author: McClendon, j. McDONALD, J.

text:
    Michael R. DESHOTELS v. John WHITE, in his Individual and Official Capacities, as Superintendent of the Louisiana Department of Education and the Louisiana Department of Education
    2016 CA 0889
    Court of Appeal of Louisiana, First Circuit.
    August 16, 2017

      J. Arthur Smith, III, Baton Rouge, Louisiana, Counsel for PlaintiffiAppellee, Michael R. Deshotels
    Troy A. Humphrey, G.M. Millet, Jr., Baton Rouge, Louisiana, Counsel for Defendants/Appellants, John White, in his individual Capacity and as Superintendent of the Louisiana Department of Education, and the Louisiana Department of Education
    Brian F. Blackwell, Charles L. Patín, Jr., Baton Rouge, Louisiana, Counsel for Amicus Curiae, Louisiana Association of Educators
    BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, MCDONALD McClendon, welch, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE CHUTZ, AND PENZATO, JJ.
   McClendon, j.

|2The defendants appeal a judgment awarding civil penalties to the plaintiff where the trial court determined that the defendants “arbitrarily and capriciously” failed to produce the documents sought through a public records request. For the following reasons, we amend the judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On Friday, February 6, 2015, Michael Deshotels submitted a public records request to John White, State Superintendent of Education, and to the Louisiana Department of Education (the Department), seeking “a copy of the October 2014 multi-stat report for all public schools in Louisiana, giving the actual total number of students enrolled in each grade including all various categories of ethnic groups and free or reduced lunch and other designations in each public school in Louisiana.” In his request, Mr. Deshotels specified that he did “not want the suppressed or rounded off enrollment numbers.” In a response dated February 10, 2015, the Tuesday following the request, the Department provided averaged ranges as opposed to the actual number of students as requested.

On February 17, 2015, Mr. Deshotels, through counsel, again sought the same information with “the actual number of students” as opposed to “suppressed or averaged ranges of the actual statistics.” In a response dated March 18, 2015, the Department noted that it provided Mr. Deshotels with the “multi-stat in the form and fashion that is compliant with FER-PA,” or the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

On March 23, 2015, Mr. Deshotels, through counsel, again sought the unsuppressed documents. Mr. Deshotels, referencing 34 C.F.R. § 99.3, opined that | aFERPA did not prohibit disclosure because the personal identification of the students would not be disclosed. In a response dated March 30, 2015, the Department indicated that it could not release the requested information unsuppressed, reasoning as follows:

Pursuant to the policies and procedures established to ensure student privacy, the Department can only release the requested information in the suppressed form that has been provided to your client. That information, if not suppressed could alone or in combination, is subject to being linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.

The Department concluded that it was not its “intent to withhold public records, but rather to protect student privacy in accordance with the applicable laws, rules, and regulations within which the Department must comply.”

On April 15, 2015, Mr. Deshotels filed a “Petition for Injunctive Relief Pursuant to the Louisiana Public Records Act,” naming John White and the Department as defendants. In his allegations, Mr. Deshotels averred that in a prior action involving a similar request made by him, the trial court had previously ruled, in a judgment dated September 12, 2014, that the information sought was a matter of public record and the actual figures should be used. Mr. Deshotels asserted that the September 12, 2014 decision was not appealed. In his prayer for relief, Mr. Deshotels requested a preliminary injunction be issued to, among other things, require the defendants to produce the public records. Mr. Deshotels also sought an award of reasonable attorney’s fees and statutory damages in the amount of $100.00 per day for each day of the defendants’ violation of the Louisiana Public Records Act.

|4The matter was originally set for hearing on April 30, 2015. However, on that date, the defendants filed a peremptory exception raising the objection of no cause of action, resulting in the court setting a status conference and reassigning the matter. Defendants’ peremptory exception of no cause of action was subsequently heard and denied on October 6,2015.

On October 19, 2015, a hearing was held on Mr. Deshotel’s petition for injunctive relief. Both parties offered witnesses and evidence in support of their positions. At the hearing, Mr. Deshotels testified that the data he received from the Department in response to his public records request was useless because he needed actual figures to perform -a statistical analysis of student enrollment, graduation,' dropout, and transfer rates. Mr. Deshotels indicated that for approximately twenty years prior, the Department had supplied citizens with the actual student enrollment data and published this information on its website. Mr. Deshotels also noted that the defendants, even though they refused to provide the unsuppressed data, recognized that “it’s possible” to retrieve the unsuppressed information for Louisiana from the United States Department of Education (US-DOE). Further, Mr. Deshotels pointed out that the unsuppressed data-had been made available to at least fourteen entities, including various companies, non-profit agencies, and universities. Mr. Deshotels further noted that the defendants could not point to a specific regulation that would prohibit such. disclosure and were aware of the prior trial court ruling that was not appealed ordering such disclosure.

In support of the defendants’ position, Kim Nesmith, Director of Data Quality and Management for the Department, testified that the Department relied on communications with and publications of the USDOE to develop these suppression techniques. Ms. Nesmith conceded that one could not determine the identity of a child, the child’s social • security -number, the child’s date of birth, or the parents’ names from reviewing the documents alone, looking only at the unsuppressed information | ^pursuant to the request. Similarly, John White, Louisiana Superintendent of Education whose deposition testimony was introduced into evidence, indicated that the unsuppressed information does not include any detailed personal information about any student.

Ms. Nesmith, however, further testified that FERPA encompasses indirect personally identifiable information, and the Department must take into account that when one or more pieces of information are combined it would allow a reasonable person to identify a child. Ms. Nesmith indicated that when the reports are used together with other reports, or when a person reviewing the unsuppressed reports “simply know[s] a little data about the state,” the person reviewing the reports could determine the identity of the children. Regarding the 2014 multi-stats request, Ms. Nes-mith testified:

There are thirty-two different schools with a'hundred percent of their children that are economically disadvantaged. For me to release that data would indicate that anybody who has children going to that school would be economically . disadvantaged. Of those thirty-two, four of them also have a hundred percent children with disabilities; so I would then be saying to the public, everyone, if your child goes to this school, not only are they all economically disadvantaged, they also have a disability..

Ms. Nesmith also testified that it was at the USDOE’s request that these reports were taken off of the Department’s website.

Following the hearing, the trial court took the matter under advisement and signed a judgment on December 15, 2015. In its judgment, the trial court granted Mr. Deshotels’ petition for injunctive relief and ordered production of unsuppressed copies of the October 2014 multi-stat report. The trial court also awarded Mr. Deshotels attorney’s fees and costs of the proceedings. Additionally, the trial court found that the defendants acted arbitrarily and capriciously in failing to produce the records and ordered the defendants to pay Mr. Deshotels statutory penalties in the amount of $100.00 per day from February 16, 2015, until the public records are produced.

UThe defendants timely filed a motion for new trial on December' 23, 2015, which was summarily denied by the trial court on January 13, 2016. The trial court signed a judgment denying the motion for new trial on February 18, 2016.

On February 16, 2016, the defendants sought a suspensive appeal from the December 15, 2015 judgment.' In their appeal, the defendants have assigned the following as error:

1. The trial court erred in finding the Louisiana Department of Education arbitrarily and capriciously withheld public records.
2. The trial court erred in awarding . civil penalties under Louisiana Revised Statutes 44:35 against John White and the Louisiana Department of Education.

Mr. Deshotels has answered the appeal to seek additional attorneys’ fees for work associated with this appeal. Additionally, the Louisiana Association of Educators filed a motion for leave tó file- an amicus curiae brief, which this court granted.

MOTION TO DISMISS

Mr. Deshotels has filed a-motion to dismiss the defendants’ appeal, asserting that the appeal is untimely. Specifically, Mr. Deshotels avers that the trial court signed a judgment granting the. preliminary injunction on December 15, 2015, but the defendants did not move for an appeal until February 16, 2016, or more than 15 .days after the judgment was signed. See LSA-C.C.P. art. 3612. Mr. Deshotels contends that because a motion for new trial cannot be taken from an interlocutory judgment that grants a preliminary injunction, the motion for new trial here did not suspend the appeal delay. See Morris v. Transtates Petroleum, Inc., 258 La. 311, 321-22, 246 So.2d 183, 187 (La. 1971); Chauvin v. Matherne, 419 So.2d 1276 (La. App. 1 Cir. 1982).

We' note, however, that Mr. Des-hotels, by seeking to have certain documents produced, was in substance requesting a mandatory injunction rather than a prohibitory one. A mandatory injunction is so named because it commands the doing of some action and cannot be issued without a hearing on the merits. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. The jurisprudence has established that a mandatory preliminary injunction has the same basic effect as a permanent injunction, and therefore may not be issued on merely a prima facie showing that the party seeking the injunction can prove the necessary elements. Id. As such, a mandatory preliminary injunction may not be issued unless the party seeking the injunction proves by a preponderance of the evidence at a full trial on the merits in which the taking of evidence is not limited that he is entitled to the injunction. Id. at 664-65. Contrast this with a prohibitory preliminary injunction that may be issued on merely a prima facie showing that the party seeking the injunction can prove the necessary elements. Id. at 664. Given mandatory injunctions and prohibitory injunctions have different procedural rules and evidentiary burdens, one court has even recognized, as do we, that as a matter of law, it is not possible to issue a mandatory preliminary injunction. See Hyman v. Puckett, 15-0930 (La.App. 4 Cir. 5/4/16), 193 So.3d 1184, 1189.

Accordingly, despite Mr. Deshotels’ contention that the December 15, 2015 judgment cannot be interpreted as one granting a permanent injunction because the parties did not expressly agree to submit the case for a final decision, we recognize that the mandatory injunction can only be issued after a full trial on the merits and has the same effect as a permanent injunction. As such, the appeal delays from a mandatory injunction are the normal appeal delays as provided in LSA-C.C.P. arts. 3612(D), 1841, 1911, and 2123. Neither party challenges that the matter was decided after a full evidentiary hearing and that they were allowed to present all evidence to the trial court. |sMoreover, the December 15, 2015 judgment resolved all issues raised, including the payment of statutory penalties, attorneys’ fees, and litigation expenses. As such, we conclude that the judgment meets the requirements for being final for purposes of appeal and is subject to the ordinary appeal delays, rather than those provided in LSA-C.C.P. art. 3612. Accordingly, we deny Mr, Des-hotels’ motion to dismiss the appeal.

DISCUSSION

The right of access to the public records, which is guaranteed by the Louisiana Constitution, must be construed liberally in favor of free and unrestricted access. Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691, 694-95 and Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 125, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440. Because the right of access to public records is a fundamental right, guaranteed by the Constitution, access can be denied only when a law specifically and unequivocally provides otherwise. Capital City Press, L.L.C. v. Louisiana State University System Bd. of Sup’rs, 13-2001 (La.App. 1 Cir. 12/30/14), 168 So.3d 727, 736, writ denied, 15-0209 (La. 4/17/15), 168 So.3d 401. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. Id. at 736.

Louisiana Revised Statutes 44:32A provides in part: “The custodian shall present any public record to any person of the age of majority who so requests.” Regarding enforcement of this right, LSA-R.S. 44:35A provides:

Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

Ifllf the person seeking the right to inspect or to receive a copy of the public record prevails in his enforcement suit, the court shall award him reasonable attorney fees and other litigation costs. LSA-R.S. 44:35D. Further, at issue here, LSA-R.S. 44:35 authorizes additional damages and civil penalties, as follows:

E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

The first sentence of LSA-R.S. 44:35E(1) provides for actual damages if the custodian arbitrarily or capriciously withheld the requested record or failed to respond. In contrast, the trigger for a discretionary award of civil penalties in the second sentence is the failure of the custodian to properly respond to a requester within the three-day statutory period. Capital City Press, L.L.C., 168 So.3d at 743 (citing Innocence Project New Orleans v. New Orleans Police Dept., 13-0921 (La.App. 4 Cir. 11/6/13), 129 So.3d 668, 675. The trial judge must also find that the custodian’s failure to respond to the requester was unreasonable or arbitrary. Capital City Press, L.L.C., 168 So.3d at 743-44.

Louisiana Revised Statutes 44:32 provides, in part:

D. In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.

Here, Mr. Deshotels did not present any evidence that he sustained actual damages, as authorized by the first sentencie of LSA-R.S. 44:35E(1). Rather, the legal | ^authority for the award of penalties arises from the Department’s arbitrary failure to fully respond as authorized by the second sentence of LSA-R.S. 44:35E(1).

For a public records request, a civil penalty may be imposed only when the custodian unreasonably or arbitrarily fails to timely send the notification required by LSA-R.S. 44:32D. See LSA-R.S. 44:35E(1); Revere v. Reed, 95-1913 (La. App. 1 Cir. 5/10/96), 675 So.2d 292, 296; Washington v. Reed, 95-1067 (La.App. 1 Cir. 2/23/96), 668 So.2d 1313, 1314. That notification is necessary when the custodian determines the requested information is not a public record. See LSA-R.S. 44:32D; Revere, 675 So.2d at 296; Washington, 668 So.2d at 1314. In that event, the custodian must provide written notice to the requesting party within three days of the request, advising of the custodian’s determination, “the reasons therefor,” and “the basis under law which the custodian has determined exempts [the] record, or any part thereof, from inspection, copying, or reproduction.” See LSA-R.S. 44:32D. A civil penalty of up to $100.00 per day, exclusive of weekends and legal holidays, may be assessed “for each such day of such failure to give [the] notification,” if the failure is found to be unreasonable or arbitrary. See LSA-R.S. 44:35E(1).

Mr. Deshotels made a public records request on February 6, 2015, seeking figures for student enrollment in public schools. The Department refused to fully provide the requested information, eventually citing policies and procedures established to ensure student privacy. However, the legal basis for not producing the records was not given until March 18, 2015, well after the applicable three-day deadline as set forth in- LSA-R.S. 44:32D. Consequently, the first requirement for a penalty -is met, that is, a failure to provide a notification with a stated legal basis within the three-day period. Moreover, after reviewing the record, we conclude that the trial court did not err in finding the defendants’ delay to be unreasonable or arbitrary, especially in light of Mr. Deshotel’s specific request that unsuppressed figures be provided. Therefore, it was within the trial court’s discretion to impose a civil penalty.

However, wé find the trial court erred in imposing a penalty of $100.00 per day from February 16, 2015, until the records are produced. The penalty can be imposed only for each day. the defendant failed to give the proper notification. See LSA-R.S. |1144:35E(1). Exclusive of weekends and legal holidays, that period began on February 12, 2015 (the day following the expiration of the three-day deadline), and ended on March 17, 2015. The March 18, 2015 notice satisfied LSA-R.S. 44:32D and thus terminated the penalty period. Regardless of whether the defendants’ legal basis set forth in their notice was correct or incorrect, the Louisiana Public Records Act authorizes a penalty only for failing to provide the notification as required by LSA-R.S. 44:32, not for making the wrong determination. As such, the trial court should have imposed the penalty from February 12,2015 through March 17, 2015. We will amend the judgment accordingly.

Further, Mr. Deshotels filed a motion for this court to convene en banc to consider its prior ruling in Aswell v. Division of Administration, 15-1851 (La.App. 1 Cir. 6/3/16), 196 So.3d 90, writ denied, 16-1263 (La. 11/7/16), 209 So.3d 102 (three justices dissenting). We granted Mr. Deshotels’ motion and heard this matter en banc. In Aswell, this court determined that a response received within the statutory period, even if that response is “not entirely truthful,” would preclude recovery of the discretionary civil penalties. 196 So.3d at 95. In the instant case, unlike Aswell, there are no allegations that the defendants provided a response that was not truthful. Therefore, while we may disagree with the holding of Aswell, we are not required to address that issue in this case.

112Mr. Deshotels has answered the appeal to seek additional attorney’s fees on appeal. Because we find merit in part in the defendants’ argument and grant the defendants relief in part, we deny Mr. Deshotels’ answer to the appeal.

CONCLUSION

For the foregoing reasons, the trial court’s December 15, 2015 judgment is amended to reduce the penalty period to the period of February 12, 2015 through March 17, 2015. The trial court’s judgment is affirmed in all other respects. Also, Mr. Deshotels’ motion to dismiss the appeal is denied for the reasons stated above. Additionally, the costs of this appeal in the amount of $1,301.50 are assessed equally between appellants, the Louisiana Department of Education and John White, and appellee, Michael Deshotels.

JUDGMENT AFFIRMED IN PART AND AMENDED IN PART AND AFFIRMED AS AMENDED; MOTION TO DISMISS APPEAL DENIED; MOTION TO CONSIDER EN BANC GRANTED; ANSWER TO APPEAL DENIED.

Penzato, J. concurs

Guidry, J. concurs in the result.

Pettigrew, J. concurs

Chutz, J. concurs

McDonald, J. concurs with additional reasons.

Theriot, J. concurs

McDONALD, J.

Concurring:

hi concur and write separately to state my belief that the trial court’s imposition of the maximum statutory penalty of $100 per day was excessive in this case, when compared to a case where the records custodian does not respond at all. However, as pointed out in footnote 12 of the majority opinion, the defendants did not seek review of the amount of the penalty assessed per day; thus, the amount cannot be changed on appeal.

      . Mr. Deshotels is a retired educator who writes an internet newsletter or blog called "The Louisiana Educator.” He provides educators and parents the latest news on educational issues in Louisiana.

      . 34 C.F.R. § 99.3, which defines certain terms applicable to FERPA, defines “Personally Identifiable Information” as follows:
      The term includes, but is not limited to—
      (a) The student’s name;
      (b) The name of the student's parent or other family members;
      (c) The address of the student or student's family;
      (d) A personal identifier, such as the student’s social security number, student number, or biometric record;
      (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name;
      (f) Other information that, alone or in combination, is linked or linkable to a specific- student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
      (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

      . The record does not indicate why these particular entities were provided access. However, we note that certain entities statutorily qualify for the release of the records to them as recognized by FERPA. See 20 U.S.C. § 1232g(b)(l).

      . Ms. Nesmith indicated that while suppression was set forth in best guidance and best practice techniques produced by the USDOE, there was no such regulation concerning suppression unless it involved a cell size less than 10.

      . The December 15, 2015 judgment erroneously ordered production of the October 2015 multi-stat reports, but the judgment was amended on December 30, 2015, pursuant to a timely filed motion, to correct the error in the date to properly reflect that it was ordering production of the October 2014 multi-stat reports.

      . It áppears that the trial court applied the five-day period set forth in LSA-R.S. 44:35A, rather than the three-day period set forth in LSA-R.S. 44:32D,

      . On October 18, 2016, the motion to dismiss was referred to the panel to which the appeal was assigned.

      .Louisiana Code of Civil Procedure article 3612 provides, in pertinent part:
      B. An appeal may be taken as a matter of ' right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
      C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.

      . A prohibitory preliminary injunction is one that seeks to restrain conduct and may be issued without the showing of irreparable injury in certain cases. See Yokum v. Pat O'Brien’s Bar, Inc., 12-0217 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 81.

      . The language of the statute is unambiguous, and the civil penalty provision applies "for each such day of such failure to give notification.” LSA-R.S. 44:35E(1). It does not apply to the time frame for producing tire documents. Capital City Press, L.L.C., 168 So.3d at 743.

      . In its March 18, 2015 response, the Department specifically noted that it previously provided Mr, Deshotels with the “multi-stat in the form and fashion that is compliant with FERPA.” We find this response was sufficient to satisfy the requirements of LSA-R.S. 44:32D. We note that the Department further explained its rationale in more detail in its March 30, 2015 response.

      . The trial court assessed the highest per day statutory penalty under LSA-R.S. 44:35E(1). The defendants did not seek review of the amount of the penalty assessed per day.

      . In Aswell, this court first concluded that the Department of Administration (DOA) “arbitrarily withheld the documents when it responded to Mr, Aswell’s records request stating that it was not in possession of documents responsive to his request when the record reveals that it was, and we find that DOA’s response to Mr. Aswell’s request was not entirely truthful.” Aswell, 196 So.3d at 95. However, addressing the penalty provision set out in the second sentence of LSA-R.S, 44:35E(1), this court found that Mr. Aswell was not entitled to the discretionary award of civil penalties because the DOA did timely respond to Mr. Aswell’s request within the timeframe set forth in LSA-R.S. 44:32. Id.

      . Cf. Independent Weekly, LLC v. Lafayette City Marshal Pope, 16-282 (La.App. 3 Cir. 9/28/16), 201 So.3d 951, 961, writ denied, 16-1942 (La. 12/16/16), 212 So.3d 1172, where our brethren in another circuit found that even if a response is received within the statutory delay, one cannot escape the discretionary civil penalties if the response is "woefully inadequate.”

      . However, we note that it is unclear under the penalty provision of LSA-R.S. 44:35E(1) whether any response, regardless of the truthfulness or completeness of the response, would be sufficient to defeat the civil penalty provision of the statute. Accordingly, this issue may merit legislative review.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. AMY, J.,

license: Public Domain

text:
    Traci L. HEBERT v. BARRY’S AIR CONDITIONING, INC., et al.
    16-911
    Court of Appeal of Louisiana, Third Circuit.
    August 31, 2017

      Staci Knox Villemarette, Cloyd, Wim-berly & Villemarette, LLC, Post Office Box 53951, Lafayette, LA- 70505-3951, Telephone:. (337) 289-6906, COUNSEL FOR: Defendants/Appellees-State Farm Mutual Auto Insurance Company, Early’s Air Conditioning, Inc., and BrianMeaux
    Gregory A. Koury, Andrew P. Hill, Koury & Hill, LLC, Post Office Box 52025, Lafayette, LA 70505-2025, Telephone: (337) 889-5409, COUNSEL FOR: Plaintiff/Appellant-Traci L. Hebert
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Marc T. Amy,-and John E. Conery, Judges.
   THIBODEAUX, Chief Judge.

|2As Traci Hebert attempted to execute a right turn, a collision occurred between her vehicle and a Barry’s Air Conditioning vehicle. Ms. Hebert filed suit alleging Barry’s Air Conditioning was at fault and sought recovery for persona! injuries and damage to her vehicle. Pursuant to a bench trial, the trial court allocated 70 percent fault to Barry’s Air Conditioning and 30 percent to Ms. Hebert. However, the trial court also held that Ms. Hebert failed to establish a causal relationship between the accident and her injures and dismissed her claims. It also awarded costs to Barry’s Air Conditioning. Ms. Hebert appeals the trial court’s judgment regarding causation and costs. For the reasons that follow, we reverse the trial court’s judgment and award $50,000.00 in damages to Ms. Hebert.

I.

ISSUE'

We must decide:

1. whether the trial court erred in finding that Ms. Hebert failed to establish that the accident caused her injuries;
2. whether the trial court’s judgment awarding “costs associated with this matter” conflicted with its previous ruling awarding Ms. Hebert costs for her Motions in Limine that were granted in her favor. ;

n.

FACTS AND PROCEDURAL HISTORY

This action is ’ a vehicular, accident that occurred between Ms. Hebert and Brian Meaux, a Barry’s Air Conditioning’s employee. Mr. Meaux was driving a company vehicle in the course and scope of his employment at the time of the |saccident. The accident occurred as Ms. Hebert was driving on a single lane road and attempted to make a' right turn into a parking spot. To avoid hitting a utility pole, she veered to the left and made a wide right turn. Mr. Meaux falsely assumed Ms. Hebert was making a left turn and attempted to pass her on the right. The two vehicles collided. Photographs from the scene reflect that Ms, Hebert’s vehicle was damaged on the passenger’s side, and the company’s vehicle was damaged on the driver’s side. The damage is consistent with Mr. Meaux attempting to pass Ms. Hebert on the right side.

The responding officér, Tyler Ebling, did not issue a citation at the scene. However, his supervisor, Sergeant Brent Taylor, later ordered him to revise his report, assign fault to Mr. Meaux, and issue a citation to him for careless operation. At the scene, Ms. Hebert reported to Officer Ebling that the accident caused her to hit her head on her driver’s side window. She testified that she suffered a headache because of the accident, and experienced back and neck pain later that night. ,

A day after the accident, Ms. Hebert visited her chiropractor, Dr. Tiffany Pratt, complaining of pain in her neck, back and shoulder, and headaches. Dr. Pratt had treated Ms. Hebert numerous times in the past for various ailments, including neck and back pains. The day after the accident was her first visit with Dr. Pratt in nearly eight months. Dr. Pratt reported that Ms. Hebert had a “good prognosis” before the accident and remarked, “apparently she was doing better” because she did not return until the day after the accident. Dr. Pratt diagnosed Ms. Hebert with suffering from cervical nerve root compression, cervical sprain/strain, lumbar spinal compression, lumbar/sacroiliac joint disorder, muscle spasm, and segmental dysfunction of the 14T-7 vertebrae. Her diagnoses were based on objective findings of injury. Dr. Pratt testified that the injuries were caused by, and did not predate, the accident. Her diagnosis began a course of treatment that lasted nearly four years, and included a referral to a neurologist, Dr. Fabian Lugo.

After trial, the trial court issued a written ruling that assigned 70 percent fault to Barry’s Air Conditioning and 30 percent to Ms. Hebert. The court, however, also determined Ms. Hebert failed to establish a causal relationship between the accident and her injuries. The court reasoned that neither Ms. Hebert’s chiropractor nor her neurologist sufficiently linked her - injuries to the accident. The court dismissed her claims and awarded Barry’s Air Conditioning costs of the proceeding. Ms. Hebert now appeals the trial court’s judgment regarding causation and costs.

III. .

STANDARD OF REVIEW

“Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)). Under this standard of review, an appellate court cannot reverse á trial court’s finding of fact unless the record shows the. finding is manifestly erroneous or “clearly wrong.” Snider v. La. Med. Mut. Ins. Co., 13-579 (La. 12/10/13), 130 So.3d 922, 938. To reverse a factfinder’s determination, an appellate court must review the. record and find that: (1) “a reasonable factual basis does not exist for the finding of [fact],” and (2) “the record establishes that the finding is clearly wrong (manifestly erroneous].” Id. (quoting Stobart v. State, Dep’t Transp. & Dev., 617 So.2d 880, 882 (La.1993)). Accordingly, we review the record to determine whether the trial court’s conclusion was reasonable, not whether it was right or wrong. Id.

IV.

' LAW AND DISCUSSION

A. Causation

Ms. Hebert argues the trial court erred in finding she did not establish that the accident caused her injures. She argues that although she had neck and back ailments in the past, she was in good health when the accident occurred. She notes her chiropractor, Dr. Pratt, testified that she did not complain of neck or back pain during her last visit before the accident, which occurred eight months prior. Additionally, she notes that Dr. Pratt opined that her injuries were caused by the accident. Further, she avers that Barry’s Air Conditioning faded to present countervailing evidence that her injuries were not caused by the accident.

In opposition, Barry’s Air Conditioning contends that the trial court was correct in ruling Ms. Hebert did not establish by a preponderance of the ^evidence a causal connection between the accident and her injuries. It maintains that the accident did not cause her injuries, and her medical treatments after the accident were for injuries that predated the accident. It also claims that neither Ms. Hebert’s chiropractor nor her neurologist testified' that her injuries were related to the accident.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the subject accident and the alleged injuries. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757. A plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). This burden can be met by proving through medical testimony that it was more probable than not the injuries were caused by the accident. Maranto, 650 So.2d 757. A determination of medical causation is a finding of fact and cannot be disturbed absent manifest error. Testimony from a treating chiropractor is admissible to establish causation. White v. Progressive Sec. Ins. Co., 08-926 (La.App. 3 Cir. 2/4/09), 6 So.3d 860 (holding that the treating chiropractor was qualified as an expert to give her conclusion regarding causation).

The trial court ruled that Dr. Pratt’s testimony did not sufficiently link Ms. Hebert’s injury to the accident. Our reading of Dr. Pratt’s testimony and the record, however, leads us to conclude that the trial court manifestly erred.

Dr. Pratt treated Ms. Hebert for occasional neck and back pains since 2006. Dr. Pratt was familiar with Ms. Hebert’s medical history, treatments, and symptoms. Ms. Hebert’s last visit with Dr. Pratt was eight months before the accident. After that visit, Dr. Pratt reported that Ms. Hebert’s prognosis was good and recommended a follow-up visit. Dr. Pratt testified that “apparently she was 17doing better and didn’t come back.” The next time Dr. Pratt saw Ms. Hebert was the day after the accident. There is no evidence in the record that Ms. Hebert saw any other doctor between her last visit with Dr. Pratt before the accident, and her visit the day after the accident. Further there is no evidence that Ms. Hebert’s condition worsened from her positive prognosis before the accident.

After the accident, Ms. Hebert reported to the responding deputy that the accident caused her to hit her head on the driver’s side window. The day after the accident, she told the same to Dr. Pratt and complained of neck, back and shoulder pains, and headaches. Dr. Pratt conducted a full examination, and noted objective signs of injury, including muscle spasms in her neck and back. Dr. Pratt testified that these symptoms did not pre-date the accident, and were consistent with the nature and severity of the accident. This began treatment that lasted nearly four years characterized by improvements, setbacks, objective findings of injury on each visit, and a referral to a neurologist. Further, Dr. Pratt testified that she did not believe Ms. Hebert was malingering and her treatments were necessary to relive pain caused by the accident.

Dr. Pratt’s testimony was unequivocal. She opined that Ms. Hebert’s condition was caused by the accident. Her opinion was based on her medical experience, knowledge of Ms. Hebert’s medical history, and objective findings of injury. She stated that x-rays taken after the accident showed that Ms. Hebert’s condition became worse since her last visit before the accident, and that “I really don’t think that would have happened otherwise.” She further testified that “I feel like [her injures are] due to the accident.” We also note that Barry’s Air [sConditioning did not offer any evidence to contradict Dr. Pratt’s testimony nor did it request an independent medical examination to advance its position. This leads us to conclude that the trial court manifestly erred in ruling that Ms. Hebert did not establish a causal relationship between the accident and her injuries.

Regarding damages, prior to trial, Ms. Hebert stipulated her causes of action did not exceed $50,000.00, exclusive of interest and costs. The medical records reflect that Ms. Hebert incurred $20,585.79 in medical expenses. Therefore, we award her $20,585.00 in medical expenses. Additionally, Ms. Hebert endured over 200 treatments which were related specifically to the accident over four years. Ms. Hebert testified that she has difficulty sitting for long periods, is no longer able to coach volleyball or ride horseback, and cannot perform chores around her home because of pain. Given that Ms. Hebert stipulated that her damages did not exceed $50,000.00 and accounting for her medical expenses, the most we can award in general damages is $29,415.00. Accordingly, we award $29,415.00 in general damages for a total of $50,000.00, plus interest from the date of judicial demand. The total award is subject to a thirty-percent reduction due to the trial court’s allocation of Ms. Hebert’s fault, which she did not appeal. See, e.g. Jacobs v. City of Marksville, 06-1386 (La. App. 3 Cir. 3/7/07), 953 So.2d 139, writ denied, 07-1093 (La. 9/14/07), 963 So.2d 999 (awarding $35,000.00 for neck and back soft tissue injuries and headaches that required ten months of treatment); Stelly v. Zurich American Ins. Co., 11-1144 (La.App. 3 Cir. 2/1/12), 83 So.3d 1225 (awarding for $43,000.00 for soft tissue neck and back injuries that required twenty-nine months of conservative chiropractic treatment).

|flB. Costs

Ms. Hebert argues that the trial court erred in taxing all costs against her. She contends that taxation of all costs contradicts the trial court’s previously awarding her costs associated with two pretrial motions that were granted in her favor.

Conversely, Barry’s Air Conditioning asserts that the trial court has the discretion to cast costs, and it decided to cast all costs onto Ms. Hebert. The trial courtte ruling, Barry’s Air Conditioning argues, should , not be disturbed unless'it abused its discretion. .

Generally, appellate courts shall not reverse a trial court’s decision to cast a party with court costs, absent a showing of abuse of discretion. Trahan v. Plessala, 14-795 (La.App. 3 Cir. 2/4/15), 158 So.3d 209. Louisiana Code of Civil Procedure Article 2164, which deals with appeals, .provides, in pertinent part,- that “[t]he court may award damages for frivolous appeal; and may -tax the costs of the lower and appellate court, or any part- thereof, against any party to the suit, as in its judgment may be considered equitable.” Further, when a trial court judgment is reversed on appeal, the party that loses on appeal is generally obligated to pay all costs of the trial and the appeal, even though-that party won at the trial level. See, e.g. Vernon Co. v. Carter, 254 So.2d 297 (La.App. 4 Cir. 1971).

In view of this court’s reversal of the trial court’s judgment, all trial and appellate costs are assessed against Barry’s Air Conditioning and its insurer, State Farm.

JifiV-

CONCLUSION

For the foregoing reasons, the trial court’s judgment as.to causation and costs is reversed. Traci L. Hebert is awarded $50,000.00, plus interest from the date of judicial demand. The total award is reduced by 30 percent because of the -trial court’s allocation of fault .to Ms. Hebert, which was -not appealed. Additionally, all trial and appellate costs are assessed against Barry’s Air Conditioning and its insurer, State Farm.

REVERSED AND RENDERED.

AMY,-J., dissents and assigns written reasons,

AMY, J.,

dissenting.

hi respectfully dissent from the majority opinion as I find that this case turns on the standard of review. As referenced by the majority, the relevant inquiry under the manifest error standard of review “is not whether the trier of fact, was right or wrong, but whether, the fact-findqr’s conclusion was a reasonable one.” Purvis v. Grant Parish School Bd., 13-1424, p. 4 (La. 2/14/14), 144 So.3d 922, 926.

However, after review under that deferential standard, I find that the record supports the trial court’s ruling that Ms. Hebert failed, to prove medical causation by a preponderance of the evidence. In particular, it is important to note that the plaintiff had a long history of treating with Dr. Pratt for neck and back pain, but had last visited with Dr. Pratt eight months prior to the ’ accident. Moreover, and according to Dr. Pratt’s medical records and testimony, she had recommended that Ms. Hebert return for further treatment, yet she did not return during that eight-month period. Further, during her deposition, Dr. Pratt stated the following:

I feel like it is due to the accident. I saw her prior to the accident; I also saw her after. In addition to—I mean, we took X-rays early on in treatment and after the .accident, and it did get worse. I mean, I don’t—I really don’t think that would have happened otherwise.

However, aside from the X-ray taken, after the accident, the only other X-ray result included in Dr. Pratt’s medical records is from Ms. Hebert’s initial consultation in October 2006, nearly six years prior to the accident. Additionally, Dr. Pratt |2testifíed that a post-accident MRI performed in October 2012 showed “[njothing real significant” and merely demonstrated a degenerative condition predating the accident.

Thus, given Ms. Hebert’s extensive history of neck and back pain, the trial court could have reasonably concluded that Ms. Hebert’s symptoms were a continuation of her prior condition and had simply not resolved at that time. Furthermore, in addition to Dr. Pratt’s general statement as to a worsening of symptoms as an indicator of causation, Dr. Lugo’s records do not further clarify the issue of causation.

For these reasons, I find no manifest error in the trial court’s determination. Accordingly, I would affirm the trial court’s judgment.

      . Dr. Pratt also treated Ms. Hebert for carpal tunnel. The parties stipulated that hér carpal tunnel symptoms were not related to the accident.

      . In full, the trial court wrote: "Unfortunately for plaintiff; the evidence presented during this trial has failed to establish medical causation; thus, the plaintiff has failed to sufficiently prove any of the claimed damages resulted from this collision. Although there was evi-deuce of plaintiff seeking medical treatment following the accident, neither the treating chiropractor nor the treating neurologist sufficiently linked plaintiff’s injuries to the motor vehicle accident at issue.”

      .We note that neither party appealed the trial court’s allocation of fault, Thus, our ruling is focused solely on causation, damages, and costs.

      . Ms. Hebert also contends that the trial court should have applied the Housley presumption. This presumption, which was set forth in Housley v. Cerise, 579 So.2d 973 (La. 1991), holds that a plaintiff’s injuries is presumed to have resulted from the accident if the plaintiff was in good health before the accident, not in good health after the accident, and the injuries continuously manifested themselves thereafter. Ms. Hebert’s request for us to apply the Housley presumption is moot because we find causation to be clear.

      . In full, Dr. Pratt testified: "It has been awhile since I had seen her, so I don’t think it was necessarily something that had been going on.”

      . Ms. Hebert’s brief states, “[h]er treatment with Dr. Pratt cost $20,595.79.” This appears to be a typo. The record Ms. Hebert cites reflects that her medical expenses were $20,585.79, which is a $10 difference from the amount cited in her brief.


author: SAUNDERS, Judge. GREMILLION, J.,

text:
    Trae THIBODEAUX v. Steven ARVIE, Jr., State Farm Fire and Casualty Company and Progressive Security Insurance Company
    17-625
    Court of Appeal of Louisiana, Third Circuit.
    August 31, 2017

      Chuck D. Granger, Christopher D. Granger, Granger Law Firm, P.O. Drawer 1849, Opelousas, LA 70571-1849, (337) 948-5000, COUNSEL FOR PLAINTIFF/RESPONDENT: Trae Thibodeaux
    David A. Strauss, Adam P. Massey, King, Krebs & Jurgens, P.L.L.C., 201 St. Charles Avenue, Suite 4500, New Orleans, LA 70170, (504) 582-3800, COUNSEL FOR DEFENDANT/APPLICANT: Progressive Security Insurance Company
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   SAUNDERS, Judge.

| tThis matter arises out of a motorcycle accident that occurred on July 19, 2015, while plaintiff, Trae Thibodeaux, was riding his 2009 Harley Davidson motorcycle eastbound on La. Hwy. 29 in Eunice. When the 2014 Ford Mustang, driven by Steven Arvie, Jr. (Arvie), proceeded to make a left-hand turn across plaintiffs lane of travel, plaintiff, to avoid a collision, made a conscious decision to apply both his front and rear brakes and lay down his motorcycle on its left side, wiping out. The parties dispute whether any contact was made between the vehicles, but if so, the contact was minimal due to plaintiffs evasive action from which he sustained extensive road burns to his hands, arms, and legs, as well as neck and back injuries. The state police investigation concluded that the accident was caused by (1) plaintiffs excessive speed, for which he was cited as he admitted that he was traveling at least 65 miles per hour in a 45 miles per hour zone, and (2) plaintiffs inattentiveness. Ar-vie was not cited for any violation or fault.

On October 27, 2015, plaintiff filed suit against Arvie and his insurer, State Farm Fire and Casualty Company (State Farm). He also named as a defendant, Progressive, his underinsured motorist (UM) insurance carrier.' After settling with State Farm for the full- policy limits of $25,000, plaintiff made a demand on Progressive, claiming his “damages exceed $50,000.00 exclusive of costs and interest.” When Progressive denied the claim and refused to tender any money, plaintiff amended his original petition, adding bad faith claims against Progressive for its arbitrary and capricious denial and seeking penalties pursuant to La.R.S. 22:1892 and 22:1973.

Thereafter, Progressive filed its motion for partial summary judgment, asserting that plaintiffs bad faith claim should be dismissed because he failed to |2meet his evidentiary burden for establishing bad faith in that (1) plaintiff had not shown, and could not show, that Progressive’s coverage decision was “arbitrary and capricious”, given the overwhelming evidence that he was responsible for his wipeout, and (2) plaintiff would not be entitled to any UM benefits unless it could be shown that Arvie was more than 55% at fault, but there was no evidence in the record that could reasonably put Arvie’s degree of fault anywhere near that threshold. Therefore, Progressive claimed its decision was reasonable and not in bad faith.

In opposition, plaintiff argued that (1) the issue is not whether there are genuine questions as to who was at fault, but rather whether Progressive acted in bad faith, which is a factual issue for the jury, and (2) a coverage issue under an UM policy only arises if the insured is 100% at fault, but- there was ample evidence that plaintiff—the motorist with the right of way— was not 100% at fault for-the wipeout caused by his . evasive maneuver taken to avoid a collision with a motorist negotiating, at too slow a rate of speed, a left turn across the lane of travel. After hearing arguments, the trial court denied the motion, reasoning:

Let me start by saying this ... there is no question in my mind that there’s going to be -a question of who’s at fault and what percentage of- fault; That’s a given, based on the evidence that’s presented ....
... I have a real "problem with it, because I think to grant this summary judgment I have to review and make some credibility determinations, which I’m not allowed to do. I have a real .problem with being able to do that. I mean in every case insurers have to look at is this a hundred percent fault case, is this á comparative fault case? If so, how do I evaluate it, do I evaluate damages? I think it requires some factual determinations to be made, some credibility determinations to be made, that I’m not prepared to make in a summary judgment proceeding, and as a result, I’m going to deny the motion for summary judgment for the oral reasons given today.

|SA court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial’court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to -avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). This supervisory jui’isdiction may also be exercised to reverse a trial court’s denial of a motion for summary judgment and to enter summary judgment in favor of the mover. Csaszar v. Nat’l Cas. Co., 14-1273 (La.App. 3 Cir, 11/4/15), 177 So.3d 807, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752. Nevertheless, appellate courts generally will not exercise their supervisory jurisdiction when an adequate remedy exists by appeal. Douglass v. Alton Ochsner Med. Found., 96-2825 (La. 6/13/97), 695 So.2d 953.

Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art, 966(A)(3).

In order to succeed on a claim for statutory penalties under La.R.S. 22:1892 and 22:1973, an insured must show that (1) the insurer received satisfactory proof |4of loss, (2) the insurer failed to tender payment within thirty or sixty days of receipt thereof, and (3) the insurer’s failure to pay was arbitrary, capricious or without probable cause. La. Bag Co., Inc. v. Audubon Indemn. Co., 08-453 (La. 12/2/08), 999 So.2d 1104. In Guillory v. Lee, 09-75, pp. 31-32 (La. 6/26/09), 16 So.3d 1104, 1127 (citations omitted), the supreme court addressed the arbitrary and capricious factor, expounding:

With regard to what constitutes “arbitrary, capricious, or without probable cause,” this court has held that the phrase is synonymous with “vexatious.” Furthermore, a “vexatious refusal to pay” means “unjustified, without reasonable or probable cause or excuse.” Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense.
This court has also stated that penalties should be imposed only when the facts “negate probable cause for nonpayment.” Moreover, whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, and this court has declined to assess penalties “when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense.” More specifically, not only are the statutory penalties inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense, especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubt exists. An insurer who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be subject to penalties and attorney’s fees. Finally, the question of arbitrary and capricious behavior is essentially a factual issue, and the trial court’s finding should not be disturbed on appeal absent manifest error.

Relying on this supreme court precedent, Progressive argues herein that the trial court erred in denying summary judgment after finding that Progressive’s unre-futed evidence successfully demonstrated the existence of a genuine liability dispute because under our jurisprudence, an insurer cannot be found in bad faith when there is a valid liability dispute. Progressive further argues that plaintiff has not proven that Arvie was at fault or was even under-insured, which are both necessary to establish satisfactory proof of loss. But even if it is determined that Arvie does shoulder some of the blame for the accident, Progressive claims that such a finding would not negate the fact that Progressive had a reasonable, good-1 ffaith basis for its decision to deny plaintiffs UM claim. Therefore, as a matter of law, Progressive cannot be found in bad faith, and plaintiff’s bad-faith claims should be dismissed.

In its supplemental brief, Progressive cites this court’s holding in Dodge v. Sker man, 17-70 (La.App. 3 Cir. 6/7/17), — So.3d -, for the propositions that (1) this court will accept for review a supervisory writ challenging a trial court’s denial of partial summary judgment seeking dismissal of statutory bad faith claims, and (2) the dismissal of bad-faith claims on summary judgment is mandated where the plaintiff cannot prove an essential element of the claim. In Dodge, this court explained that it was “hornbook law” that a third-party claimant has only limited causes of action for bad faith under La.R.S. 22:1973, none of which were pled or proven in that case. Id. Similarly, Progressive argues that our supreme court has long held that, when an insurer denies coverage based on a reasonable liability dispute, its decision, as a matter of law, cannot be deemed arbitrary and capricious. Therefore, once the trial court found there was a genuine dispute, the law required that plaintiffs bad-faith claims be dismissed.

Plaintiff, in its opposition, contends that all of the arguments presented by Progressive are fact-based arguments, which should be heard and decided by the trier of fact, and that it is obvious that there are genuine issues of material fact | ./regarding whether Progressive was arbitrary and capricious in its adjusting of this claim, all of which preclude summary judgment. Plaintiff further argues that it was Arvie’s act of turning across his lane that caused this accident, not plaintiffs speeding. In support, plaintiff cites numerous authorities for the holding that speeding does not, in and of itself, require a finding of liability, as well as jurisprudence on the duties and fault of motorists entering the lane of travel of another motorist with the right of way. Based upon this jurisprudence, plaintiff argues a motorist traveling on a high-speed, multilane highway is not required to anticipate that a motorist entering the highway will not yield the right of way, and such motorist can indulge in the assumption that the other driver will observe the law and yield until he sees, or should see, that the other car has not observed, or is not going to observe, the law. Thus, plaintiff argues that the fault herein rests solely on Arvie who navigated his turn at too low a rate of speed, forcing plaintiff to take evasive action and wiping out.

Next plaintiff asserts that there is evidence supporting that Arvie was underin-sured and criticizes Progressive’s attempts to minimize the injuries suffered 18by plaintiff and then arbitrarily place a value on the minimized damages. Finally, plaintiff points out that the arbitrary and capricious issue is a factual one that is not appropriate for summary judgment unless there are no genuine issues of material fact. But such issues do exist here given that, should the jury in this case decide that Progressive should have tendered some amount of money, then the jury could find that Progressive was arbitrary and capricious in its refusal to do so.

We find that the trial court refused to make, and did not actually make, a factual determination regarding the reasonableness of the liability dispute herein. Rather, the court merely acknowledged that liability would, in fact, be disputed. But the arbitrary and capricious aspect of the bad-faith penalty inquiry requires a factual finding of the reasonableness of the dispute, ie., a reasonable defense, as well as a finding that the insurer acted in good faith in its reliance upon that reasonable defense. Therefore, we find that the trial court correctly found that the fact-intensive inquiry herein is not ripe for resolution on summary judgment and the writ should be denied as the trial court did not err in denying summary judgment.

WRIT DENIED. We find no error in the trial court’s ruling.

Gremillion, J., dissents and assigns written reasons.

GREMILLION, J.,

dissents for the following reasons:

hi respectfully disagree with the majority. This is a claim for bad faith. Yet the trial court and the majority take the position that the plaintiff can survive summary judgment without providing any evidence of bad faith. I see repeatedly the conclusion that no such evidence is necessary. Rather, all the plaintiff must do is argue that he might not be completely at fault and he can subject the UM insurer to a trial, not only as to liability and damages, but also as to bad faith. Moreover, not only is a liability dispute insufficient to demonstrate good faith on the part of the insurer, but indeed, no other evidence of bad faith is required to preclude summary judgment on a bad-faith claim. According to my colleagues, evidence that the insurer might be liable substitutes seamlessly for evidence of bad faith sufficient to deny summary judgment. I disagree.

Case in point would be the trial court’s oral reasons cited by the majority. Iti does not so much as mention the words'“bad faith” or “arbitrary and capricious.” It certainly points to no evidence of bad faith in the record that would or could preclude summary judgment. Rather, the trial court based its ruling as to bad faith on the issues of fault, fault allocation, and evaluation of damages.

| gIs a finding of genuine issues as' to liability, without more, the same as; a finding of genuine, issues as to bad faith? Is evidence suggesting the defendant may be assessed some comparative fault, without more, equivalent to evidence suggesting arbitrary and capricious claim handling? Does the possibility that the trial court may have to evaluate damages tomorrow, without more, automatically establish the possibility that the UM insurer was unfair, lacking in good faith, and/or vexatious yesterday?- If. the answer to any of these questions is yes, then I stand corrected and summary judgment should be denied. That would also mean that a UM insurer may never choose to defend itself without being subject to a bad-faith claim regardless of the-results of its investigation.

However, I do not find that is the state of the law. Rather, to- survive summary judgment, the plaintiff must provide some evidence, not merely that he might prevail in whole or in part at some possible future trial, but that there is “no substantial, reasonable, and legitimate questions as to the extent of the insurer’s liability.”

Even the most cursory reading of the record establishes that there are substantial, reasonable, and legitimate questions which, as a matter of law, preclude a finding of bad faith. With regard to liability, there is. evidence that the plaintiff, was speeding. He admitted to traversing a road governed by a 45 mile per hour speed limit at 65 miles per hour. Multiple witnesses confirmed he was driving excessively fast. The investigating officer also found that to be true, and issued the plaintiff a citation accordingly. Finally, two experts conducted calculations based on evidence collected at the scene. One concluded that he was going at least 65 miles per hour, and the other concluded that he was going'78 miles per hour. This alone establishes substantial, reasonable, and legitimate • questions of liability that preclude a future finding of bad faith.

lain addition, the record reveals that the investigating officer, a 17-year veteran trooper, determined that the cause of the accident was not only the plaintiffs speeding but also his inattentiveness. Further, there is abundant evidence in the record indicating'that this was actually a one-vehicle accident, with the plaintiffs motorcycle not even touching the defendant vehicle. Moreover, multiple witnesses and the ' investigating officer concluded that, despite the plaintiff approaching at 25 to 38 miles over the speed limit, the other driver was still able to avoid the collision. In fact, the only evidence to the contrary is the plaintiffs testimony that he “thinks” he “nicked” the other vehicle.

Leaving liability and turning to damages, there is evidence that the plaintiff has already received $25,000 for a minor injury. The UM insurer’s investigation revealed medical records showing the plaintiff began reporting he was pain-free from about three months post-accident.

The significant evidence put on by the defendant overwhelmingly establishes that there are “substantial, reasonable, and legitimate questions” regarding its liability, and the claims-handler had “probable cause” for its actions. Thus, in order to defeat this summary judgment motion, the plaintiff must have presented evidence that the UM insurer denied the claim not because of legitimate questions and probable cause, but rather merely to be “vexatious” and therefore, “unjustified”.

It is true that the record also contains other evidence that contradicts the significant evidence I have pointed out. And, it is certainly true that the fact-finder could find the countervailing evidence to be more credible. According to the majority’s logic, if that occurs, then defendant should have predicted that result and based its handling of the claim on that prediction rather than on the results of the investigation it was duty-bound to undertake. This absurd result is not the law.

|4The insurer cannot become retroactively unreasonable if the fact-finder later decides against it. Logic and fundamental fairness operate against such a result. That is why the supreme court instructs that the plaintiff must be able to present “facts” that “negate probable cause for nonpayment.” Louisiana Bag Co., Inc. v. Audubon Indent. Co., 08-453, p.14 (La. 12/2/08), 999 So.2d 1104, 1114. These are not to be facts as they are determined by the judge or jury at the time of trial as supposed by the trial court and the majority. Rather, they are to be “facts known to the insurer at the time of its action.” Guillory v. Lee, 09-95, p. 31-82 (La. 6/26/09), 16 So.3d 1104, 1127, citing Louisiana Bag Co., 999 So.2d at 1115.

If there is a genuine issue of material fact as to bad faith now, then I simply cannot imagine a set of circumstances where there would be no such issue. In other words, if this UM insurer must face trial on this bad-faith claim, then when would a UM insurer ever be allowed to defend itself without having to face a bad-faith claim? I would grant the summary judgment.

      . According to Progressive, even if Arvie could be found 55% at fault, plaintiff could recover only 55% of his damages. Using plaintiff's high-end estimate of $44,822, plaintiff could only recover $24,652, which is $348 less than the $25,000 he collected in his settlement with State Farm. See Application, p. 14, n. 53.

      . La. R.S. 22:1892 provides, in relevant part:
      A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.

      - (4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
      .. (B)(1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from tire insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

      . La.R.S. 22:1973 provides, in pertinent part:
      A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A of this Section:

      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

      (C) In addition to any general or special damages to which a.claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

      . Citing McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La.1985)(setting forth the four elements for "satisfactory proof of loss”: "(1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages”).

      . Citing La. Bag Co., 999 So.2d at 1114 (“bad faith should not be inferred''; "when there are substantial, reasonable, and legitimate questions as to the extent of an insurer’s liability ... failure to pay [timely] ... not arbitrary, capricious or without probable cause”); Reed v. State Farm Mut. Ins. Co., 03-107, p. 13 (La. 10/21/03), 857 So.2d 1012, 1021 (“penalties and attorney fees are not assessed unless a plaintiff’s proof is clear that the insurer was in fact arbitrary^ capricious, or without probable cause in refusing to pay”; "penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense”); McDill, 475 So.2d 1085 (sanctions not appropriate where facts support probable cause for nonpayment); Crawford v. Al Smith Plumbing & Heating Serv., Inc., 352 So.2d 669, 673 (La. 1977)("When an insurer's termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious.”); Hebert v. S. La. Contractors, Inc., 238 So.2d 756, 761 (La.1970)("Penalties are stricti juris and should be enforced only in those instances in which facts clearly negate good faith and just cause in connection with refusal of allowance of compensation.”).

      . Citing Bland v. Interstate Fire & Cas. Co., 311 So.2d 480, 482 (La.App. 4 Cir. 1975)("the fact that a motorist involved in an accident was speeding or intoxicated does not in and of itself require a finding of liability”); see also Loveday v. Travelers Ins. Co., 585 So.2d 597 (La.App. 3 Cir.), writ denied, 590 So.2d 65 (La.1991)(excessive speed not a causative factor in accident); Aguillard v. Frank, 542 So.2d 834, 836 (La.App. 3 Cir. 1989)("While excessive speed or speed exceeding the lawful limit is a violation of the law, it is not necessarily a proximate or contributing cause of every accident.”); Fontenot v. Liberty Mut. Ins. Co., 130 So.2d 462 (La.App. 3 Cir. 1961)(same); Wood v. Mfrs. Cas. Ins. Co., 107 So.2d 309 (La.App. 2 Cir. 1958)(finding excessive speed does not necessarily give rise to liability).

        . Bond v. Jack, 387 So.2d 613, 615 (La.App. 3 Cir. 1980), aff'd, 407 So.2d 401 (La.1981)("It is clear from the jurisprudence that a left turning motorist bears a higher standard of care than ordinary”; standard described as "a high degree of care,” "higher duty of care,” "exceptional duty of care,” and "considerable in degree”). In Lang v. Cage, 554 So.2d 1312, 1316 (La.App. 1 Cir. 1989), writ denied, 558 So.2d 605 (La. 1990), the first circuit further explained:
      The jurisprudence of this state is well settled that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering oncoming or overtaking vehicles and he must yield the right of way to such vehicles. The failure of a left turning motorist to make such a determination and to exercise the required degree of caution before undertaking to make such a turn constitutes negligence.


author: WESTBROOKS, J.,

text:
    Marque D. WEST a/k/a Marque Daishon West, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00894-COA
    Court of Appeals of Mississippi.
    08/29/2017
    ATTORNEY FOR APPELLANT: MARQUE D. WEST (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

      BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Marque Daishon West pleaded guilty to second-degree murder in the Circuit Court of Claiborne County. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC). West filed a motion for postcon-viction relief (PCR), which the circuit court denied by order. West appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. West was indicted for the first-degree murder of Eric Hyder, pursuant to Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014); however, West pleaded guilty to murder in the second degree, pursuant to Mississippi Code Annotated section 97—3—19(1)(b). There is no transcript contained in the appellate record; however, West completed a “petition to enter a plea of guilty.” West filed a PCR motion, which was denied by order. In that order, the circuit court determined that West’s PCR motion lacked merit and did not require an evidentiary hearing. West appeals.

STANDARD OF REVIEW

¶ 3. “We review the dismissal or denial of a PCR motion for abuse of discretion.” Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). Further, “when reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Adams v. State, 201 So.3d 521, 523 (¶ 4) (Miss. Ct. App. 2016) (citing Hughes, 106 So.3d at 838 (¶ 4)).

¶ 4. “A trial court possesses the authority to summarily dismiss a PCR motion without an evidentiary hearing if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). See also Kennedy v. State, 181 So.3d 299, 301 (¶ 10) (Miss. Ct. App. 2015).

DISCUSSION

I. Whether West was entitled to be informed at sentencing of his ineligibility for parole.

¶ 5. West asserts that he was not informed of his ineligibility for parole. He further asserts that neither parole nor credit for time served was mentioned at the sentencing hearing. This Court has previously held that “a defendant does not possess a constitutional right to full parole information at or before his guilty plea.” Jackson v. State, 178 So.3d 807, 810 (¶ 13) (Miss. Ct. App. 2014) (citing Stewart v. State, 845 So.2d 744, 747 (¶ 11) (Miss. Ct. App. 2003)).

¶ 6. Further, “it is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted.” Thomas v. State, 881 So.2d 912, 916 (¶ 10) (Miss. Ct. App. 2004). “However, a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.” Id. (citation omitted).

¶ 7. In Thomas, the defendant “allege[d] that his attorney erroneously told him that he would be eligible for parole if he entered a guilty plea.” Id. at 917 (¶ 16). However, the defendant was not eligible for parole. “Any contrary advice by counsel was wrong and constituted deficient performance.” Id.

¶ 8. In West’s PCR motion, he argued that his attorney did not advise him of his ineligibility for parole. However, in the brief before this Court, he alleges that neither parole rights nor the possibility of a sentence reduction was ever mentioned by his attorney- or the trial judge. “Issues raised in a PCR motion that are not supported on appeal are abandoned and need not be considered by this Court.” Ford v. State, 121 So.3d 325, 328 (¶ 12) (Miss. Ct. App. 2013) (quoting Fluker v. State, 17 So.3d 181, 182-83 (¶ 4) (Miss. Ct. App. 2009)).

¶ 9. Notwithstanding the procedural bar, the record does not reflect that West was misinformed regarding the possibility of parole at the time of sentencing. Moreover, in Stewart, 845 So.2d at 747 (¶ 11), this Court held that “being unaware [of ineligibility for parole] is not synonymous with ill or erroneous advice.” See also Jackson, 178 So.3d at 810 (¶ 13). “In Stewart, the defendant asserted that she was unaware of her ineligibility for parole, earned time, and meritorious time.” Jackson, 178 So.3d at 810 (¶ 13) (citing Stewart, 845 So.2d at 747 (¶ 11)). This Court found “that a trial judge is not required to inform a defendant of [his] ineligibility for parole.” Id. (citing Stewart, 845 So.2d at 747 (¶ 11)).

¶ 10. The following is an excerpt of the “petition plea to enter guilty” initialed by West.

I declare that no officer or agent of any branch of government, nor any other person has made any promise or inducement of any land to me, or within my knowledge to anyone else, that I will receive a lighter sentence, probation, early release, or any other form of leniency if I plead “Guilty.” : •
I do understand that no one can assure me of parole or early release.
I understand that if I am not eligible for parole, I will not receive “good time” credits. I also understand that “earned time” or “good time” will not be applied to reduce my parole eligibility date. I understand that this Court has no control over the giving of earned time or good time.

¶ 11. West signed that he was aware, of the possibility of or his ineligibility for parole. Therefore, we find this issue to be without merit.

II. Whether West’s sentence was enhanced.

¶ 12. West asserts that his sentence was enhanced, and he was not given adequate time to prepare a defense. We disagree. West pleaded guilty to second-degree murder pursuant to section 97-3-19(l)(b), which requires a 'maximum sentence of forty years and a minimum sentence of twenty-five years in the custody of the MDOC. West was sentenced to thirty years.in the custody of the MDOC. This Court finds that West’s sentence was neither illegally nor secretly .enhanced. Furthermore, in West’s plea petition, he initialed that his lawyer informed him as to the maximum and minimum punishments the circuit court could have imposed. Accordingly, this issue is without merit.

¶ 13. Therefore, we find.that the circuit court properly denied West’s PCR motion.

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. .


author: BARNES, J.,

text:
    Eric PIERCE a/k/a Eric V. Pierce, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00769-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEY FOR APPELLANT: ERIC PIERCE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Eric Pierce, appearing pro se, appeals the judgment of the Circuit Court of Attala County denying his motion for post-conviction relief (PCR) as a successive writ and time-barred. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On February 3, 2009, Pierce was indicted for armed robbery. He pleaded guilty a few weeks later. The robbery occurred in November 2008 when Pierce was eighteen years old. The victim, Melton King, was the owner of a Sonic restaurant. He was walking across a grocery-store parking lot with a bank bag containing $1,265 of Sonic’s funds. Pierce came up to King, held a pistol to him, and instructed him to “give me the money.” King gave Pierce money from his pocket and the bag of money. Pierce then fled. King pursued Pierce in his vehicle, hitting and injuring him. Law-enforcement officers were able to arrest Pierce in the parking lot. Pierce later confessed to the crime.

¶3« The circuit court sentenced Pierce to serve seventeen years in the custody of the Mississippi Department of Corrections (MDOC). On August 19, 2010, the circuit court dismissed Pierce’s first PCR motion, wherein he argued that his plea was involuntary and that he received ineffective assistance of counsel. He did not appeal the dismissal. His second PCR motion, seeking relief on the same grounds as his first PCR motion, was dismissed by the circuit court on February 3, 2012. Pierce appealed, and this Court affirmed the dismissal in Pierce v. State, 115 So.3d 869, 873 (¶ 14) (Miss. Ct. App. 2013), finding his motion was barred as successive, and his arguments were without merit.

¶4. On April 25, 2016, Pierce filed his third PCR motion in the circuit court, arguing that he is excepted from any procedural bars because his sentence is illegal, and that his attorney misinformed him about pleading guilty. Pierce claims his initial plea was “not guilty,” but his counsel persuaded him to plead guilty as “the best option,” and told him that MDOC would release him once he turned twenty-one years old. The circuit court was not persuaded, and denied his motion as time-barred and successive. Pierce timely appealed.

STANDARD OF REVIEW

¶5. When considering a circuit court’s denial of a PCR motion, the appellate court will not disturb the circuit court’s factual findings unless they are clearly erroneous. Questions of law, however, are reviewed de novo. Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss. 2008) (citation omitted).

ANALYSIS

¶6. On appeal, Pierce submits several issues in the form of questions relating to his guilty plea and the assistance of his counsel. We shall address each issue in turn; however, as the circuit court ruled, Pierce’s PCR motion is both successive and time-barred.

¶ 7. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Additionally, a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). This PCR motion is Pierce’s third relating to his armed-robbery charge, and was filed over seven years after his judgment of conviction; therefore, it is procedurally barred.

¶ 8. Pierce raises the same issues in this PCR motion as he did in his other two; he just changes the nuance of his arguments. Pierce first asks whether errors affecting fundamental constitutional rights are excepted from post-conviction procedural bars, which they are. Under Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss. 2010), the Mississippi Supreme Court specifically held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” However, “the mere assertion of a constitutional right violation does not trigger the exception”; rather, the claim must at least appear to have some basis of truth. Evans v. State, 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (citations and internal quotation marks omitted). Here, Pierce has not demonstrated a basis for a fundamental-constitutional-rights violation; so there is no exception to the procedural bars.

¶ 9. Next, Pierce argues that his PCR motion-should not be dismissed because its facts were proven by witness testimony—that of his mother. “To survive summary dismissal, a collateral attack on a facially correct plea must include supporting affidavits of other persons. Furthermore, [the movant] must allege ‘facts which require further inquiry’ in the expanded setting of an evidentiary hearing.” Jones v. State, 949 So.2d 872, 873 (¶ 3) (Miss. Ct. App. 2007) (internal and external citations omitted). However, “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record[;] such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required.” Wright v. State, 577 So.2d 387, 390 (Miss. 1991).

¶ 10. Pierce attempts to suppórt his assertions as truth and avoid summary dismissal by attaching to his appellate brief a handwritten affidavit by his mother, which states that Pierce Was unable to understand his plea because he was under the influence of drugs for a back injury. He also raised this issue in his second PCR motion. While a PCR motion' could possibly avoid dismissal with certain witness testimony, here, his mother’s'statement is belied by Pierce’s own sworn testimony at the plea hearing and his plea petition that he was competent and understood his plea. - '

¶ 11. At the hearing, Pierce stated under oath that .he had read his plea petition and reviewed it with counsel; he was not under the influence of any drugs, alcohol, or intoxicants at the time; and he had “no disabilities of the mind or problems that would in any way interfere with [his] ability to understand the proceedings.” Further, in- his plea petition, Pierce signed a sworn statement that his decision to plead guilty was his alone—he did not receive any outside coercive influences. He agreed that the sentence is up to the court, and that the court is not required to follow the recommendations of the district attorney, who made the recommendation of seventeen years. He stated he was satisfied with the advice counsel had given him. Pierce’s sworn testimony and plea petition render his affidavit ineffectual.

¶ 12. Pierce also argues that ignorance, misunderstanding, and incompetency threaten the validity of his guilty plea; and that the circuit court did not accurately determine if his plea was intelligently made. “For a guilty plea to be valid[,] it must be entered into voluntarily, knowingly, and intelligently”; that is, “the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Williams v. State, 31 So.3d 69, 74 (¶ 13) (Miss. Ct. App. 2010) (citation and internal quotation marks omitted). “The burden of proving that a guilty plea [is] invalid rests with the defendant and must be proven by a preponderance of the evidence.” Id. “Statements made in open court under oath carry a strong presumption of veracity.” Thomas v. State, 159 So.3d 1212, 1216 (¶ 12) (Miss. Ct. App. 2015) (citations and internal quotation marks omitted).

¶ 13. Additionally, for an ineffective-assistance-of-counsel claim, the defendant must prove: “(1) his counsel was deficient^] and (2) that the deficiency prejudiced his defense.” Pierce, 115 So.3d at 873 (¶ 11) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A strong presumption exists that counsel’s performance was reasonable. Id. “[T]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 14. Again, Pierce’s sworn plea petition and statements under oath do not support any of his assertions on his attorney’s incompetence or lack of intelligence. Additionally, there is no evidence Pierce was incompetent at the hearing. Further, the judge thoroughly explained that the proposed sentence was seventeen years, that the court could give Pierce a life sentence, and that any sentence must be served day-for-day. When the judge asked if Pierce understood, Pierce stated that he had not understood before, “but I do now.” Even if counsel had misinformed Pierce, the judge correctly advised him. The record indicates Pierce was thoroughly informed of the nature and consequences of his guilty plea and sentence, and the circuit court properly accepted his plea. Accordingly, his guilty plea was intelligently and voluntarily made.

¶15. Regarding his counsel’s effectiveness, at the plea hearing, while Pierce stated that he was not satisfied with his counsel’s representation, his dissatisfaction was with the recommendation of the district attorney, not his counsel. Immediately prior to this comment, he had affirmed to the court that his attorney had gone over and counseled him on the charges, advised him of the elements of armed robbery and the facts the State must prove, discussed any possible defenses he might have, met the expectations of what he believed a lawyer representing him should do for him, and had his best interests at heart, and Pierce had no complaints at all about his' representation. There is no indication in the record that Pierce’s attorney’s performance was deficient or prejudicial to Pierce’s defense.

¶ 16. Finally, Pierce argues that his guilty plea should be vacated “in the interest of justice”; however, Pierce has failed to prove any grounds for reversal. His issues are without merit.

CONCLUSION

¶ 17. The circuit court did not abuse its discretion in denying Pierce’s PCR motion because it was successive and time-barred. Pierce failed to prove a fundamental-constitutional-rights violation to circumvent the procedural bar. His substantive arguments regarding his guilty plea and claims of ineffective assistance of counsel are also without merit. Therefore, we affirm the circuit court’s denial.

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Pierce argued that he was on painkillers for a broken back at the time of his guilty plea, and thus it was involuntary. He also claimed ineffective assistance of counsel because his attorney did not properly investigate his mental state at the time of his plea hearing. Pierce, 115 So.3d at 872-73 (¶¶ 9, 11).

      . In the affidavit, Pierce’s mother states that she was present during all of the talks between Pierce and his attorney. She states he took Percocet and Flexeril for his broken back, and he appeared "spaced out” and "a little confused” after court appearances and speaking with his attorney. She claims his attorney told Pierce MDOC would release him once he turned twenty-one. She maintains he would not have agreed to the plea if he had known his attorney misinformed him, and if he were "in a better state of mind.”