author: THIBODEAUX, Chief Judge.

text:
    Shannon James SUAREZ v. John DEROSIER, Individually and in His Capacity as the Calcasieu Parish District Attorney, et al.
    17-770
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Glen R. Petersen, Hymel Davis & Petersen, L.L.C., 10602 Coursey Boulevard, Baton Rouge, LA 70816, Telephone: (225) 298-8118, COUNSEL FOR: Defendant/Appellee-John DeRosier, Individually and in his Capacity as the Calcasieu Parish District Attorney
    Christian D. Chesson, Joseph Lee Manuel, One Lakeshore Drive-Suite 1800, Lake Charles, LA 70629, Telephone: (337) 436-5297, COUNSEL FOR: Plaintiff/Appellant-Shannon James Suarez
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

Shannon James Suarez brought suit against District Attorney John DeRosier and Investigator Bill Pousson, alleging malicious prosecution and misconduct in investigative and administrative duties in the District Attorney's Office. Defendants were granted summary judgment on the grounds of absolute immunity. Mr. Suarez now appeals, asserting that the trial court erred in granting the motion because he was not allowed to adequate discovery. We agree. We, therefore, reverse the judgment of the trial court and remand to allow Mr. Suarez the opportunity for adequate discovery. We express no opinion regarding the merits of Mr. Suarez's claims.

I.

ISSUES

This court must consider whether the trial court erred in granting the motion for summary judgment for a malicious prosecution claim when the plaintiff was denied adequate discovery for seven months. This court must also consider whether the trial court erred in not deeming the plaintiff's request for admission of fact admitted when defendants failed to answer within the specified time period under La.Code Civ.P. art. 1467(A).

II.

FACTS AND PROCEDURAL HISTORY

On June 30, 2009, Mr. Suarez allegedly threw a box of Twinkies at Jerry W. "J.W." Peloquin II. Mr. Peloquin alleged that Mr. Suarez had been stalking him for several months and had threatened and battered him in August and September 2009. Lori Guidry Smith also alleged that Mr. Suarez stalked her in August 2009. Mr. Suarez was arrested by local authorities, and, on March 29, 2011, the Calcasieu Parish District Attorney's Office filed formal charges of stalking, a violation of La.R.S. 14:40.2(A). The District Attorney amended the Bill of Information on May 23, 2013, adding simple battery, a violation of La.R.S. 14:35, for the alleged battery on June 30, 2009.

Mr. Pousson went to Mr. Suarez's place of employment to talk to him about the charges. Mr. Suarez alleges Mr. Pousson offered to make his problems "go away" and encouraged him to plead guilty and spoke to him even though he knew Mr. Suarez was represented by counsel.

Mr. Suarez filed a motion to quash, asserting the battery charge had prescribed. Mr. Suarez appealed the trial court's adverse decision and discovered that a subsequent version of the Bill of Information had been stamped "Sex Offender." This court granted the writ and dismissed the charges. The Louisiana Supreme Court denied the District Attorney's writ application.

Mr. Suarez filed suit against Mr. DeRosier on September 24, 2015, alleging malicious prosecution and misconduct in the investigative and administrative duties of the District Attorney's Office. Mr. Suarez alleges that the "Sex Offender" stamp on the Bill of Information was defamatory, and subjected him to ridicule, humiliation, and condemnation because it could be accessed through public record. Mr. Suarez also claimed that the labeling of "Sex Offender" caused the intentional infliction of emotional distress. Plaintiff's counsel sent Interrogatories, Request for Production of Documents and Request for Admissions on October 6, 2015, which were delivered by certified mail with signature confirmation on October 9, 2015. Defense counsel requested an informal extension to file responsive pleadings, and both parties agreed to the extension until November 13, 2015.

On November 19, 2015, Defendants filed a motion for summary judgment with a supporting memorandum, asserting absolute immunity. No responsive pleadings were filed. Identical affidavits of Mr. DeRosier and District Attorney's Office employees were entered into the record. Defendants never answered Plaintiff's petition nor did Defendants answer requests for discovery. A motion to continue the summary judgment hearing was filed on February 18, 2016, and the hearing was continued until April 20, 2016. The motion was granted on the understanding that Defense counsel would comply with discovery requests.

Mr. Suarez filed an Amended and Supplemental Petition on April 12, 2016, adding Mr. Pousson as a Defendant. At the April 20, 2016 hearing, Defense counsel maintained he had not received discovery requests. However, the Interrogatories and Request for Production of Documents and Request for Admissions were sent by certified mail and signed for on October 9, 2015. The hearing was continued until June 1, 2016 to allow for Defense counsel to review the Amended and Supplemental Petition and to respond to propounded Interrogatories and Request for Production of Documents and Request for Admissions. Due to a scheduling conflict, the hearing ultimately was held on June 3, 2016.

On April 25, 2016, Defense counsel's paralegal requested another informal extension until May 1, 2016 to answer the First Amended and Supplemental Petition for Damages. In exchange for the extension, Plaintiff's counsel requested dates be set aside in May to take depositions prior to the hearing scheduled for June. Defense counsel's paralegal responded via email asking who Plaintiff's counsel wished to depose. Plaintiff's counsel responded that he wished to depose Mr. Pousson and Mr. DeRosier, and possibly others based on documents from the anticipated discovery. After Plaintiff's counsel told the paralegal to contact his office manager to set the depositions, the paralegal did not further respond to Plaintiff's counsel's emails. The office manager called the paralegal and the paralegal only provided June 15, 2016 as a possible deposition date, notably not in May as Plaintiff's counsel had requested to take depositions before the summary judgment hearing. Later, the paralegal called the office manager to reschedule the depositions to June 20, 2016. However, Mr. Pousson became unavailable on that date. The parties could not get the depositions rescheduled because Defense counsel refused the dates unless Mr. DeRosier and Mr. Pousson were deposed on the same date because he did not want to drive to Lake Charles twice.

Defendants filed a memorandum to support the motion for summary judgment on May 2, 2016. During this time, Plaintiff tried to propound discovery and Defendant continued not answering any discovery. As of May 27, 2016, no depositions were scheduled, and no discovery was received. Plaintiff's counsel filed a motion to continue because Memorial Day Weekend was on May 30, 2016, and any discovery he might receive would not allow him time to adequately prepare for the summary judgment hearing.

Mr. Suarez filed a Motion to Compel Answers to Interrogatories, and Request for Production of Documents and Deem Requests for Admissions Admitted on May 27, 2016. The Defendant did not answer discovery requests until after the motion to compel was filed by Mr. Suarez. Plaintiff's counsel's attempts to depose Defendants and to propound discovery were ignored. During the hearing, Defense counsel said he filed a response to the Request for Admissions but not the other two discovery requests because it would bear on the ultimate decision of the case. Defense counsel further suggested that Mr. Suarez could not move forward because the case is a malicious prosecution case and the actions were part of the judicial process and, therefore, subject to absolute immunity.

Plaintiff's counsel proffered four exhibits at the summary judgment hearing: a letter requesting an extension from Defense counsel; Interrogatory and Request for Production of Documents to Defendant; emails from Plaintiff's counsel to Defense counsel's paralegal; and Defendant's Response to Plaintiff's Request for Admissions. The trial court granted the motion for summary judgment. The court noted that a continuance for discovery would be denied and the motion to compel would be rendered moot as well. Mr. Suarez now appeals.

III.

STANDARDS OF REVIEW

"Appellate courts review summary judgments de novo , using the same criteria applied by the trial courts to determine whether summary judgment is appropriate." O'Brien v. Town of Glenmora , 08-309, p. 3 (La.App. 3 Cir. 11/5/08), 997 So.2d 753, 756. A court must grant a summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any ... show that there is no genuine issue as to material fact." La.Code Civ.P. art. 966(B). Summary judgment "is designed to secure the just, speedy, and inexpensive determination of every action ...." La.Code Civ.P. art. 966(A)(2). For a continuance, the abuse of discretion standard is applied "to determine if the trial court allowed adequate time for discovery." Advance Products & Systems, Inc. v. Simon, 06-609, p. 5 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, 792.

IV.

LAW AND DISCUSSION

First, this court must address whether the trial court properly granted the motion for summary judgment on the malicious prosecution claim. Mr. DeRosier argues that the grant of summary judgment was proper because a prosecutor is entitled to absolute immunity. Mr. Suarez asserts that in order to determine whether the torts complained of in the petition fall into absolute immunity or qualified immunity, adequate discovery is necessary. Mr. Suarez contends that summary judgment was improper when he was denied adequate discovery because Defendants failed to answer discovery for seven months, and the case hinges upon establishing the type of action to determine the applicable immunity.

Mr. Suarez argues that he has a cause of action for malicious prosecution, defamation, intentional interference, and intentional infliction of emotional distress. Mr. Suarez contends that Mr. DeRosier's assertion that the District Attorney has absolute immunity is incorrect because the District Attorney has qualified immunity for administrative and investigative functions. Mr. Suarez argues that malice and bad faith are questions of fact for which they do not know the answer because they did not complete discovery. Plaintiff's counsel alleges Defense counsel intentionally tried to avoid discovery and only answered the Request for Admissions of Fact via email twenty minutes after Plaintiff's counsel filed a motion to compel. Mr. Suarez maintains that adequate discovery is necessary to show that there is a genuine issue of material fact. We agree.

In order to establish a prima facie case for malicious prosecution, a plaintiff must prove six elements:

(1) The commencement or continuance of an original criminal or civil judicial proceeding;
(2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding;
(3) its bona fide termination in favor of the present plaintiff;
(4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; and
(6) damage conforming to legal standards resulting to plaintiff.

Terro v. Chamblee , 95-70, p. 3 (La.App. 3 Cir. 7/19/95), 663 So.2d 75, 77 (citing Robinson v. Goudchaux's , 307 So.2d 287 (La.1975) ). When prosecutors engage in administrative, investigative, or ministerial roles, the prosecutor has qualified immunity rather than absolute immunity. See Fields v. Wharrie , 740 F.3d 1107, 1111 (7th Cir. 2014) ; see also Hayes v. Parish of Orleans , 98-2388, pp. 3-5 (La.App. 4 Cir. 6/16/99), 737 So.2d 959.

Mr. DeRosier filed the motion for summary judgment on the basis of absolute immunity. Under La.Code Civ.P. art. 966(C)(1) :

After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.

Mr. DeRosier submitted affidavits of his employees in support of absolute immunity. Prosecutors may have absolute immunity or qualified immunity depending upon their actions. Prosecutors have absolute immunity when their actions are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman , 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Additionally, La.R.S. 9:2798.1(B) states:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

However, under La.R.S. 9:2798.1(C)(2), malicious acts do not fall within Subsection B.

The trial court judge denied the request for the continuance and granted summary judgment even though Defendants failed to answer timely. Defendants repeatedly made representations to the court that they would comply with discovery; however, Defendants later said that discovery would bear on the ultimate decision and absolute immunity obviated the necessity of certain discovery. We find that the trial court abused its discretion by denying the motion to continue because of inadequate discovery.

Furthermore, Mr. Suarez also asserts that the trial court erred by admitting the affidavits and granting summary judgment when the affidavits were duplicated and ingenuously claimed personal knowledge of acts in the District Attorney's Office. On appeal, Mr. Suarez argues the affidavits were not specific and not sufficient to support summary judgment.

Under La.Code Civ.P. art. 966(F)(2) :

Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph ....

Plaintiff's counsel never challenged the admissibility of the affidavits as required by La.Code Civ.P. art. 966 (F)(2). The affidavits are all of employees of the District Attorney's Office in their prosecutorial duties. Plaintiff's counsel did not oppose the affidavits nor did he file a motion to strike. After submission of the affidavits, the burden shifts to the party opposing the motion for summary judgment to show there is a genuine issue of material fact under La.Code Civ.P. art. 966(C)(2). It was then incumbent on Mr. Suarez to show there was a genuine issue of material fact.

Although Mr. Suarez alleged malicious prosecution and intentional infliction of emotional distress in the petition, the trial court indicated that it thought that malicious prosecution was the primary issue. Plaintiff's counsel at neither the first nor the second hearing submitted any evidence. Plaintiff's counsel proffered four exhibits at the summary judgment hearing. However, even the proffered evidence did not timely comply with La.Code Civ.P. art. 966(B)(1). Mr. Suarez failed to satisfy his burden on opposition to the motion for summary judgment once the burden had shifted. We further observe, notwithstanding a motion to object, the affidavits were made from personal knowledge and the testimony (averments) would be competent and admissible evidence at trial.

Mr. Suarez argues that the trial court erred in finding that the District Attorney enjoys absolute immunity for administrative functions. Defendants assert absolute immunity is applicable. The motion for summary judgment was based on the absolute immunity of the District Attorney's Office and once the affidavits were filed, it was incumbent upon Mr. Suarez to show a lack of absolute immunity because the burden of production shifted. The only way for Mr. Suarez to show a lack of absolute immunity was to show that the actions of Defendants were administrative functions for which qualified immunity would be applicable.

Mr. Suarez filed the original petition in September 2015, and propounded discovery in early October 2015. On April 12, 2016, Mr. Suarez amended the original petition, adding Mr. Pousson as a Defendant. Additionally, Defense counsel requested an extension to file responsive pleadings. Plaintiff's counsel and Defense counsel agreed to an extension until November 13, 2015. However, on November 19, 2015, Defense counsel filed a motion for summary judgment rather than responding to pleadings.

Further, at the hearing on April 20th, Defense counsel agreed that he would provide answers to discovery. The trial court instructed Defendants to comply with discovery and, according to Mr. Suarez, Defense counsel also assured him that they would comply and answer discovery. Defense counsel repeatedly denied receipt of discovery requests, asked for multiple formal and informal extensions, and impeded efforts to setup depositions. Defense counsel evaded discovery requests for seven months and relied on his motion for summary judgment as a tool to avoid discovery.

From the time when the discovery request was received by Defense counsel on October 9, 2015, until the April 20, 2016 hearing, Defense counsel ignored discovery requests, claiming he never received them. Following the April 20th hearing, Plaintiff's counsel attempted to schedule depositions in May, prior to the hearing that was continued until June, but was unsuccessful. Rather, Defense counsel's paralegal did not contact the Plaintiff's counsel's office manager but the Plaintiff's counsel's office manager had to call the paralegal. The paralegal ultimately scheduled the depositions for mid-June. The depositions were subsequently cancelled because of Defense counsel's refusal to drive to Lake Charles for two deposition dates because Mr. Pousson was unavailable on the rescheduled date.

When Mr. Suarez filed a motion to compel and a motion to continue on May 27, 2016, no discovery had been received and no depositions had been scheduled since discovery was propounded on October 9, 2015. Plaintiff's counsel filed a motion to continue along with the motion to compel because a Memorial Day weekend would prevent him from preparing for the June 3rd summary judgment hearing. However, the trial court denied both motions.

Mr. Suarez argues that the trial court erred in finding no genuine issue of material fact. Louisiana Code of Civil Procedure Article 966(B)(2) reads, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law ....

In Broussard v. Winters , 13-300 (La.App. 3 Cir. 10/9/13), 123 So.3d 902, this court reserved the trial court's grant of summary judgment premature when there was not adequate discovery, finding that a question of material fact remained regarding definitions and terms in the insurance policy at issue. There, the defendant failed to respond to discovery for nearly a year and the trial court granted summary judgment even though there was a pending motion to compel. Id. The plaintiff argued in the motion to compel that the definition of terms he requested during discovery was determinative of his coverage and, therefore, the crux of the case. Id.

Here, like the plaintiff in Broussard , Mr. Suarez was denied adequate discovery because Defendants failed to answer discovery for seven months. The trial court clearly noted absolute immunity was at issue and found that Defendants were entitled to summary judgment. However, Defense counsel's failure to provide discovery, claiming immunity applied, prevented Mr. Suarez from obtaining adequate discovery and from meeting the burden of production required of a party opposing a motion for summary judgment. The trial court abused its discretion when it declared Mr. Suarez's motion to continue and motion to compel as moot because discovery was not sufficient for summary judgment.

Defense counsel made it difficult to schedule depositions, only providing dates which would occur after the summary judgment hearing, and later cancelling those dates before the hearing. Defense counsel was unwilling to reschedule, creating additional hinderances for Plaintiff's counsel. Further, Defense counsel failed to answer the propounded discovery. Thus, without discovery and without the ability to depose the Defendants, it is no surprise that Mr. Suarez was unable to establish whether the Defendants were acting within their administrative or their ministerial functions when they stamped "Sex Offender" on his Bill of Information. As such, a question of material fact still exists. Just as the plaintiff in Broussard needed the definition of terms through discovery which were determinative of coverage, Mr. Suarez needed this information because it is determinative as to whether qualified or absolute immunity applies, which the case hinges upon. Therefore, we find the trial court erred in granting the motion for summary judgment when Mr. Suarez did not receive adequate discovery to satisfy the burden of production. We remand the case to the trial court to allow Mr. Suarez the opportunity to conduct adequate discovery pursuant to La.Code Civ.P. art. 966(C)(1).

Next, we must determine whether the trial court erred in not deeming Mr. Suarez's Request for Admission of Fact admitted when Defendants failed to answer within the specified time under La.Code Civ.P. art. 1467(A). Mr. Suarez contends that the trial court failed to admit the Request for Admissions when Defendant did not answer discovery for seven months. On appeal, as argued in Mr. Suarez's motion to compel, Mr. Suarez asserts that the delay for objecting or answering had passed and the movers were entitled to an order compelling an answer to Interrogatories and Request for Production. Mr. Suarez alleges that the trial court failed to address Defendants' failure to answer Requests for Admissions. Mr. Suarez notes that under La.Code Civ.P. art. 1467(A), a request should be deemed admitted when Defendants failed to answer or object within fifteen days after service of the request.

Under La.Code Civ.P. art. 1467(A) :

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within fifteen days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of thirty days after service of the petition upon him ....

Under La.Code Civ.P. art. 966(F)(2), evidence is deemed admitted unless excluded in response to an objection. Mr. Suarez appeals a motion for summary judgment and that judgment does not encompass a judgment or a ruling on the merits on the request for the admissions of fact, nor does the record contain an interlocutory ruling on the merits of the requests for admissions. Because the appeal does not include deemed admissions, consideration of this issue is premature. The other issues alleged by Mr. Suarez in his petition are moot because adequate discovery was not propounded prior to the trial court's grant of summary judgment to determine whether Defendants are immune.

V.

CONCLUSION

For the foregoing reasons, we reverse the trial court's judgment and remand to the trial court for the opportunity to propound discovery. All costs are assessed to the Appellees.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Tanya BUTEAUX
    17-877
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
    M. Craig Colwart, St. Mary Parish Indigent Defender Board, P.O. Box 1226, Franklin, LA 70538, Telephone: (337) 828-3628, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    M. Bofill Duhé, District Attorney-16th Judicial District, W. Claire Howington, Assistant District Attorney-16th Judicial District, 300 Iberia Street-Suite 200, New Iberia, LA 70560, Telephone: (337) 369-4420, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    Richard Allen Spears, 101 Taylor Street, New Iberia, LA 70560, Telephone: (337) 367-1960, COUNSEL FOR: Defendant/Appellant-Tanya Buteaux
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

Defendant, Tanya Buteaux, appeals her jury conviction of three counts of theft of $1,500.00 or more, violations of La.R.S. 14:67. The trial court sentenced Ms. Buteaux to five years at hard labor on each count, to be served concurrently, with all but two years suspended, and five years supervised probation upon release from incarceration. The court also ordered Ms. Buteaux to pay restitution to the victims in the amount of $89,186.63.

We affirm her convictions and sentences and remand with instructions.

I.

ISSUES

Ms. Buteaux raises only one issue on appeal:

whether the evidence was sufficient to support a guilty verdict on all three counts of theft?

II.

FACTS AND PROCEDURAL HISTORY

Ms. Buteaux managed the Spanish Lakes One Stop gas station convenience store in New Iberia. The State alleged that Ms. Buteaux stole almost two hundred fifty thousand dollars from the store between January 1, 2011, to April 30, 2013.

The State presented evidence of theft perpetrated through a scheme whereby Ms. Buteaux manipulated daily store statements (reconciliation sheets) to short the cash deposits. The State first called George J. Trappey III, a certified public accountant who was qualified as an expert in accounting and tax preparation. In his testimony, Mr. Trappey stated that he prepared the tax returns and financial statements for the store in 2010, 2011, and 2012. He then explained how he first discovered a problem while preparing the store's 2012 business tax reports:

Okay. When I was doing the 2012 year-end work, which I would have been working on in late March or early April of 2013, they have an account called "cash transfers". And what happens is, off of these monthly reports, all of the sales activity are recorded. And the total cash that should have been deposited in the checking account is shown as a debit to this cash transfer account where it's based on those computer reports off the store system. This is how much cash should have went in the bank. Then, as they make deposits, that cash transfers account is credited or reduced for the actual deposits.
And so what happened during 2012 is, that cash transfer account just kept building a balance. And when we got to the end of the year, there was a $68,000 balance left in that account that I couldn't explain why that balance was still there and why all of the cash that should have been deposited wasn't being deposited. So we had this $68,000 unexplained difference that we couldn't figure out. So it just got me concerned. And so that's really when I called Mark Musso and said, "Mark, there's something not right. We've got this balance in this cash transfer account that I can't explain. And, you know, it's too big of an amount to just adjust." And so that's when he kinda started digging into the records at the store.

After this discovery, he looked at the monthly reports generated by the store's computer to see "what the sales ... were ... based on what the registers ... sa[id]

they should be" and compared them to what the sales were based on the accounting records. Based on his review, he found a discrepancy of "$16,000" in 2010, "$48,699" in 2011, and "$101,626" in 2012. When asked if it was possible that Susan Musso, who prepared the general ledger, may have been making mistakes in her accounting, Mr. Trappey agreed that it was possible but stated that "on my professional opinion, being a CPA for 43 years, you know, to me, the difference was a shortage that had to be accounted for by theft."

Mark Musso and his wife, Susan, co-owned the convenience store with another couple. The Mussos were responsible for operating the store, and their partner was responsible for all the legal aspects of owning and operating a gas station convenience store. Mr. Musso testified that Ms. Buteaux worked at the store from 2002 until 2013. She started as a cashier, then moved up to manager in 2007 or 2008. According to his testimony, Ms. Buteaux grossed five hundred dollars a week plus bonuses and was given a gas fill-up once a week.

As manager, one of Ms. Buteaux's responsibilities was preparing the cash deposits daily, which consisted of cash and checks only. Her work schedule was from 5:00 a.m. to 1:00 p.m. Between 5:00 a.m. and 7:00 a.m., Ms. Buteaux prepared the previous day's cash deposit, after which she would lock the deposit bag. Later in the morning, Ms. Musso would take the deposit bag to the bank where the bank teller would unlock the bag and return a bank statement reflecting the deposit amount to Ms. Musso.

Mr. Musso explained that originally the store's gas distributor was Exxon and that the cash deposit calculation was done a certain way. However, in approximately 2009, the store switched to Shell, and the cash deposit calculation was handled differently. Every day, a set amount of cash was put into the store's two cash registers, and a set amount was left in the safe allocated for change in pre-counted tubes. During the day, if a cashier needed extra cash for making change, he or she would simply punch a button, and the extra money would drop from a tube directly from the safe. When the money in the till reached a certain amount, the cashier would then drop the excess amount into an inaccessible compartment of the safe. Mr. Musso explained that all of the money allocated for change was held in a separate compartment of the safe from the compartment that held the money "dropped" into the safe, which "goes all the way to the bottom." Each time a cashier dropped money into the safe, the computer generated a report with the time of the drop and the cashier's employee I.D.

At the end of the day, the amount of money taken out of the safe for change was the "paid-in." Mr. Musso explained:

Because we had a reconciliation statement which took the G-SITE reports which were computerized, and they were reconciled to a day. And on that day report, there's a category called paid-in. On our Exxon statement, if you did $10,000 of revenue and you had $500 in safe paid-ins, your total revenue was $10,500.
Under the Shell program, if you had $10,000 of revenue, paid-in didn't exist, you ended up having $10,000 of revenue.
The difference was, was the paid-in category-and this is very important-that was the money paid from the safe to the register-was counted as revenue. When we switched to the Shell program, she kept counting that paid-in revenue. So she was basically taking the difference between the paid-in category and what was paid out. And every single day, almost without exception, she stole that amount of money.

By continuing to count the paid-ins as revenue on the daily, handwritten reconciliation sheets, Ms. Buteaux, he explained, was able to manipulate the calculation, making it appear as if the actual amount of money coming in was lower than it really was, and she just pocketed the difference.

Using a power-point, Mr. Musso demonstrated to the jury how the cash accounting used to be and how it should have been after the change of gas distributors. Then employing the Shell formula, he demonstrated why the paid-in figure was not supposed to be included in the daily reconciliation sheet. He then explained how he calculated the theft by taking the total revenue from the computer-generated printout (minuend) minus the total charges and paid-outs (subtrahend). The difference equaled the amount of cash that should have been deposited. Comparing that number with the actual deposits, as recorded in the bank receipts and reconciliation sheets, revealed the theft.

Detailing an attempt to catch Ms. Buteaux "red-handed," Mr. Musso explained how he and his wife went into the office after the store was closed and turned off the motion-activated surveillance camera. They then counted the cash in the safe and turned the camera back on before leaving. However, he testified that the "[n]ext morning, she figures out what happened and she calls my wife and says she's got a problem at home" and left the office to never return. Ms. Musso did the cash deposit that morning, and Ms. Buteaux was fired shortly thereafter. Mr. Musso explained that each morning, Ms. Buteaux would watch "the video between when she got off of work and the next morning only as it pertained to the office, because the office is the only place she can see if someone was going to do something that could catch her in the act, in my opinion."

From then on, Ms. Musso continued doing the cash deposits, and Mr. Musso testified that the business had been operating in the black since Ms. Buteaux was fired. Edward Landry, one of the co-owners, also testified that in the prior years, they had to refinance twice in order to keep the business running; however, after Ms. Buteaux was fired, the business could finally pay its bills.

Regarding the store's theft insurance, Mr. Musso testified that the store had maintained theft insurance for losses up to fifty thousand dollars per year. The store recovered in total a little over one hundred twenty thousand dollars for the years of 2010 to 2012. No losses were collected for 2013 because, for some reason, the store did not have theft insurance for that year. But based on his calculations, the store was "short" over "$35,000" between January and April 2013.

Mr. Musso further explained that in July 2011, Iberia Bank's fraud department called him and advised him that Ms. Buteaux's bank account showed an extraordinary number of cashier's checks issued to her by her son from the convenience store. As a result, Mr. Musso stopped employees from receiving cashier's checks issued from the store.

When questioned as to whether he had investigated any other employees as the potential thief, Mrs. Musso testified:

Yes. Every day you have what's called a shift change report. So every person who works, say, 7:00 to 3:00, at the end of 3:00, they hit a button, and it gives you all their sales. And it can tell you whether they are over or short. That was looked at daily by Susan. So, if one cashier was short, you knew about it that day.

Any theft would have been caught in the daily review of the computer-generated shift change report, as reflected in the notations on the handwritten reconciliation sheets admitted into evidence.

Susan Musso's testimony was essentially the same as her husband's. She further explained that she would do the morning cash deposits and reconciliation sheets whenever Ms. Buteaux was absent, but could never get the figures balanced and did not know the computation formula had changed after the switch in gas distributors. Ms. Buteaux, however, was always able to fix the problem when she returned to work. Ms. Musso also clarified that she had prepared the deposit slips nineteen or twenty times during the last two years Ms. Buteaux worked at the store, but only when Ms. Buteaux took time off.

When Ms. Musso was asked about certain notations in the reconciliation sheets, the following dialogue transpired:

A. What it means is, occasionally an employee would not ring something up properly and you would have your report for each individual employee. And it would end up showing that they were over for their day or short for their day on their own individual reports. So it was easy to identify if somebody didn't ring something up.
Q. And that writing in there refers to something like that happening?
A. Right. Basically, what she was doing was keeping track of who wasn't doing the right thing all of the time. So she would write notes for us on there.
Q. So, if anybody was stealing-other than Tanya were stealing, she would have caught it, right?
A. There was-yes, she would have been the one to catch it, yes.

Regarding the daily deposits, Ms. Musso testified that Ms. Buteaux would create the daily handwritten reconciliation sheets and deposit slips:

The deposit slip and the cash would be placed in the bank bag with a lock on it. And later in the day, some time during the morning, not on a regular schedule, I would show up and I would pick up the paperwork that was already processed and stapled together and the deposit. And I would bring that to the bank.

Once she "picked up that bag," Ms. Musso could not "get inside" it. "The tellers had the other key," and they would return the bag to her with a bank receipt after the cash was deposited.

Curry Rankin, a detective with the Iberia Parish Sheriff's Office, testified that he investigated the alleged thefts. The detective stated he received documents, which included paystubs and time sheets prepared by Mr. Musso, and also obtained Ms. Buteaux's bank records from January 2010 to July 2011. Detective Rankin testified that Ms. Buteaux's account at Iberia Bank was closed in July 2011, but that for the six months proceeding the closure, i.e., from January 2011 to July 2011, there was approximately fifty thousand dollars deposited into her account. He stated:

Well, I believe in her case she was paid on a weekly basis. You have roughly half of what her annual salary would be. When you take into account the verifiable source of income that she has from Spanish Lake Market as opposed to what was being deposited, there was a major gap between the two.

The detective prepared a summary of deposits and expenditures for that six-month period. When he then compared it to the store's time sheets and the days that the money went missing, he "found consistencies," but did not elaborate on the consistencies. He agreed that Ms. Buteaux's bank records reflected several cashier's checks paid to the order of Ms. Buteaux from her son, Edjawaski Buteaux, noting that in the month of March 2011, there were fifteen cashier's checks made out to Ms. Buteaux from her son alone. A similar number of checks were made out monthly throughout the six-month period.

The detective did concede that he did not investigate any of the other employees, who were cashiers, because only Ms. Buteaux and the owners had access to the money kept in the safe. Moreover, Ms. Buteaux and Ms. Musso were the only ones to ever prepare the cash deposits. The detective agreed that he never interviewed Ms. Buteaux's family and had no idea what the household's necessary expenditures were. He did attempt to interview Ms. Buteaux's son but was never able to locate him.

After the State rested, Ms. Buteaux testified in her defense and emphatically denied taking the money. She stated that she did the deposits as she was taught to do by Ms. Musso, and after the switch from one gas distributor to another, no one ever told her to do it differently. Because her son was bad at handling money, she explained how she had him buy cashier's checks from his earnings for her to deposit into her account to help him learn to manage his money. However, she stated that the bank forced her to close her account in July 2011 because all the cashier's checks "look[ed] suspicious." She also stated that her boyfriend, who was deceased at the time of trial, gave her money, as would her family members for joint vacations and various other reasons. Accounting for the expenditures from January 2010 to July 2011, Ms. Buteaux testified that she had two daughters living at home to support and that she would buy stuff for her son from the money he gave her. Ms. Buteaux did admit that she was the only employee who had access to the cash deposits and that she prepared the cash deposits and handwritten reconciliation sheets, except occasionally when Ms. Musso would do so because Ms. Buteaux was out for any reason. She further did not "dispute that the vast majority of the documents, over 95 percent of the documents that have been introduced with respect to these cash deposits" were in her handwriting.

Ms. Buteaux's mother, Lula Buteaux, agreed with Ms. Buteaux's testimony that she took care of her son's financials and that family members gave her money. The witness stated that if her daughter was living beyond her means, she would have noticed, and she pointed out Ms. Buteaux was still driving an old vehicle. Ms. Buteaux's daughters, Muraya and Savannah Buteaux, also testified. They both stated that if their mother had in excess of two hundred thousand dollars over the three-year period, they would have noticed. Both girls believed they were constantly struggling financially.

After deliberations, the jury returned a unanimous guilty verdict on all three counts. The trial court sentenced Ms. Buteaux to five years at hard labor on each count to run concurrently with all but two years suspended. Upon release, the court ordered that Ms. Buteaux be placed on five years supervised probation, as a condition of which Ms. Buteaux had to "pay restitution in the amount of $89,186.63."

III.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent. In sentencing Ms. Buteaux, the trial court imposed restitution of $89,186.63 as a condition of probation, but a payment plan was not imposed. This court has held, however, that when restitution is required, a specific payment plan must be established. State v. Wagner , 07-127 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203. Therefore, we remand this matter to the trial court for establishment of a payment plan for the $89,186.63 restitution.

This plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.

IV.

LAW AND DISCUSSION

Ms. Buteaux's sole contention on appeal is that there was absolutely no physical or direct proof that she stole the money from the business. As she contends, no one ever caught her stealing any money, and no one testified as to a money trail leading from the store to her. Therefore, Ms. Buteaux maintains that the verdict was based entirely on circumstantial evidence and that the State did not negate all reasonable hypotheses of innocence.

At the outset, we note that Ms. Buteaux is correct in that there was no eyewitness to her theft or a paper trail showing the money leaving the convenience store and going into her account. The verdict, therefore, was rendered on circumstantial evidence, and the question before this court is whether that evidence was sufficient to support the convictions.

In Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court set forth the constitutional standard for testing sufficiency of the evidence, requiring that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Pursuant to La.R.S. 15:438, "[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed,
a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Prosser, [ LAW OF TORTS ], at p. 212.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Chism , 436 So.2d 464, 469 (La.1983).

As noted above, the jury herein found Ms. Buteaux guilty of three counts of theft, which La.R.S. 14:67(A) defines as:

the misappropriation or taking of any thing of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

In reviewing the jury's verdicts, we are not required by constitutional law to determine whether we believe that the evidence establishes guilt beyond a reasonable doubt or even whether we believe the witnesses. Jackson , 443 U.S. 307, 99 S.Ct. 2781 ; State v. Mussall , 523 So.2d 1305 (La.1988). Discretion in determinations of credibility is vested in the jury, which may accept or reject testimony within the bounds of rationality, and we will only impinge upon its discretion "to the extent necessary to guarantee the fundamental protection of due process of law." Mussall , 523 So.2d at 1310. Rather, we are charged in this case with reviewing the record to determine whether the evidence and the reasonable findings and inferences permitted by that evidence were sufficient to exclude every reasonable hypothesis of innocence. Chism , 436 So.2d 464.

To support the convictions, the State had to prove (1) a taking (2) of a thing of value (3) that belongs to another, (4) with the intent to permanently deprive the other of the thing. Through the admission of the computer-generated daily reports from the cash registers, the daily reconciliation sheets, and the daily deposit slips, the State presented sufficient proof that thousands of dollars were taken from the store from January 1, 2011, through April 31, 2013, and never returned. This in uncontroverted. What is in question is the identity of the perpetrator.

Our review of the record reveals that the perpetrator of the theft was proven by findings and inferences permitted by the evidence that, for the three years discussed above, Ms. Buteaux had almost exclusive access to the cash and checks in the safe and admittedly prepared the daily deposits and handwritten reconciliation sheets for that time period. From January 2010, to July 2011, her monthly bank statements consistently and substantially exceeded her reported income. In an effort to explain why there was significantly more money in her account than her reported income, Ms. Buteaux testified that her son and sisters, who did not testify at trial, and her boyfriend, who was deceased at the time of trial, gave her money.

At trial, Mr. Musso was questioned about other employees' access to the cash deposits, and he testified that no other employee had access to the cash deposited in the safe or prepared the cash deposits or reconciliation sheets. This fact was not refuted by Ms. Buteaux who testified that only she and Ms. Musso prepared the cash deposits and had access to the cash drop part of the safe. She further admitted that she filled out the daily reconciliation sheets and corrected the sheets prepared by Ms. Musso in her absence.

Moreover, the evidence showed the discrepancies between the computer-generated revenue statements and the deposits, while at the same time revealing the consistencies between the actual deposits and the reconciliation sheets prepared by Ms. Buteaux. The consistencies were not present, however, when Ms. Musso prepared the reconciliation statements, and any overages were only rectified when Ms. Buteaux returned and corrected Ms. Musso's calculations.

The testimony and evidence further demonstrated how daily computer-generated shift change reports would have documented as well as alerted both Ms. Buteaux and Ms. Musso if any "cashier was short." And the discrepancies at issue herein were clearly evident when comparing the daily deposits, over which the cashiers had no control, to the difference between the computer-generated revenue minus the paid-outs and charged amounts. There is no dispute that the paid-ins were not supposed to be calculated in the reconciliation sheets under the Shell formula, and yet Ms. Buteaux admitted that she continued to include that figure in her daily reconciliations. Her only explanation was that she was never told not to include it. Significantly, though, the amount that should have been deposited under the Shell formula and the actual deposits did not line up until Ms. Musso took over the preparation of the daily reconciliation sheets and omitted the previously included paid-in figures.

After hearing all the testimony, the jury apparently did not credit Ms. Buteaux's testimony and likewise rejected the defense's theory that the owners of the convenience store conspired to report loss of money by theft for the sole purpose of collecting insurance money. It was well within the jury's discretion to make these rational determinations based on the evidence and testimony.

Viewing the evidence in a light most favorable to the prosecution, we find that, though circumstantial, the evidence was sufficient for the jury to find the essential elements of the crime of theft perpetrated by Ms. Buteaux and that the State negated all reasonable hypothesis of innocence. Accordingly, we conclude that the evidence was sufficient to support an ultimate finding by the jury that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence, and, therefore, the evidence was sufficient to sustain the verdict of three counts of theft beyond a reasonable doubt.

V.

CONCLUSION

For the foregoing reasons, we affirm Ms. Buteaux's convictions and sentences, but remand this matter to the trial court for the establishment of a payment plan for the $89,186.63 restitution with instructions that this plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      In the amended bill of information, the State charged Ms. Buteaux with three counts of theft of $1,500.00 or more, committed "including and through the dates of January 1 through December 31 of 2011" (Count # 1), "including and through the dates of January 1 through December 31 of 2012" (Count # 2), and "including and through the dates of January 1 through April 30, 2013" (Count # 3).

      In brief, the State argues that Ms. Buteaux waived "this assignment by failure to adequately brief the issue." See Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4). However, we find that, though sparsely argued, Ms. Buteaux has sufficiently briefed this issue so to preserve her appeal.


author: KYZAR, Judge

text:
    William Terry EBARB and Dewanna N. Ebarb v. The UNOPENED SUCCESSION OF Alfair Jones SEPULVADO, et al.
    Norman Michael Sepulvado v. William Terry Ebarb, et al.
    17-711 17-712
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
    Charles W. Seaman, Seaman Law Firm, P.O. Box 835, Natchitoches, LA 71458-0835, (318) 352-7821, COUNSEL FOR PLAINTIFF/APPELLANT: Norman Michael Sepulvado
    Ronald D. Brandon, Brandon Law Firm, P.O. Box 216, Many, LA 71449, (318) 256-5910, COUNSEL FOR DEFENDANTS/APPELLEES: William Terry Ebarb, Dewanna N. Ebarb
    Rebecca L. Riall, Riall Law Firm, P.O. Box 563, Zwolle, LA 71486, CURATOR FOR DEFENDANTS/APPELLEES: Unopened Succession of Alfair Jones Sepulvado, Unopened Succession of Anthonita Sepulvado Wilkerson, Unopened Succession of Williard W. Wilkerson
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perrel, Judges.
   KYZAR, Judge

In these consolidated appeals, Norman Michael Sepulvado, Sr. (Michael) appeals the trial court judgment finding that he failed to prove ownership of nineteen acres of property by thirty-years acquisitive prescription. For the following reasons, we affirm the trial court's judgment.

Discussion of the Record

This litigation began when William Terry Ebarb and his wife, Dewanna N. Ebarb ("the Ebarbs"), filed suit requesting that a nineteen-acre tract of land located in Sabine Parish, of which they owned an undivided interest, be partitioned by licitation. The suit named as defendants, the Unopened Succession of Alfair Jones Sepulvado, aka Alfor Jones Sepulvado, the Unopened Succession of Anthonita Sepulvado Wilkerson, and the Unopened Succession of Willard W. Wilkerson. After being appointed curator and succession representative of all three defendant unopened successions, the appointed attorney answered with a general denial as to the Successions of Willard Wilkerson and Alfair Sepulvado, but answered indicating that Michael, who had acquired the interests of the heirs of Anthonita Sepulvado, was the proper defendant to answer therefor. The Ebarbs then filed an amending petition naming Michael as a defendant to the partition suit in lieu of the Unopened Succession of Anthonita Sepulvado Wilkerson. Michael answered the suit and filed a reconventional demand, claiming ownership of the entire property by virtue of thirty-years acquisitive prescription. He also filed a separate petition for declaratory judgment making the same claim of ownership of the property by acquisitive prescription, in answer to which the Ebarbs filed a general denial. The two actions were consolidated for trial purposes by the trial court.

The tract of land at issue is described as follows:

A CERTAIN TRACT OF LAND, twenty-two (22) acres of land in the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of Section 32, Township 8 North, Range 13 West Sabine Parish, Louisiana, more particularly described as beginning at a point 35 yards West of the Northeast corner of above described forty, then run West 240 yards, then South 440 yards to South line of forty; then run East 240 yards to line of land belonging to Paul Sepulvado; then run North 440 yards to place of beginning, containing 22 acres, more or less, with the improvements thereon, situated in Sabine Parish, Louisiana.
LESS AND EXCEPT
Beginning 996.2 feet South of the Northwest corner of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of Section 32, Township 8 North, Range 13 West, run thence East 520.5 feet to a stake set for corner, thence run North to the North right-of-way line of existing graded road (a distance of approximately 128 feet), thence East a distance of 375 feet, thence North 348.48 feet, thence West 375 feet, thence South along the East line of Johnny Ebarb property a distance of 348.48 feet to the place of beginning, together with all buildings and improvements situated on said tract of land, situated in Sabine Parish, Louisiana.
The total acreage being 19 acres, more or less.

Following a January 13, 2017 trial on the merits, the trial court held that Michael failed to prove that he had acquired the property by thirty-years acquisitive prescription. It then rendered judgment in favor of the Ebarbs, ordering that the property be partitioned by licitation. It is from the trial court's March 21, 2017 final judgment that Michael appeals, asserting the following assignments of error in the form of issues presented for review:

(1) What was the effect of the failure of the Ebarb's [sic] in their Answer filed in Docket Number 67,138 to not set forth an affirmative defense as mandated by LSA-CCP Article 1005.
(2) Did NORMAN MICHAEL SEPUVLADO acquire, by acquisitive prescription the ownership of the nineteen acres in controversy.
(3) Is the property susceptible of being partitioned in kind.

Based on the fact that Michael agrees that the property is not susceptible of being partitioned in kind, we need not address his third assignment of error.

OPINION

The manifest error standard of review was recently reviewed by the supreme court in Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-16, wherein the court stated:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'n , 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co. , 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott , 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge's or jury's factfinding conclusion was a reasonable one. Rosell v. ESCO , 549 So.2d 840, 844 (La.1989) ; Canter v. Koehring Co. , 283 So.2d 716, 724 (La. 1973).

Affirmative Defenses

In his first assignment of error, Michael asserts that the Ebarbs failed to plead an affirmative defense to his assertion of ownership by thirty-years acquisitive possession, in accordance with La.Code Civ.P. art. 1005. Thus, he claims that all defenses to his asserted possession of the property were essentially waived, and he should have been declared the owner of the nineteen-acre tract of land. Louisiana Code of Civil Procedure Article 1005 provides as follows:

The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as a peremptory exception or as an incidental demand, or a peremptory exception as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.

In Fin & Feather, LLC v. Plaquemines Parish Government , 16-256, pp. 6-7 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033 (alteration in original) the fourth circuit stated:

"Louisiana jurisprudence defines an affirmative defense as a defense that 'raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action.' " Bienvenu v. Allstate Ins. Co. , 01-2248, p. 5 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080, quoting Allvend, Inc. v. Payphone Commissions Co. , Inc. , 00-0661, p. 3 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 29. "Generally, an affirmative defense must be pleaded or it is waived."
Allvend , 00-0661, p. 6, 804 So.2d at 30. However, "[i]mplicit in that definition is the conclusion that a defendant is not required to raise an issue as an affirmative defense if it does not raise a 'new matter.' " Bienvenu , 01-2248, p. 5, 819 So.2d at 1080. The purpose of requiring that affirmative defenses are pled "is 'to give fair notice of the nature of the defense and thereby prevent a last minute surprise.' " Id. , 01-2248, p. 6, 819 So.2d at 1080, quoting Allvend , 00-0661, p. 6, 804 So.2d at 30.

Michael asserts in brief that "[a]ffirmative defenses in this particular instance ... would have been that the possession was not continuous, was not uninterrupted, was not peaceable, was not public and/or was not unequivocal[,]" citing La.Code Civ.P. art. 3476. We disagree.

In Johnsa v. Edwards , 582 So.2d 1280, 1283 (La. 1991), the supreme court distinguished between affirmative defenses necessary to defeat a claim versus ordinary defenses:

We have concluded, in another context, that a defendant's attempt to defeat a plaintiff's action by disproving an essential element of the plaintiff's claim, where the attempt neither raised a new matter nor assumed the allegations in the petition to be true, is in reality a negative defense which seeks to refute an essential allegation of the plaintiff's petition. Keller v. Amedeo , 512 So.2d 385, 388 (La.1987). An affirmative defense, by contrast, raises new matters which, assuming the allegations in the petition to be true, constitute a defense to the action and will have the effect of defeating plaintiff's demand on its merits. Keller , 512 So.2d at 387 ; Webster v. Rushing, 316 So.2d 111, 114 (La.1975). Unlike, for example, the affirmative defenses of "discharge in bankruptcy", see Rider v. Fontenot , 463 So.2d 951, 956 (La.App. 3rd Cir.1985), or, in the criminal context, "justification," see State v. Cheatwood , 458 So.2d 907, 910, 910 n. 4 (La.1984), neither of which concern legal and factual questions raised by plaintiff's petition (or the state's indictment), but which instead raise another legally sufficient ground to defeat an action, Reliance's proffered testimony aims directly at an essential element of the purchasers' claim (causation) and, if believed by the fact-finder, could undermine and would refute that element of the purchasers' case.

In order to prove ownership of the property by thirty-years acquisitive prescription, Michael had the burden of proving that his possession of the property was continuous, uninterrupted, peaceable, and public or unequivocal. The defense of any of these elements is merely a negative defense, which does not involve raising new matters to defeat the claim. Thus, the Ebarbs' general denials of Michael's claims of possession, sufficient to acquire ownership by acquisitive prescription, were adequate.

Additionally, the failure to specifically plead an affirmative defense does not end the inquiry or support a verdict in favor of a plaintiff, who may or may not have proof sufficient to support his claim. The failure of the plaintiff to object to any evidence presented by the defendant, which should have been affirmatively pled, results in an expansion of the pleadings. The plaintiff must object to any evidence presented by the defense that should have been pled affirmatively in order to defeat the demands of the plaintiff.

Our jurisprudence provides that even when an affirmative defense has not been pleaded by the defendant, if the plaintiff fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the pleadings are considered to have been enlarged to include the affirmative defense, and the court can act as though the affirmative defense was pleaded. DLJ of Louisiana No. 1 v. Green Thumb. Inc ., 376 So.2d 121 (La.1979). Thus, even if we assume arguendo , that Lombardino in the case at bar failed to properly plead the affirmative defense of extinguishment, despite specifically pleading the affirmative defenses of lack of consideration and work not completed in accordance with the agreement, we conclude that Audio Plus's failure to object to Lombardino's testimony regarding the nature of the contract and payments made thereon would enlarge the pleadings to include extinguishment.

Audio Plus, Inc. v. Lombardino , 47,488, p. 7 (La.App. 2 Cir. 9/20/12), 105 So.3d 725, 729.

Michael failed to object to any evidence offered by the Ebarbs, which should have been affirmatively pled; thus, he cannot complain about that evidence now on appeal. Accordingly, we conclude that this allegation of error lacks merit.

Ownership

In his second assignment of error, Michael argues that the trial court erred by finding that he failed to prove ownership of the property by thirty-years acquisitive prescription. He argues that he acquired title to the property by adverse possession commencing on January 8, 1979, when his aunt. Elverna Marie Sepulvado Sandifer, conveyed the entire tract of property to his mother, Emma. Michael asserts that from January 8, 1979, until Emma's donation to him on October 1, 2014, the property was used "exclusively, notoriously, and to the exclusion of everyone else," by either Emma or him and "without interruption of any kind."

The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership. LSA-C.C.P. art. 3651 ;
Lafourche Realty Co., Inc. v. Duard Eymard Co., Inc. , 93-1278 (La.App. 1st Cir. 6/24/94), 638 So.2d 1138, 1139, writ denied , 94-1991 (La. 11/11/94), 644 So.2d 390. To obtain a judgment recognizing his ownership of immovable property, the plaintiff in a petitory action must: (1) prove that he acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession of the property; or (2) prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. Therefore, the first issue that must be determined in a petitory action is the question of current possession. Mt. Everett African Methodist Episcopal Church v. Carter , 96-2591 (La.App. 1st Cir. 12/29/97), 705 So.2d 1179, 1181. The defendant's possession, or lack of it, determines the burden of proof imposed on the plaintiff. See LSA-C.C.P. art. 3651, Official Revision Comments (a); Joffrion v. Scioneaux , 506 So.2d 512, 513-14 (La.App. 1st Cir.1986), writ denied, 505 So.2d 1132 (La.1987). When the titles of the parties are traced to a common author, he is presumed to be the previous owner. LSA-C.C.P. art. 3653 ; LSA-C.C. arts. 531 and 532.

Griffin v. Daigle , 99-1942, pp. 6-7 (La.App. 1 Cir. 9/22/00), 769 So.2d 720, 724-25, writ denied , 00-3406 (La. 2/2/01), 784 So.2d 648 (footnote omitted).

Although Michael asserted ownership through a petition for declaratory judgment, the trial court judgment stated that the parties stipulated that the petition for declaratory judgment would be considered a petitory action. Thus, Michael, through this stipulation, judicially confessed that the Ebarbs were in possession of the property and determined his burden of proof. Accordingly, Michael was required to prove at trial that "he acquired ownership from a previous owner or by acquisitive prescription." Id.

Acquisitive prescription is the "acquiring of ownership or other real rights by possession for a period of time." La. C.C. art. 3446. Ownership of immovable property by acquisitive prescription may be acquired by either ten years of possession, La. C.C. art. 3473, or thirty years of possession, La. C.C. art. 3486. To acquire ownership with ten years of possession, there must be possession for ten years, good faith, just title, and a thing susceptible of acquisition by prescription. La. C.C. art. 3475. To acquire ownership with thirty years of possession, the thing must be susceptible of acquisition by prescription, and there must be continuous, uninterrupted, peaceable, public, and unequivocal corporeal possession for thirty years. La. C.C. art. 3476 ; La. C.C. art. 3486 ; Grieshaber Family Props., LLC v. Impatiens, Inc. , 10-1216 (La. App. 4 Cir. 3/23/11), 63 So.3d 189, 195.

Chauvin v. Shell Oil Co. , 16-609, pp. 10-11 (La.App. 5 Cir. 10/25/17), 231 So.3d 903, 910, writ denied , 17-1985 (La. 1/29/18), 233 So.3d 607.

This court, in Phillips v. Fisher , 93-928 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, 1307, writ denied , 94-813 (La. 5/6/94), 637 So.2d 1056, stated:

Immovable property may be acquired through thirty years acquisitive prescription without good faith or just title. La.C.C. art. 3486. The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to support it. Humble v. Dewey , 215 So.2d 378 (La.App. 3 Cir.1968). A possessor will only be considered as possessing that part of property over which he exercises actual, adverse, corporeal possession which is continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds. La.C.C. art. 3476 ; Suire v. Primeaux , 363 So.2d 963 (La.App. 3 Cir.), writ denied , 365 So.2d 243 (La. 1978) ; Allen v. Martino , 529 So.2d 90 (La.App. 1 Cir. 1988). He must also prove that he intended to possess as owner, adverse to the actual owner, for the required thirty years. La.C.C. art. 3424.

The evidence presented at trial consisted of testimony by Mr. Ebarb and by Michael's wife, sister, brother, and cousin.

Mr. Ebarb testified that he owns 85% of the property at issue, based on calculations performed by his counsel, but that he was unsure of the percentage of property not owned by either him and his wife or Michael. He stated that he has lived three miles east of the property for thirty-nine years and that different persons have lived on the property during that time. Mr. Ebarb testified that Michael, who has lived on the property for several years, has a mobile home on the property. Previously, he stated that Cynthia Barnett lived there in an old house that was located on the property, and that Michael's great-grandparents, Tony and Angeline Sepulvado lived there. Mr. Ebarb testified that he purchased the property because he owns eighty acres, which adjoin the northwest side of the property.

Rosa Sepulvado, Michael's wife, testified that she and Michael have lived on the property continuously for sixteen years in a mobile home. She testified that Michael's great-grandparents, Tony and Angeline, lived on the property up until 1975, when they moved to Monroe. Thereafter, she stated that Michael's brother, Griffen, lived on the property from 1988 through 1995. Although no one lived on the property between 1975 and 1988, Rosa stated that Michael's mother, Emma Jean Sepulvado, and her immediate family utilized the property by paying the property taxes and electric and water bills for the property, and they put up Christmas lights, grew a garden, kept chickens and dogs, cut firewood, had four-wheeler trails, and hunted on the property. Rosa testified that Emma and her children would meet at the property and cook and eat there. She stated that Michael was given permission to live on the property by his mother, but she did not think that Emma asked any other family member for permission for Michael to live there. She said that Michael's aunts or uncles never voiced an opinion about him living on the property and that no other family members outside of Emma's family used the property. Rosa testified that in addition to living on the property, Michael posted the property from trespassing and would not let anyone on the property without his permission.

Emma testified that her mother, Anthonita, who died in 1986, was one of the owners of the property at issue. She stated that her grandparents, Tony and Angeline, last lived on the property in 1975. After they moved, she stated that she and her immediate family used the property exclusively since 1975. She stated that she took care of the property, took vegetables from the garden to her grandparents, and mowed the grass. She said that she also paid the electric and water bills and the property taxes. Emma testified that her children hunt on the property, and Michael cut firewood from the trees located on the property.

Emma, who had eight siblings and half-siblings, testified that she did not ask permission of any of her aunts, uncles, or cousins for Michael to move onto the property. After he did so, she stated that she conveyed her entire interest in the property to him. She said that all of her five living siblings agreed that he could live on the property. However, she qualified her statement by stating that no one ever questioned him living on the property because he took care of it. Emma testified that although her family members knew Michael was living on the property, none of them ever said anything about him being on the property. She stated that it was the same when Griffen lived on the property between 1988 through 1995.

Emma testified that her cousin, Wilson J. Sepulvado, called her two years ago and told her that Michael needed to move from the property after he started having trouble with a neighbor. She stated that she told Wilson, "I've paid the taxes, and now y'all doing this to me and my family." Prior to that, she stated that she never discussed whether it was okay for Michael to live on the property. She said that she thought that because she paid the taxes on the property that it was okay for Michael to live there. Emma testified that she was so upset at Wilson that she did not tell Michael what had occurred. After this incident, she stated that she transferred her property into Michael's name.

Angela Sepulvado Martinez, Michael's sister, testified that Michael and Rosa moved onto the property approximately seventeen years ago. She stated that she lives three miles from the property and that she has visited Michael and Rosa there. She stated that the only persons who have lived on the property before Michael and Rosa were her brother Griffen and her great-grandparents, Tony and Angeline. Angela testified that she was not aware of anyone else living on the property since 1975, and she stated that only her immediate family has used the property since that time.

Angela testified that her family keeps a garden on the property, that her mother pays the property taxes and water and electric bill, and they hunt and ride four-wheelers on the property. She said that she was not aware of any other heirs using the property and that she would have known had they been on the property. Angela testified that although she does not associate with her, she did not believe that Cynthia Barnett, Emma's sister, lived on the property. She further stated that she did not know if any other family member gave permission for Michael to live on the property.

Griffen, Michael's brother, testified that he lived on the property between 1988 and 1995, first in a mobile home and then in the house located on the property. He stated that after his great-grandparents moved from the property in 1975, his mother kept up the property. He said that no other family members, other than his immediate family, helped with the property and that he would have known if they had gone on the property.

Griffen testified that he moved on the property in 1988, after his 1987 divorce and that he did not ask permission of any family member before doing so. He stated that no other family member came onto the property during the seven years he lived there. Griffen testified that he used the property as though he owned it during that time. He stated that he and his family cut firewood, grew gardens, hunted, and used the property for recreational purposes. Griffen testified that although he knows Wilson Sepulvado, he does not talk to him. He said that he did not know if Wilson gave Michael permission to move onto the property, and he was unware of the telephone conversation in which Wilson told Emma that Michael needed to move off the property.

Griffen testified that the property used by his family was where the family home was located, and it was intended for Anthonita. He stated that the map of the family property was numbered by blocks and that the block including the family home is the property at issue in this matter. He said that paperwork was drawn up by the family, but that it was never properly finalized. Griffen testified that his family never touched any of the property intended for other family members.

Timothy Woodrow Meshell, Michael's first cousin, testified that Emma and her family have used the property for years. He stated that he used to spend time on the property during the summers or weekends between the 1970s and up to 1980, when his grandmother, Anthonita, would visit the property. Mr. Meshell testified that Anthonita took care of the property until she died, after which Emma and her family took over caring for the property.

Mr. Meshell testified that his mother, Carol Sue Larue, who was Emma's sister, was probably still alive when Michael moved onto the property. He stated that he and his mother never discussed the issue of Michael living there. He said that he considered the property as family property, so it was not necessary for family members to seek permission before living on the property. Mr. Meshall testified that he would have granted Michael permission to live on the property had he asked him. He stated that Michael never informed him that he intended to live on the property. He said that he knew that Emma's children were on the property and that he was always welcome to visit while they lived there. Mr. Meshell testified that Michael has lived on the property since approximately 2000, but he did not recall Cynthia Barnett living on the property.

Mr. Meshell testified that he thought that the property would always be owned by their family and that this was what his mother and his grandmother would have wanted. He stated that he felt that he could have lived on the property if he wanted to do so. Mr. Meshall testified that he and his four sisters sold their interest in the property to the Ebarbs. He stated that his older sister arranged the sale and that he thought they were selling the property to Michael. He said that he never thought about whether he owned an interest in the property before selling to the Ebarbs. He said that he only learned that the property was sold to the Ebarbs when he received his check. Mr. Meshall testified that both he and his younger sister would not have sold their interest in the property had they known it was being sold out of the family.

Mr. Meshell testified that his grandmother, Anthonita, owned more of the family property after she bought out some of her siblings. He stated that he never knew how many acres were included in the property until a few years before, and he never knew what percentage of the property he owned. He further said that he and his sisters never received notice that their interest in the property was being taken by a family member.

The evidence introduced during the trial consisted of numerous property transactions, a Sepulvado family history, and a flow chart outlining the ownership of the property.

In granting judgment in favor of the Ebarbs, the trial court made the following finding of fact in its March 21, 2017 final judgment:

Mr. Norman Michael Sepulvado cannot establish 30-years acquisitive prescription for the requisite years immediately preceding the year 2000 because his mother, Ms. Frances Emma Jean Ezernack Sepulvado, was not a co-owner who had commenced to possess the entire property for herself by overt and unambiguous acts sufficient to give notice to her co-owners pursuant to La.Civ.Code arts. 3439 and
3478, which is the only exception to the general rule that an owner in indivision cannot acquire by prescription the rights of his co-owners in the property held in common[.]

After reviewing the record in its entirety, we find that the trial court's judgment finding that Michael failed to prove ownership of the property by thirty-years acquisitive prescription was not manifestly erroneous. We first note that Michael misstates the evidence by stating that Elverna Marie Sepulvado Sandifer conveyed the entire tract to Emma on January 8, 1979. A review of the deed in question reveals that Elverna only conveyed her undivided interest in the property to Emma, which based on the January 13, 1978 judgment of possession from Tony Sepulvado's succession, only consisted of an undivided one-eighth interest in the property.

Louisiana Civil Code Article 3478 provides:

A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription.
Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself.

In Andras v. Thibodeaux, 13-1906, pp. 5-6 (La.App. 1 Cir. 10/30/14), 157 So.3d 767, 770-71, writ denied , 15-928 (La. 10/30/15), 204 So.3d 179, the court stated with regard to thirty-years acquisitive prescription.

Ownership and other real rights in immovables may be acquired by the prescription of thirty years without need for just title or good faith. La. C.C. art. 3486. A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself. La. C.C. art. 3438. It is the well-settled jurisprudence of this state that owners in indivision cannot acquire by
prescription the right of their co-owners in and to property held in common. British Am. Oil Producing Co. v. Grizzaffi , 135 So.2d 559, 564 (La.App. 1 Cir.1961). A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription. La. C.C. art. 3478.
Documents recorded in the public records that are translative of title, even if invalid, qualify as overt and unambiguous acts sufficient to put co-owners on notice of adverse possession. See Succession of Seals , 243 La. 1056, 150 So.2d 13 (1963). In Succession of Seals , the recordation of a warranty deed was found to be sufficient notice of adverse possession against co-owners. In Towles v. Heirs of Morrison , 428 So.2d 1029, 1032 (La.App. 1 Cir. 1983), the court found that an act of partition was sufficient notice of adverse possession against co-owners. Where one co-owner goes into and continues possession by reason of a deed translative or a partition declarative of title, the co-owner's possession is regarded as hostile to any claim of his co-owner, rebutting the presumption of precarious possession. Towles v. Heirs of Morrison , 428 So.2d at 1031.
In the present case, none of the intervenors had title or any recorded document translative of title. Mere occupancy, use, payment of taxes, and similar acts of possession will not suffice to constitute notice of adverse possession to co-owners. British Am. Oil Producing Co ., 135 So.2d at 564 ; Headrick v. Lee , 471 So.2d 904, 909 (La.App. 2d Cir. 1985) The burden rests on the co-owner claiming acquisitive prescription to prove not only that his possession was in fact adverse, but that knowledge of such contrary possession was made known to the other co-owners. British Am. Oil Producing Co ., 135 So.2d at 566-567.
In Southern Natural Gas Co. v. Naquin , 167 So.2d 434, 437-439 (La.App. 1 Cir.), writ refused , 246 La. 884, 168 So.2d 268 (1964), the court ruled that farming the land, cutting wood, trapping crawfish, paying taxes, and granting mineral leases was insufficient to constitute notice of adverse possession to co-owners. In Headrick , the court found that living on the property since 1910, fencing it, growing crops, raising cattle, and cutting timber was mere occupancy and use. Headrick , 471 So.2d at 907-909.

Thus, the January 8, 1979 deed, which was executed by a co-owner, rather than a non-owner; was insufficient to put all of the property's owners on notice that Emma intended to commence possessing the property for herself. Moreover, all of the alleged acts of ownership performed by Emma and her family were mere acts of occupancy and use, rather than acts of ownership. Accordingly, we affirm the trial court's judgment finding that Michael failed to prove ownership via thirty-years acquisitive prescription.

DISPOSITION

Based on the foregoing reasons, the judgment of the trial court is affirmed, and the costs of this appeal are assessed to Norman Michael Sepulvado.

AFFIRMED.

      Her eight siblings and half-siblings are: Virginia Gail, Carol Sue, James Michael, Frank Anthony Cascio, Victor Joe Cascio, Cynthia Ann Barnett, Debbie Woodard, and Thomas Woodard.

      We note that neither Michael's not the Ebarbs' appeal briefs included references to specific page numbers in the record, as required by Uniform Rules-Courts of Appeal, Rules 2-12.4 and 2-12.5.


text:
    Brenda BROWN, Clinton Stacker, and Keiotia Brown, individually and on behalf of her Minor Children, Dwayne Brown, Xyriel Brown and Trey'Jon Watson v. Homer SARGENT, Evans Environmental and Geological Science and Management, LLC, Discovery Property and Casualty Insurance Co., Enterprise Leasing Co.
    NO. 2017-CA-0838
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
   Brenda Brown, 4127 Paris Avenue, New Orleans, LA 70122, PLAINTIFF/APPELLANT/IN PROPER PERSON

Donna Powe Green, Brittany F. Mallion, GREEN LAW FIRM, P.A., 32 Office Park Drive, P.O. Box 17947, Hattiesburg, MS 39404, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )

Judge Daniel L. Dysart Brenda Brown appeals the involuntary dismissal of her lawsuit by the trial court. For the reasons that follow, we affirm.

BACKGROUND:

On February 25, 2007, the vehicle which Ms. Brown was driving was struck from behind by a vehicle being driven by Homer Sargent, as she was stopped at a red light on Bayou Road at N. Broad Street in New Orleans. Mr. Sargent was working for Evans Environmental and Geological Science and Management, LLC, at the time of the accident. Both vehicles had been rented from Enterprise Car Rental.

In her petition, Ms. Brown alleged that as a result of the accident, she sustained personal injuries that entitled her to damages for past, present and future physical pain and suffering, and past, present and future lost wages and earning capacity. She also sought damages for diminished quality of life and severe emotional and mental distress.

After many years of litigation, this matter went to trial on June 20, 2016, with Ms. Brown representing herself. At the close of plaintiff's case, the defendants moved for an involuntary dismissal pursuant to La. Code Civ. Proc. art. 1672 B. After a brief recess to allow the trial court to review Ms. Brown's evidence, the trial court allowed the parties to argue the merits of the motion for involuntary dismissal. The trial court granted the motion and gave oral reasons for its decision.

Ms. Brown now appeals.

DISCUSSION:

In her sole assignment of error, Ms. Brown argues that the trial court erred in failing to find that she should be compensated under the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:851, et seq.

The Louisiana Motor Vehicle Safety Responsibility Law sets forth a mandatory, comprehensive scheme to provide financial protection to those involved in motor vehicle accidents. See Adams v. Thomas, 98-2003, 98-2005, pp. 3-4 (La.4/13/99), 729 So.2d 1041, 1043 ; Simms v. Butler , 97-0416, p. 2 (La. 12/2/97), 702 So.2d 686, 687. The statutes require that the owner of every motor vehicle registered in this state, with limited exceptions, obtain proof of security prior to registration, renewal of registration, application for an inspection certificate, and/or application for a driver's license.

As these statutes clearly have no application to the case at hand, we find no merit to Ms. Brown's assignment of error. However, as she is proceeding pro se , we will address the merits of the trial court's judgment granting an involuntary dismissal.

An involuntary dismissal should be granted only if the plaintiff fails to prove his case by a preponderance of the evidence. Kelly v. Housing Authority of New Orleans, 02-0624, p. 5 (La.App. 4 Cir. 8/14/02), 826 So.2d 571, 574. The relevant criteria for review of a trial court judgment granting an involuntary dismissal are: 1) The judge must weigh and evaluate all the evidence presented to that point and determine whether the plaintiff established a prima facie case by a preponderance of the evidence; 2) Unlike the motion for directed verdict in a jury trial, the trial judge reviews the evidence without any special inference favorable to the party opposed to the motion; and, 3) A dismissal pursuant to Article 1672 should not be reversed absent manifest error. Id., 02-0624, p. 6, 826 So.2d at 575 (quoting Morgan v. City of New Orleans , 94-0874 (La.App. 4 Cir. 12/15/94), 647 So.2d 1308 ).

Our review of the record indicates that the trial court was extremely lenient with Ms. Brown, and that defense counsel extended every courtesy to her as a pro se litigant. At a pre-trial conference on May 12, 2016, which the trial court placed on the record, defense counsel agreed to allow Ms. Brown to enter medical records into evidence although they had not been properly certified. Counsel also agreed to meet with Ms. Brown ahead of trial to agree on stipulations for admission of certain evidence. The trial court explained to Ms. Brown that cut-off dates for discovery are necessary to prevent prolonged litigation, and denied Ms. Brown's requests to enter medical records obtained after the cut-off. Defense counsel also attempted to settle the case, stating:

Your Honor, one last shot at discussing settlement. We're nine years into this case. There is no evidence that has come forward that's going to justify the two and a half million dollar demand we have. I have an unseemly amount of authority and I've already offered it based on things that happened before I ever got involved in this lawsuit. Can the Court provide us any assistance in discussing the merits of settlement and not rolling the dice for trial?

The judge asked Ms. Brown if she was interested in discussing settlement, explaining that it was completely up to her. Ms. Brown responded, "No, I'm not, Your Honor."

The case proceeded to trial on June 20, 2016. Ms. Brown called two witnesses: Keiotia Brown Watson, Ms. Brown's daughter, a former plaintiff and a passenger in the vehicle at the time of the accident; and, Homer Sargent, a defendant and the driver of the offending vehicle. In addition, she offered excerpts from the deposition of her treating physician, Dr. Craig Kuhns; a photo of what she claimed was proof of the damage to the vehicle; a letter from the Social Security Administration, which was offered as proof of her disability; a news article offered as proof of quantum; and, a document identifying the corporate headquarters of defendant, Evans Environmental.

Ms. Watson was called as a fact witness. Ms. Watson testified concerning the events surrounding the accident. On cross-examination, she denied having any knowledge of Ms. Brown's current condition. She knew Ms. Brown had seen a physician and that she claimed to have back and neck injuries, but she knew nothing beyond that.

Mr. Sargent was questioned on direct as to the facts surrounding the accident. Defense counsel reserved questions until the defense's case-in-chief.

Ms. Brown designated excerpts from the deposition of Dr. Kuhns to be entered into evidence. Dr. Craig Kuhns, a board certified orthopedic surgeon, with whom Ms. Brown treated in Missouri, testified that he could not determine the source of Ms. Brown's pain, but opined that it was related to C5-6 arthritis and stenosis. He stated that he did not have any of Ms. Brown's prior medical records or x-rays, and that without those, he could not state whether Ms. Brown's need for surgery was a result of the accident in question, or whether it was due to pre-existing degenerative problems that progressed on their own.

At the close of plaintiff's case, the defendants moved for an involuntary dismissal. The trial court explained to Ms. Brown in great detail exactly what it meant to have her case dismissed involuntarily. The trial court recessed to read and review the evidence submitted by Ms. Brown. Upon reconvening, the trial court granted the involuntary dismissal and stated:

I went through the elements of the case that you have to prove in order to win, and you have to prove it in your case. ...
And you have not proven that you suffered injuries that were related to this accident. I read the pages of Dr. Kuhns' deposition that you cited and he repeatedly says he can't say one way or the other. It's not enough to prove that something is possible, if he says it's possible that it happened. ...
You've got to tilt the scales in your favor. It's got to be more probable than not, and you haven't met that. And you need to prove that with competent medical evidence, and you haven't offered [any].

Based on our review of the record and the factual findings of the trial court, we cannot say that the trial court's findings were manifestly erroneous.

Accordingly, we affirm the judgment granting the defendant's motion for involuntary dismissal.

AFFIRMED

      Originally, Ms. Brown's passengers and their minor children were plaintiffs in this case, but they voluntarily dismissed all claims against all defendants prior to trial, leaving Ms. Brown as the sole plaintiff. Additionally, Enterprise Leasing Company was voluntarily dismissed from the suit by consent judgment.

      La. Code Civ. Proc. art. 1672 B provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.