. KILPATRICK v. Houston T. JARVIS, Jr.
    2015-CT-00739-COA
    Supreme Court of Mississippi.
    Filed: 10/14/2017
    Closed: 12/14/2017
   Motion Desc: Petition for Writ of Cer-tiorari •

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text:
    Charles SHORTIE v. Rochelle GEORGE
    2015-CT-00944-COA
    Supreme Court of Mississippi.
    Filed: 10/23/2017
    Closed: 12/14/2017
   Motion .Desc: Petition for Writ of Cer-tiorari of Charles Shortie

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text:
    Aleshia DIETZ v. SOUTH MISSISSIPPI REGIONAL CENTER
    2016-CT-00396-COA
    Supreme Court of Mississippi.
    Filed: 09/05/2017
    Closed: 12/07/2017
   Motion Desc: Appellees Petition for Writ of Certiorari

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text:
    Averald D. BURNETT, Jr. v. STATE of Mississippi
    2015-CT-00210-COA
    Supreme Court of Mississippi.
    Filed: 09/05/2017
    Closed: 12/07/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—-Denied


author: LEE, C.J.,

text:
    Steven A. DELOGE, Appellant v. DESOTO COUNTY SHERIFF’S DEPARTMENT, Sheriff Bill Rasco, in his official capacity, and Lent Rice, Director of Internal Affairs, in his official capacity, Appellees
    NO. 2015-CP-01590-COA
    Court of Appeals of Mississippi.
    03/14/2017
    Rehearing Denied July 18, 2017
    Certiorari Denied October 26, 2017

      ATTORNEY FOR APPELLANT: STEVEN A. DELOGE (PRO SE)
    ATTORNEY FOR APPELLEES: ROBERT E. QUIMBY

      BEFORE LEE, C.J.,ISHEE AND GREENLEE, JJ. •
   LEE, C.J.,

FOR THE COURT:

¶ 1. Steven DeLoge appeals the decision of the DeSoto County Chancery Court-to grant the DeSoto County Sheriffs Department’s (DCSD) motion to dismiss for failure to state a claim upon which relief can be granted. Finding no error,- we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. DeLoge is currently serving six consecutive life sentences in Wyoming for the sexual abuse of a minor. In February 1999, DeLoge resided with Katherine Lowery in Olive Branch, Mississippi. Lowery disappeared around that date and was last known to reside in Olive Branch. DeLoge departed from Mississippi with Lowery’s children. He was arrested in November 1999 in Cheyenne, Wyoming, for sexually abusing Lowery’s eight-year-old daughter, to which he pleaded guilty and was sentenced to serve six life sentences. Following his guilty plea, evidence that had been collected, by Wyoming officials and the FBI was forwarded to DCSD to assist in its investigation of the disappearance of Lowery, in which DeLoge was a suspect. The. investigation into Lowery’s disappearance is ongoing.

'¶3. In 2013, DeLoge submitted a public-records request under the Mississippi Public Records Act (the Act) to DCSD, seeking records to indicate the physical location, itemized inventory, chain of custody, current condition, and status of all property and evidence obtained or transferred to DCSD from Wyoming. DCSD responded to the public-records request with an inventory sheet provided to it by the FBI and informed DeLoge that the items were in DCSD’s evidence-storage room. DCSD further advised DeLoge that under the Act, they were not subject to production of the documents and items because the missing-person investigation of Lowery was still in active status.

¶ 4. DeLoge filed a public-opinion request with the Mississippi Ethics Commission pursuant to Mississippi Code -Annotated section 25-61-13(l)(b) (Rev. 2010), inquiring whether DCSD’s denial of the production request was compliant with the Act. In October 2013, the Mississippi Ethics Commission found that the records sought by DeLoge were investigative reports under Mississippi Code Annotated section 25-61-3(1) (Rev. 2010) and thus exempted from production under Mississippi Code Annotated section 25-61-12 (Rev. 2010).

¶ 5. DeLoge then filed a complaint against DCSD in the DeSoto County Chancery Court, arguing DCSD improperly denied his request for information, requesting declaratory and injunctive relief, and seeking a de novo review of the Ethics Commission’s opinion. DCSD moved to dismiss DeLoge’s complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6), arguing that DeLoge failed to state a claim for which relief could be granted because the documents sought by DeLoge fall within an exemption of the Act, as they are investigative in nature and directly related to an open criminal investigation.

¶ 6. On May 4, 2015, the chancery court heard arguments from DCSD and De-Loge on the motion to dismiss. DeLoge was present by telephone. DCSD argued that all of the documents and property were investigative in nature and exempt from production under the Act. DeLoge argued that the documents and items in DCSD’s possession were not investigative in nature. He instead argued that the documents and items were exculpatory in nature, and that their production was necessary to pursue his appeal in Wyoming. On May 5, 2015, the chancery court granted DeLoge’s motion for an in camera review to determine whether the disputed documents and items were investigative and thus exempt under the Act. The review was conducted on June 29, 2015.

¶ 7. The chancery court issued its final ruling on August 24, 2015. The court gave a report of the .in camera inspection and noted that all of the documents in the possession of DCSD had been reviewed for their relevance and necessity in the open investigation of a missing person. A complete transcript of the review was made and included as part of the certified record on appeal. The chancery court stated that upon review, it could not make the determination that the documents and items were not relevant—as DeLoge argued—to the missing-person investigation in DeSoto County. For that reason, the court granted DCSD’s motion to dismiss. The chancery court’s order dismissing DeLoge’s complaint specifically stated:

This action came on to be heard on August 24, 2015, on the [DCSD’s] Joint Motion to Dismiss (Doc, 5). As requested by Mr. DeLoge, the Court conducted an in camera review of the numerous boxes of documents in the [DCSD’s] possession for their relevance to, an open investigation of a missing person in which Steven DeLoge is a suspect. The Court cannot in good conscience hold that the documents Mr. DeLoge seeks are not relevant to Defendants’ open investigation. Therefore, the motion is well[]taken at this time and should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the Joint Motion to Dismiss is granted.

¶8. It is from this order that DeLoge now appeals. We have condensed his issues as follows: (1) whether the chancery court erred when it did not convert DCSD’s motion to dismiss to a summary-judgment proceeding; (2) whether the chancery court erred when it granted DCSD’s motion to dismiss; and (3) whether DeLoge’s constitutional rights were violated.

STANDARD OF REVIEW

¶9. A motion tó dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted presents questions of law, which an appellate court reviews de novo. Covington Cty. Bank v. Magee, 177 So.3d 826, 828 (¶ 5) (Miss. 2015) (citing City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 295 (¶ 10) (Miss. 2003)). “Rule 12(b)(6) motions are decided on the face of the pleadings alone.” Covington, 177 So.3d at 828 (¶ 5) (quoting State v. Bayer Corp., 32 So.3d 496, 502 (¶ 21) (Miss. 2010)). “On a motion to dismiss, ‘the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to pr'ove any set of facts in support of his claim.’ ” Id. (quoting Belmont, 860 So.2d at 295 (¶ 10)).

DISCUSSION

I. Motion to Dismiss Not Converted to Summary-Judgment Proceeding

¶ 10, DeLoge contends that the chancery court erred when it granted DCSD’s motion to dismiss because the court considered matters outside the pleadings during the in camera review of documents submitted by DCSD. Specifically, he contends that the ruling is erroneous because the chancery court Tailed to convert the motion to a Mississippi Rule of Civil Procedure 56 summary-judgment proceeding and allow DeLoge to engage in further fact-finding or leave to amend his complaint.

¶ 11. It is true that “[w]hen presented with a Rule 12(b)(6) motion, there is only one way for the trial court to consider evidence outside the pleadings— converting the 12(b)(6) motion into a motion for summary judgment.” Williams v. Mueller Copper Tube Co., 149 So.3d 527, 529 (¶ 5) (Miss. Ct. App. 2014). “[Conversion must be explicit!.]” Id. “Whenever a trial judge converts a Rule 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside the pleadings, the judge must give all parties ten days’ notice that he is converting the motion.” Id. (quoting Delta MK LLC v. Miss. Transp. Comm’n, 57 So.3d 1284, 1289 (¶ 13) (Miss. 2011)).

¶ 12. In Breeden v. Buchanan, 164 So.3d 1057, 1068 (¶ 53) (Miss. Ct. App. 2015), we acknowledged “that a motion to dismiss for failure to state a claim limits the matters that the trial court may consider.” However, we further held that “the court may certainly consider the contents of the complaint, the documents attached to the complaint, and the documents that are referred to in the complaint if they are central to the plaintiffs claim, even though they are not attached to the complaint.” Id. (emphasis added).

¶ 13. Here, the chancery court granted DCSD’s motion to dismiss after its in camera review of the documents and items submitted by DCSD. The chancery court’s review of this evidence was not outside of the pleadings. Rather, the documents and items considered by the chancery court during its in camera review were as Bree-den stated: “documents that [were] referred to in the complaint [that were] central to the plaintiffs claim, even though they [were] not attached to the complaint.” Id. Furthermore, the review was conducted at the request of DeLoge pursuant to his complaint that these items were central to his claim. Accordingly, the chancery court did not err by not converting DCSD’s motion to dismiss to a summary-judgment proceeding. This issue is without merit.

II. Motion to Dismiss

¶ 14. We now turn to whether the chancery court erred in granting DCSD’s motion to dismiss. As we have stated, a motion to dismiss for failure to state a claim is a question of law, which we review de novo. Covington, 177 So.3d at 828 (¶ 5). The instant ease required the chancery court to determine whether the documents at issue were investigative prior to ruling on DCSD’s motion to dismiss. Whether documents “constitute an ‘investigative report’ ... is a question of fact[,] which must be answered on a case-by-case basis.” Miss. Att’y Gen. Op., 2010-00381, 2010 WL 4105478, Janous (Sept. 8, 2010). As such, this case presents a mixed question of law and fact for our review. “[P]roper review of mixed questions of law and fact require that the ... court’s ‘factual findings be reviewed for clear error[,] and that its interpretation of the law be reviewed de novo.’” Burgess v. Patterson, 188 So.3d 537, 547 (¶ 31) (Miss. 2016) (quoting Hewes v. Langston, 853 So.2d 1237, 1241 (¶ 13) (Miss. 2003)).

A. Chancery Court’s Findings of Fact

¶ 15. Here, the chancery court determined that the documents and items that DCSD asserted were exempt from production were, in fact, investigative. When DCSD asserted that the items were investigative, and DeLoge averred that they were not, the court found DeLoge’s motion for an in camera review well taken. Our examination of the record shows that the chancery court, during the in camera review, thoroughly examined all of the records, items, and documents in DCSD’s possession. Further, the court inquired to DCSD about the relevance and potential evidentiary value of each item to the ongoing investigation of a missing person in which DeLoge was a suspect. After the in camera review, the court ruled that it could not find that the items would not be relevant to DCSD’s open investigation of a missing person and granted DCSD’s motion to dismiss. Upon our review, we do not find that the chancery court’s factual finding that the items and documents were investigative was clearly erroneous or manifestly wrong. Therefore, we affirm.

B. Chancery Court’s Findings of Law

¶ 16. The chancery court dismissed De-Loge’s complaint under Rule 12(b)(6)— failure to state a claim upon which relief can be granted. DeLoge sought the production of the items and documents in DCSD’s possession under the Act. Mississippi Code Annotated section 25-61-2 (Rev. 2010) provides, “It is the policy óf this state that public records shall be available for inspection by any person unless otherwise provided by this [Act].”

¶ 17. It is undisputed that DCSD is a “public body” and that the documents and items at issue in this appeal are “public records” within the meaning of the Act. See Miss. Code Ann. § 25-61-3(a), (b). But the Act provides a specific exemption for investigative reports: “When in the possession of a law enforcement agency, investigative reports shall be exempt from the provisions of this chapter ..,. ” Miss. Code Ann. § 25-61-12(2)(a) (Rev. 2010).

¶ 18. The Act defines “investigative report,” in part, as follows:

(f) “Investigative report” means records of a law enforcement agency containing information beyond the scope of the matters contained in an incident report, and generally will include, but not be limited to, the following matters if beyond the scope of the matters contained in an incident report:
(i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;
(iii) Records that would prematurely release information that would impede the public body’s enforcement, investigative or detection efforts;
(iv) Records that would disclose investigatory techniques and/or results of investigative techniques;
(viii) Records that would impede or jeopardize a prosecutor’s ability to prosecute the alleged offense.

Miss. Code Ann. § 25-61-3.

¶ 19. Here, the chancery court determined that the documents and items within DCSD’s possession were investigative. As such, they were exempted under the Act from production. It follows that De-Loge’s complaint, which states DCSD improperly denied his request for information and production, fails to state a claim upon which relief can be granted. Accordingly, the chancery court did not err in granting DCSD’s motion to dismiss. This issue is without merit.

III. Violation of DeLoge’s Constitutional Rights

¶ 20. DeLoge also contends that his constitutional rights were violated by DCSD’s retention of the documents and items at issue. “Property seized under a search warrant is an exercise of the police power of the [S]tate, and the [S]tate has the authority to keep and maintain control of the property until it is no longer needed in a criminal prosecution or investigation.” Kea v. Keys, 83 So.3d 399, 405 (¶ 15) (Miss. Ct. App. 2011) (quoting Neuman v. Stuart, 597 So.2d 609, 614 (Miss. 1992)). Here, the documents and items at issue were seized under a search warrant issued in Wyoming and were transferred to DCSD only at the close of the Wyoming case against De-Loge. DCSD has the authority to keep and maintain control of the property until it is no longer needed in the investigation, which is still ongoing. DeLoge also argues that his constitutional rights were violated because he was not present when the chancery court announced its ruling on August 24, 2015. “The . Confrontation Clause of the Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,’ ” Corbin v. State, 74 So.3d 333, 337-38 (¶ 13) (Miss. 2011) (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). This was a civil action in which DeLoge was the plaintiff—not a criminal action in which he was the defendant. Therefore, the Confrontation Clause is not implicated so as to require DeLoge’s presence. Furthermore, the chancery court did not hear any testimony at the hearing. The court merely announced its ruling on the motion to dismiss.

¶ 21. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ„ CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.