author: GRAVOIS, J.

text:
    DEPARTMENT OF CHILDREN & FAMILY SERVICES (DCFS) Support Enf. Serv o/b/o Craig Benoit Alexander, Adrienne Christel Alexander v. Craig Anthony ALEXANDER
    NO. 16-CA-387
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Kim An-cona-Laborde
    COUNSEL FOR DEFENDANT/APPELLANT, CRAIG ANTHONY ALEXANDER, Fontella F. Baker
    Panel composed of Susan M. Chehardy, Jude G, Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

hThis suit was brought by the State of Louisiana, Department of Children and Family Services (“the State”) as plaintiff/appellee, pursuant to La. R.S. 46:236.1.1 et seq,, seeking child support from defendant/appellant, Craig Anthony Aexander, for the benefit of his minor son, Craig Benoit Aexander. Mr, Aexander appeals the trial court’s April 28, 2016 judgment that granted the State’s rule to modify child support. For the reasons that follow, we affirm in part, reverse in part, and amend in part.

FACTS AND PROCEDURAL HISTORY

On September 2, .2011, in their civil divorce proceeding, Craig Alexander and Adrienne Alexander entered into a Consent Judgment which ordered Mr. Alexander to pay Ms. Alexander $1,132.00 in monthly child support, which judgment was signed on May, 11, 2012. On May 17, 2012, the State filed a Motion to Amend Judgment to be named as payee of said civil order of support; on. May 22, 2012, the motion was granted. On April 2, 2013, another Consent Judgment was entered into in the civil divorce proceeding ordering an interim order of child support, reducing Mr. Alexander’s monthly child support obligation to $800.00 per month. In response, the State again filed a Motion to Amend Judgment to be named as payee of the civil order of support, which motion was granted on May 17,2013.

On October 17, 2013, in the instant proceeding, Mr. Alexander’s child support obligation was decreased to $300.00 per month effective from October 1, 2013 through April 30, 2014. On January 16, 2014, the State filed a Rule to Review Child Support, alleging a change in circumstances which would result in a modification of Mr. Alexander’s child support obligation of $300,00 per month |2then in effect. A hearing on the rule was set .for March 20, 2014, but the hearing was ultimately continued to June 12, 2014. However, on March 20, 2014, an interim Judgment was signed increasing Mr. Alexander’s child support obligation to $1,000.00 per month effective on February 1, 2014.

On June'12, 2Q14,- a hearing was held on the State’s Rule to Review Child Support. At the hearing, Ms. Alexander requested that the case be closed because,, “it’s so related to the custody case that we’re getting ready to do, hopefully soon in the near future.” It was ordered, that the State would no longer be named as payee of Mr. Alexander’s income assignment order, and Mr. Alexander’s child support .obligation would remain suspended until the , issue of custody was decided.

On Janüáry 15, 2015, the State filed a Motion to Amend Judgment and Rule- to Review for Modification. The motion noted that on October 8, 2014, ih the parties’ civil divorce proceeding, it was orderéd that the residence of the minor child was to be relocated to Dallas, Texas, and 'that' Ms. Alexander was again requesting the services of the State in collecting child support on her behalf from Mr. Alexander. The State requested that it be- reinstated as payee on the May 22, 2012 judgment that ordered Mr. Alexander to pay $1,132.00 in child support and requested a rule to review the-current amount of child support for modification. A rule to show cause was set for March 12, 2015. By motions filed by both parties, the hearing was continued to April 16, 2015, June 26, 2015, July 16, 2015, and finally August 13, 2015. On August 13, 2015, an interim Judgment was signed ordering Mr. Alexander to pay $1,730.00 per month in child support effective on August 13, 2015. A hearing was set for November 19, 2015 to, according to the State, “determine the retroactive date of the child support, review the interim support Order, and separate civil issue(s) between the parties.” This hearing was ultimately continued to January 14, 2016.

| ¡¡Following the hearing on January 14, 2016 and the filing of post-trial memoranda by both parties, in a Judgment signed on April 28, 2016, the trial court: (1) granted the State’s rule for modification; (2) ordered the effective date of the interim order of child support of $1,730.00 to remain August 2015; (3) ordered'Mr.-Alexander to pay child support for the months of June 2014 through December 2014 in the amount of $1,000.00 per month; (4) ordered Mr. Alexander, effective January 2015 through July 2015, to pay child support. in the amount of $1,333.46; and (5) ordered Mr. Alexander, effective January 2016, to pay child support in the amount of $1,443.89 per month. This timely appeal followed.

On appeal, Mr.. Alexander asserts the following assignments of error:

1. The . trial court committed manifest error and/or abused its discretion in finding that the State showed a material change of circumstances since the time of the previous child support award.
2. The trial court committed manifest error and/or abused its discretion in ordering Mr. Alexander to pay child support from June 2014 through December 2014 in the amount of $1,000.00 per month (totaling $7,000.00) before judicial demand was made by the State on January 15, 2015.
3. The trial court correctly held that Ms. Alexander was voluntarily underemployed, but committed manifest error and/or abused its discretion in setting the final child support without imputing Ms. Alexander’s earning capacity.
4. The trial court committed manifest error and/or abused of discretion in not making the final child support retroactive to the date of judicial demand on January 15, 2015.
5. If retroactivity was inapplicable, the trial court committed manifest error and/or abuse of discretion in applying the interim child' support judgment ' ■ from August 2015 to January 2016 without calculation of Mr. Alexander’s child support obligation for each period of time.
6. The trial court committed manifest error and/or abuse of discretion in including Mr. Alexander’s per diem and overtime income in calculating Mr. Alexander’s monthly income for child support purposes.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Mr. Alexander argues that trial .court erred by modifying the child support award without proof of a material change in circumstances since the time of the previous award. Mr. Alexander argues that | ¿Ms. Alexander’s voluntary underemployment and relocation are not material changes in circumstance and thus do not justify a modification of the child support award.

La;. R.S. 9:311 provides, in pertinent part:

A. (1) An award for support shall not be modified unless the party seeking the modification shows a material change iii circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.

Accordingly, a modification of child support can only be awarded when the party seeking the modification proves there is a material change in circumstance.

This- Court’s review of the trial court’s finding is governed by a two-part test: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the fact finder; and (2) the .appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). The trial court’s factual findings should not be reversed on appeal absent manifest error, Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court’s “findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse .... ” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 883 (La. 1993). A trial court’s order of child support is entitled to great weight. Carmouche v. Carmouche, 03-1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224. “[A]n appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error.” State, D.S.S. ex rel. D.F. v. L.T., 05-1965 (La. 7/6/06), 934 So.2d 687, 690.

Based on our review of the record, we find that the trial court did not abuse its discretion when it found there to be a change of circumstances warranting a ^modification of Mr. Alexander’s child support obligation. Prior to the State filing its rule for modification on January 15, 2015, the trial court issued a judgment concerning custody in the parties’ civil divorce proceeding. The judgment ordered that the residence of the minor child was to be relocated to Dallas, Texas, where Ms. Alexander was then employed as a pilot for Fly Jock. In November 2014, Ms. Alexander resigned from Fly Jock. In 2015, she moved to Maryland and worked for UPS and Pilot Options, as a contract employee, and she also worked as a substitute teacher. Ms. Alexander testified at trial that she is the “custodial guardian parent” of their minor child,' and the minor- child is “in [her] home every day” with the exception of visiting his grandparents.

Upon review, we find that the' child’s relocation out of state with his mother, his custodial parent, and her changes in employment were material changes of circumstances that warranted a modification of child support. Thus, considering the great weight given to the trial court regarding its order of child support, we find no error in the trial court’s granting of the rule for modification. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Mr. Alexander argues that the trial court erred when it ordered him to retroactively pay child support from June 2014 to December 2014 in the amount of $1,000.00 per month.

On January 16, 2014, the State filed a Rule to Review Child Support that was set for hearing on March 20, 2014. The hearing was continued until June 12, 2014; however, on March 20, 2014, an intérim judgment of $1,000.00 per month in child support was ordered. At the June 12, 2014 hearing on the Rule to Review Child Support, Ms. Alexander requested that, due to a pending custody hearing, the issue of child support be suspended. The trial court ruled that the child support obligation would remain suspended until the issue of custody was decided, and the 16State would be removed as payee to the obligation. Custody was determined in October 2014; on January 15, 2015, the State filed a Motion1 to Amend Judgment and Rule to Review for Modification, seeking to be reinstated as payee on the order of support.

On appeal, Mr. Alexander argues that because the State was no longer the payee on the order of support as of June 12, 2014, it had no legal right to child support payments until it reopened the case, 'which occurred on January 15, 2015 when the State filed its Motion to Amend Judgment and Rule to Review for Modification. Thus, Mr. Alexander argues that the support obligation cannot be made retroactive past January 15, 2015,

•In its written-reasons for judgment, the trial court noted that “[sjince custody had been decided in October of 2014, lifting of the suspension of child support was in order, and the, amount already in place is hereby reinstated.” It then ordered child support in the amount of $1,000,00 per month for the period of June 2014 to December 2014.

Regarding retroactivity of child support awards, La. R.S. 9:315.21(A) provides:

Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

In this case, the interim child support award of $1,000,00 was suspended in June 2014' as agreed to by both parties, and the State was removed as payee. The State did not make a judicial demand for child support again until it filed its Motion to Amend Judgment and Rule to Review for Modification on January 15, 2015. Thus, pursuant to La, R.S, 9:315.21(A), we find that the trial court erred in ordering the retroactive payment of child support prior to January; 15, 2015, the date of judicial demand. We accordingly reverse that part of the judgment that [ 7orders child support to be paid in the amount of $1,000.00 per month from June 2014 through. December 2014.

ASSIGNMENT OF ERROR NUMBER THREE

In his third" assignment of error, Mr. Alexander argues that the trial court erred in calculating the final child support award without imputing Ms. Alexander’s earning capacity. Mr. Alexander contends that Ms. Alexander was voluntarily underemployed since leaving her job at Fly Jock and failed to prove she acted in good faith. Pursuant to La. R.S. 9:315.11(A), the court was required to impute Ms. Alexander’s income earning potential when calculating the final child support award. Specifically, Mr. Alexander argues that the court should have imputed at least $125,000,00 a year—Ms. Alexander’s salary at Fly Jock—-for the final child support calculation, ...

At trial, Ms, Alexander testified she was previously employed by Fly Jock at-a salary of $125,000.00 per year. She worked there from May 5, 2014 through November 4, 2014 until she resigned. She then worked for UPS from March 2015 to November 2015. She testified that she was currently employed as a substitute teacher for Queen Anne’s County School System. Her pay as a substitute teacher is $11.25 an hour. She was also employed on a contract basis ■ by Pilot Options, which is a contract pilot services company, ■ When asked if she could estimate her monthly-gross income'as of the time of trial, Ms. Alexander stated that she couldn’t because she “just had surgery last year and I’m just' feeling like I’m able to work right now.”

| «When calculating the final child support award, the trial court averaged both parties’ actual 2014 and 2015 monthly incomes. For Ms. Alexander, the court averaged her .2014 monthly income of $10,416.66, which included her Fly Jock salary, and her 2015 monthly income of $3,169.57.

Upon review, we find that the trial court did not err in computing the final child support award by averaging both Ms. Alexander’s 2014 and 2015 incomes. The court included. Ms. Alexander’s employment with Fly Jock as part of her 2014 monthly income, but was not unreasonable in considering her income in 2015, which included employment with UPS and work as a substitute teacher. As noted above, a trial court’s order of child support is entitled to great weight. - Carmouehe, supra. An appellate court will not- disturb a child support order unless there is an abuse of discretion or manifest error. State, D.S.S. ex rel. D.F. v. L.T., supra. We find the trial court, after considering the evidence and testimony presented at trial, was not unreasonable in calculating Ms. Alexander’s income by averaging her 2014 and 2015 incomes. Accordingly, we find no error in the trial court’s calculation of Mr. Alexander’s final child support obligation,

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Mr. Alexander argues that the trial court erred in making the final child support award effective January 2016, the month the trial took place, and not retroactive to the date the State filed its judicial demand on January 15, 2015.

Regarding retroactivity of child support, La. R.S. 9:315.21 provides, in pertinent part:

B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
:(2) If an interim child support allowance award is'not in effect on the date of the judgment awarding: final child support, the judgment shall be retroactive to the date of judicial demand, Rexcept for good cause shown, but in no case prior to the date of judicial demand.
. C. Except for good cause shown, a judgment modifying or, revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case .prior to the date of judicial demand.
E. In the event that the court finds good cause for not making' the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

In this case, the parties were before the court by motion filed by the. State to modify ah existing finál child support judgment, and thus, La. R.S. 9:315.21(C) is applicable. According to La. R.S. 9:315.21(0), except for good cause shown, a judgment modifying or. revoking a final child support judgment shall be retroactive to the date of judicial demand.

Upon review, we find that the trial court erred in making the final support judgment effective--in January 2016 and in. not making- it retroactive to January 15, 2015, the date of judicial demand. We find no “good cause” to make the judgment retroactive only to January 2016. As part of this same judgment, the court calculated the child support owed from January 2015 to July 2015 by using Ms. Alexander’s Fly Jock salary. However, the income used to calculate the interim amount, which the court ruled would remain in place for August 2015 to December 2015, used Ms. Alexander’s income from substitute teaching, which is significantly less, thus making the child support obligation more. Considering the foregoing, we find that the final child support order should be retroactive to the date of judicial demand, and thus, reverse the trial court’s finding on this issue and amend the judgment to make the child support award of $1,443.89 effective on January 15, 2015. The trial court’s other interim child support awards for 2015 ($1,333.46 per month for the period from January 2015 through July 2015, and hn$l,730.00 per month for the period from August 2015 through January 2016) are vacated.

ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth assignment of error, Mr. Alexander argues that if this Court does not find that the final child support award should be retroactive to the date of judicial demand, then the trial court abused its discretion in applying the interim judgment from August 2015 to January 2016 without calculation of the child support obligation. Considering our finding in Assignment of Error Number Four, this assignment of error is moot.

ASSIGNMENT OF ERROR NUMBER SIX

In his final assignment of error, Mr. Alexander argues that the trial court erred by including Mr. Alexander’s per diem allowance and overtime pay when calculating his income. Mr. Alexander argues that his November 2015 check stub included a per diem allowance; however, the trial court did not deduct this per diem allowance when calculating his income to determine child support. Mr. Alexander also argues that the trial court erred by not using his base salary as his income because “any amount over the base salary was not guaranteed and would require the party to work excessive overtime.” Finally, Mr. Alexander argues that the trial court failed to recognize his on the job injury precluded him from working overtime.

Mr. Alexander is a first officer working for Delta Airlines. His base salary is 65 hours at $155.35 per hour. Mr. Alexander testified that the last time he flew was June 12, 2015 due to a work injury. He testified that for the first 90 days, he was on worker’s compensation. Then, Delta started using his “sick bank,” but that has since been depleted. Regarding his earnings during 2015, he testified that in the first quarter of 2015, which included January, February, and March, he averaged $21,244.00 per month. In ,the second quarter, which included April, In May, and June, he averaged $17,033.67 per month. For the third quarter, which included July, August, ■ and September, he averaged $17,009.67 per month. For the fourth quarter, which only included October and November, . he averaged $18,354.00 per month.

In calculating Mr. Alexander’s monthly income for the final child support order, the trial court averaged his 2014 monthly income of $16,115.40 and his 2015 monthly income of $17,902.81. The guidelines for determination of child support are set forth in La. R.S. 9:315, et seq. La. R.S. 9:315C(3) defines “gross income,” and La. R.S. 9:315C(3)(d)(ii) and (iii) note that per diem allowances which are not subject to federal income taxation and extraordinary overtime are not to be considered “gross income.”

Upon review, we find that Mr. Alexander failed to prove that his income used by the trial court in its calculation of his child support obligation included per diem allowances. At trial, Mr. Alexander testified that his income included per diem allowances. However, he neither testified to nor provided the court with any evidence concerning exactly what part or how much of his income was per diem allowances. Regarding overtime pay, although Mr. Alexander testified that he had been on disability which precluded him from working overtime or receiving overtime pay, we find that he did not present sufficient evidence at trial- to support his testimony regarding his disability and the income he received or would receive as a result of his disability. Thus, considering Mr. Alexander’s lack of evidence to support his testimony regarding his per diem and overtime pay, we find that the trial court was not unreasonable in its final child support calculations. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s ruling granting the State’s rule for modification; reverse the trial court’s order to pay child support for 112the months of June 2014 through December 2014 in the amount of $1,000.00 per month; affirm the trial court’s calculation of the final child support award of $1,443.89; reverse its order that the final child support award become effective January 2016; and amend the judgment to reflect that the final child support award is to be effective on January 15, 2015, the date of judicial demand.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART

      . Adrienne Christrel McBurrows Alexander v. Craig Anthony Alexander, No. 59,936, 40th Judicial District Court, Parish of St. John the Baptist, State of Louisiana.

      , Said Order further provided that Mr. Alexander’s child support obligation would be $381.00 per month effective from May 1, 2014 to May 31, 2014, and $465.00 per month effective on June 1, 2014.

      ; This date appears to be in error, as the original judgment was signed on May 11, 2012.

      . La. R.S. 9:315.11(A) provides:
      A. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party's income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey. Absent evidence of a party’s actual income or income earning potential, there is a re-buttable presumption that the party can earn a weekly gross' amount equal to thirty-two hours at a minimum wage, according to the laws of his state of domicile or federal law, whichever is higher.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    Tami J. LUFT v. WINN DIXIE MONTGOMERY, LLC d/b/a Winn Dixie, Winn Dixie Stores, Inc., ABC Insurance Company, XYZ, Inc., and DEF Insurance Company
    NO. 16-CA-559
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, TAMI J. LUFT, Leo J. Palazzo, Jason J. Markey
    COUNSEL FOR DEFENDANT/AP-PELLEE, WINN DIXIE MONTGOMERY, LLC AND WINN DIXIE STORES, INC., Stephen N.. Elliott, Caroline D. Elliott'
    Panel composed of Susan M. Chehárdy, Marc E. Johnson, and Robert A. Chaisson
   CHEHARDY, C.J.

11 Plaintiff, Tami Luft, appeals the 24th Judicial District Court’s April 11, 2016 judgment granting summary judgment in favor of defendant, Winn-Dixie Montgomery, LLC (“Winn-Dixie”), and dismissing with prejudice' Ms. Luft’s slip- and-fall claim against Winn-Dixie. For the reasons that'follow, we affirm this judgment of the district court.'

FACTS AND PROCEDURAL HISTORY

On April 20, 2016, Ms. ,Luft filed suit against Winn-Dixie for damages arising out of a May 21, 2014 slip-and-fall incident at the Winn-Dixie store in Gretna, Louisiana. Ms. Luft alleged that she sustained injuries when she tripped and fell on a clear piece of plastic from shelving in the store.

Following preliminary discovery, on February 16, 2016, Winn-Dixie filed a motion for summary judgment, claiming that Ms. Luft could not satisfy her burden of proof under La. R.S. ,9:2800.6. Winn-Dixie argued that Ms. Luft could not prove that Winn-Dixie either created or had actual or constructive .notice of the condition that allegedly caused her to trip and fall. In support of its motion for summary judgment, Winn-Dixie attached the deposition of Ms. Luft and an affidavit of Jason Lol-lis, the manager on duty at the time of the incident.

In Ms, Luffs deposition, she explained that after getting off work at 6:00 a.m. on May 21, 2014, she slept until 3:00 p.m., watched television,' and then around 5:00 p.m., went to the Winn-Dixie store at the corner of Belle Chasse Highway and Wall Boulevard in Gretna for snacks and bread. She picked up a bag of pretzels on the chip aisle and continued toward the back of the store to pick up bread when she hit something with her left foot, twisted her right knee, and fell to the ground, catching herself with her hands. On the ground she found a clear piece of plastic that was 4 inches tall, 18-20 inches long, and appeared to have been dislodged from the bottom shelf near the site of her fall. There were other similar Upieces of plastic on the bottom shelf, keeping the products in place. These, plastic barriers were not protruding into the aisle, but were flush with the front of the shelf. Ms. Luft stated that she did not see the plastic prior to her fall and did not know where the piece she found on the ground was located before her fall.

The on-duty manager, Jason Lollis, helped Ms. Luft up off the ground and had her complete and sign an accident report. Ms. Luft did not seek medical attention at that time and was able to walk on her own. She picked up two loaves of bread and left the store. In his affidavit, Mr. Lollis attested that he had no prior knowledge or notice of any potential problem with thé plastic barrier on the bottom shelf of the chip aisle.

To her opposition to Winn-Dixie’s motion for summary judgment, Ms. Luft attached her deposition, her affidavit, a deposition of Jason' Lollis, as well as photographs of her injuries and the scene of the incident.

Mr. Lollis explained in his deposition that he was the on-duty manager on -May 21, 2014 and that the chip aisle was under his supervision. As an on-duty manager, Mr. Lollis’ duties include “store walks,” which are walk-throughs of the store to inspect and assess various issues, such as cleaning, stocking, and safety. He explained that Winn-Dixie’s policies and procedures recommend these store, walks should occur at specified times throughout the day, including a walk between 4:00 and 5:00 p.m. Mr. Lollis stated that he did not inspect the chip aisle between 4:00 and 5:00 p.m. on May 21, 2014, that he could not confirm if another employee did so, and that he did not know the last time, an inspection of the aisle was performed prior to the incident.

Both parties agree that the video surveillance footage from the store, which was not considered by the district court, did not capture the incident or the,, area lawhere the incident occurred.

On March 23, 2016, following a hearing on Winn-Dixie’s motion, the court granted summary judgment in favor of Winn-Dix-ie, The court found that Ms. Luft could not prove the notice’ element of her claim against Winn-Dixie. In the signed judgment that followed on April 11, 2016, the court granted summary judgment in favor of Winn-Dixie and dismissed with prejudice Ms. Luft’s claim against Winn-Dixie. The court designated this judgment as final pursuant to La. C.C.P. art. 1915.

On April 21, 2016, Ms. Luft filed a motion to set aside the judgment and for new trial, arguing that the granting of the motion for summary judgment was contrary to the law and evidence. Following a hearing on May 31, 2016, the court denied this motion in a judgment on June 3, 2016. Ms. ■Luft appeals the district court’s April 11, 2016 and June 3, 2016 judgments.

DISCUSSION

On appeal, Ms. Luft argues that the district court erred in granting Winn-Dixie’s motion for summary judgment and erred in denying her motion to set aside judgment and for new trial.

We conduct a de novo review of a judgment granting a motion for summary judgment. Richthofen v. Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639. Under this standard of review, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Id.

“[A] motion for summary judgment shall be granted'if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.. 966(A)(3). “[I]f the mover will not bear the burden of proof at trial on [4the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1). “The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment •as a matter of law.” Id.

Here, Winn-Dixie is the mover who will not bear the burden of proof at trial. Accordingly, in its motion for summary judgment, Winn-Dixie sought to point out the absence of factual support for one of the essential elements of Ms. Luft’s slip- and-fall claim.

To succeed on a slip-and-fall claim against a merchant, the plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements. of La. R.S. 9:2800.6. Evans v. Winn-Dixie Montgomery, LLC, 15-191 (La.App. 5 Cir. 10/28/15), 177 So.3d 386, 391. These additional requirements are set forth in La. R.S. 9:2800.6(B), which provides:

In a'negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable . care, the absence of a written or verbal uniform cleanup or safety procedure.is insufficient, alone, to prove failure to exercise reasonable care,

IsA failure to prove any of these elements is fatal to the plaintiffs cause of action. Evans, supra, at 392.

In its motion for summary judgment, Winn-Dixie alleged that Ms. Luft had failed to produce factual support for the element in (B)(2): that Winn-Dixie either créated or had actual or constructive notice of the condition which caused her injuries, prior to the incident. In support of this contention, Winn-Dixie submitted the affidavit of Ms. Luft, who stated that she neither saw the plastic,nor knew of its position before her fall. Winn-Dixie argued that since the testimony of the only witness to the fall, the plaintiff herself, does not establish the existence of the alleged condition, Ms. Luft is unable to prove that Winn-Dixie either created’or had actual or constructive notice of the alleged condition prior to her fall.

The burden shifted to Ms: Luft to produce factual support sufficient to establish that genuine issues of material fact remain or that Winn-Dixie is not entitled to judgment as a matter of law. Ms. Luft submitted the deposition testimony of Mr. Lollis and argued Winn-Dixie’s failure to comply with its recommended inspection procedures established that Winn-Dixie had constructive notice of the condition. She argued that by failing to comply with its inspection procedures, Winn-Dixie failed to exercise reasonable care. If Winn-Dixie had exercised reasonable care and followed its inspection procedures, the condition would have been discovered and remedied prior to the incident. Therefore, she maintains Winn-Dixie-had constructive notice of the condition.

We do not find this argument persuasive and find that Ms. Luft failed to carry her burden of establishing the- existence of genuine issues of material fact with regard to the contested element of notice. Ms. Luft did not offer any evidence indicating that Winn-Dixie either created or had actual notice of the alleged condition. First, there was no evidence offered to suggest, for instance, that,the plastic barrier in question had been improperly installed or had been dislodged by | f;an employee. Second, the only evidence offered bearing upon actual notice was Mr. Lollis’ unrebut-ted testimony that he had no prior knowledge or- notice of any potential problem with the plastic barrier on the bottom shelf of the chip aisle. And third, though Ms. Luft maintains the evidence of Winn-Dix-ie’s failure to comply with its 'inspection procedures is sufficient to prove constructive notice, as the following demonstrates, this argument is without merit.

“ ‘Constructive notice’ means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(0(1). To carry the burden of proving this temporal element, a plaintiff must present “positive evidence” of the existence of the condition prior to the accident. Evans, supra. Whether .the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. White v. Wal-Mart Stores, 97-0393 (La. 09/09/97), 699 So.2d 1081, 1084. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Id. Though the time period need not be specific in minutes or hours, constructive .notice requires that the claimant prove the condition existed for some time period prior to the fall. Id. at 1084-85.

For instance, the Louisiana Third Circuit found this temporal element had been satisfied with evidence that the substance that had caused the plaintiffs fall was ’ “mushy” and located in the frozen food aisle, suggesting it had been oh the floor long enough for it to have melted. Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d 327, 329. The court. concluded: “Since Wal-Mart employees did not discover the spill in the time it took for the substance to melt, Wal-Mart did not exercise reasonable care in alleviating a foreseeable risk of 17harm.” Id. Other types of evidence held sufficient, to show .that a condition; has existed for some period of time include footprints, shopping cart tracks, or dirt in a spilled substance. See Allen v. Wal-Mart Stores, 37,352 (La.App. 2 Cir. 6/25/03), 850 So.2d 895, 898. Such evidence suggesting that a condition has existed for some period of time permits the inference that a merchant has failed to exercise reasonable care ahd so is deemed to have constructive notice'of the injury-causing condition.

Here, Ms. Luft’s argument inverts this reasoning. She contends that Winn-Dixie’s failure to exercise reasonable care, by failing to adhere to inspection procedures, proves that the condition existed for some period of time, and thus, that Winn-Dixie had' constructive notice of it. This argument fails for several reasons. First, it impermissibly shifts the burden to Winn-Dixie to prove it acted with reasonable care. The Louisiana Supreme Court has rejected a similar argument: “[B]y finding constructive notice based on a lack of uniform, mandatory clean-up procedures, the [Welch] Court effectively shifted the burden to the defendant merchant to prove that it acted reasonably.” White, supra, at 1085. Second, this argument is at odds with the plain language of La. R.S. 9:2800.6(C)(1): - “ ‘Constructive notice’ means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” (Emphasis added). And third, it conflicts with the jurisprudence that requires a plaintiff to present “positive evidence” of the existence of the condition prior to the accident. Evans, supra.

IrMs. Luft’s argument-that the condition would have been discovered and remedied prior to the incident if Winn-Dixie had followed its inspection procedures assumes, without factual support, that there was a discoverable condition capable of remediation. Her argument essentially invokes the doctrine of res ipsa loquitur. because she fell, there must have been a hazardous condition. This is not enough to satisfy her burden of proof under Louisiana’s merchant liability statute. Ms. Luft has offered no evidence to show that a condition existed or that a condition existed for some period of time prior to her fall. As such, Ms. Luft cannot prove that Winn-Dixie had constructive notice of the condition prior to her fall.

Upon our de novo review, we conclude that Winn-Dixie is entitled to judgment as a matter of law and that the district court properly granted summary judgment in favor of Winn-Dixie. Accordingly, we likewise find that the district court did not err in its June 3, 2016 judgment denying Ms. Luft’s motion to set aside judgment and for new trial.

DECREE

For the foregoing, reasons, we affirm the district court’s April 11, 2016 judgment granting summary judgment in favor of Winn-Dixie and dismissing with prejudice Ms. Luft’s claims against Winn-Dixie. We also affirm the district court’s June 3, 2016 judgment denying Ms. Luft’s motion to set aside judgment and for new trial.

AFFIRMED

      , The district court excluded the video surveillance footage because the court found it was improperly offered by Winn-Dixie when it was attached to Winn-Dixie’s reply métno-randum in support of its motion for summary judgment,

      , In White, the Louisiana Supreme Court overruled its previous decision in Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La. 5/22/95), 655 So.2d 309. The White Court explained:
      Because La. R.S. 9:2800.6(B) clearly and unambiguously requires the claimant to prove each of its three subsections with no shifting of the burden, ánd because in order to prove constructive notice the statute clearly .and unambiguously requires that the claimant prove that the damage causing condition existed for some period of time prior to the occurrence, we overrule Welch, 655 So.2d 309, which allowed for a finding of constructive notice absent a showing that the condition existed for some period of time prior to the occurrence and which provided for a shifting of the burden to the defendant merchant to prove it exercised reasonable care,

        White, supra, at 1085.


text:
    Bonnie Simon FRAZIER v. COVENANT SERVICES WORLDWIDE & Esis
    NO. 16-CA-744
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, BONNIE SIMON FRAZIER, Daniel J. Frazier, Jr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, COVENANT SERVICES WORLDWIDE & ESIS, Leslie E. Hodge, Kelly F. Walsh, Joann T. Hymel
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

_JjOn appeal in this workers’ compensation case, claimant seeks review of the judgment denying her supplemental earnings benefits. For the following reasons, we affirm.

Facts and Procedural History

On January 12, 2010, claimant, Bonnie Frazier, was injured during a training exercise while in the course and scope of her employment as a security guard-for Covenant Services Worldwide (“Covenant”). As a result of the incident, Ms. Frazier suffered a rotator cuff tear in her right shoulder. By October of 2012, Ms. Frazier had undergone three surgeries on her right shoulder. Covenant paid indemnity benefits and medical benefits for treatment associated with the injury.

On July 17, 2013, Ms. Frazier’s treating orthopedist, Dr. Felix Savoie, examined her, found that she had reached maximum medical improvement, and released her from his care “at MMl with 10% PPL” Dr. Savoie noted that Ms. Frazier had permanent restrictions against lifting over five pounds above her head; against lifting more than 20 pounds from her waist to her shoulder; and from carrying more than 30 pounds. That day, Dr. Savoie also approved a Security Officer. position .that Covenant was offering to Ms. Frazier.

On September 23, 2013, Ms. Frazier accepted the Security Officer position, which commenced on October 1, 2013. The job description entailed “driving a car, truck, or other equipment” and “periodic running to respond to emergency situations.” Ms. Frazier underwent- training for several days then began her regular shifts on Monday, October 7, 2013.

On Tuesday, October 8, 2013, Ms. Frazier reported for duty but called the site manager, Vicki Bryant, to ask to be relieved of duty since she was in severe shoulder pain. Ms. Bryant sent another security guard, Jill Delatte, to relieve Ms. Frazier. Before Ms. Frazier left, she wrote a note stating that she was “leaving | ¿work •tonight because of my right, side of neck and shoulder is hurting very bad.” Ms. Delatte reported in her statement that Vicki Bryant stated that, if Ms. Frazier is quitting, she is to leave her vest, badge, and uniform. Ms. Frazier left her vest and badge with Ms. Delatte. Ms. Frazier did not report to work again.

On September 30, 2014, Ms. Frazier filed a Disputed Claim for Compensation Form 1008 contending that Covenant and its insurer had unlawfully terminated her wage benefits on or about October 4, 2013. Ms. Frazier also sought penalties and attorney fees.

After numerous continuances, the trial judge issued its scheduling order on March 8, 2016, and both parties filed pre-trial statements. In response to the claimant’s pre-trial statement, Covenant filed a Motion to Strike Additional Issues presented in claimant’s pre-trial statement, namely issues not raised in claimant’s 1008 such as “permanent work related disability in light of her permanent injury, mental instability,” “whether employee’s ... severe mental impairment [was] caused by' her work related injury,”- and “employee’s earning capacity in light of her permanent partial physical disability- and mental impairment.” , -

On July 13, 2016, Covenant’s Motion to Strike was heard and granted. The Office of Workers’ Compensation (“OWC”) judge found that, “the trial on the merits will address Bonnie Frazier’s entitlement to SEBs after October 8, 2013 regarding her right shoulder. The mental stress injury claim and psychological claim will not be addressed because these issues were not pled in Bonnie Frazier’s 1008,”

Immediately thereafter, Ms, Frazier’s disputed claim came for trial before the OWC judge. After hearing the testimony and evidence, the judge found that, on October 8, 2013, Ms. Frazier terminated her employment and', thus, the employer did not owe SEBs. On August 29,2016, the trial judge issued its written judgment to that effect. Ms, Frazier appeals that judgment.

^Preliminary Note

As a preliminary matter, we note that, in its August 29, 2016 written judgment, the OWC court inadvertently cited two dates incorrectly. First, the court found that the claimant voluntarily- quit on October 8, but the record reflects that' she left her shift after midnight, so her correct termination date was October 9, 2013. Further, twice the court noted the wrong year of termination, which was 2013, by stating that “the employer does not owe SEBs ... after October 8, 2016” and declined to award a credit “for SEBs paid after October 8, 2016”

La. C.C.P. art. 2164 requires an appellate court to “render ... judgment which is just, legal, and proper upon the record on'appeal.” Accordingly, we correct these typographical errors by amending the judgment to reflect the correct date of termination and the date after which the employer does not owe SEBs or deserve a credjt to October 9,2013;

Law and Argument

Returning now to the merits of Ms. Frazier’s appeal, she assigns four errors: first, Covenant failed to carry its' burden of proof set forth in La. R.S. 23: 1221(3)(c)(ii) that it provided an appropriate job to the claimant; second, the lower court erred in failing to review all of the evidence before rendering a judicial decision; third, the lower court erred in excluding evidence of claimant’s mental condition and total disability at trial;" and fourth, the trial judge erred in finding that appellant was' not entitled to penalties and attorney fees.

The Workers’ Compensation Act set up a court-administered system to aid injured workmen by relatively informal and flexible-proceedings, Rhodes v. Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64. The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker. Coats v. AT & T, 95-2670 (La. 10/25/96), 681 So.2d 1243.

LFactual findings in a workers’ compensation ease are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing and Sheet Metal, 96-2840 (La. 7/1/97), 696 So.2d 551, 556. The determinations by . the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged her burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong, Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La. 1992).

The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Wise v. H.B. Zachary Co., 00-3 (La.App. 5 Cir. 4/25/00), 760 So.2d 500. In applying the manifest error/clearly wrong standard, the appellate court does not. determine whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id, If the factual findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Marange v. Custom Metal. Fabricators, Inc., 11-2678 (La. 07/02/12), 93 So.3d 1253, 1257, 1260 (citing Stobart v. State, DOTD, 617 So.2d 880, 883 (La. 1993)).

In her first assignment of error, Ms, Frazier argues that the trial court erred in finding that she was not entitled to SEBs. “The purpose of. SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply Co., 619 So.2d 52, 65 (La. 1993). Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the [ r,evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Seal v. Gaylord Container Corp., 97-688 (La. 12/02/97), 704 So.2d 1161, 1166.

In the instant case, Ms. Frazier’s treating physician approved a security guard position as appropriate for Ms. Frazier’s post-injury/post-surgery abilities. Ms. Frazier accepted that job with Covenant, completed training, worked one shift, then, due to her shoulder pain, left during her second shift. Ms. Frazier did not report to Covenant again after .leaving her second shift. At trial, the judge found that Ms. Frazier had “voluntarily quit her job with Covenant ... on October 8, 2013.”

In Chaisson v. Cajun Bag and Supply Co., 97-1225 (La. 3/4/98), 708 So.2d 375, 384, the Louisiana Supreme Court held that the employer’s offer to. place the employee “in a position that [she] could do [in spite of the injury] defeated the employee’s claim for SEBs.” Here, Ms. Frazier’s treating physician felt.that the position, which Covenant offered and Ms. Frazier accepted, was within her physical capabilities, which included driving. Further, the record reveals that the new job was “within the claimant’s or employer’s community or reasonable geographic region,” and was actually closer than her previous job. See Banks, 696 So.2d at 559. Thus, Ms. Frazier did not carry her burden of proving that the injury resulted in her inability to earn 90% of her pre-injury wages.

However, under La. R.S. 23:1221(3)(C)(iii), “if the employee establishes by .clear and convincing evidence, ,that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.” Thus, if Ms. Frazier had presented clear and convincing evidence that her pain prevented her from performing her job she would be “deemed incapable of performing such employment.”

16After trial, however, the court found that “claimant did not meet her burden of proof by clear and convincing evidence to establish her job with Covenant ... was not acceptable due to pain.” Here, his. Frazier testified that she was capable of doing the job, if she did not have pain. As part of her return to work, Covenant allowed Ms. Frazier to bring her medical pain-reducing equipment—the “ice machine”—to use during her shift, which she did successfully during her first shift. Jill Delatte testified that she did not see Ms. Frazier’s “ice machine” on the second night.

• Further, the medical records reveal that her treating orthopedist, Dr. Savoie, felt that Ms. Frazier would always have some shoulder pain but that she could return to work with restrictions. In light of the evidence presented in the record, we cannot say that the OWC judge’s findings were manifestly erroneous or clearly wrong. We find no merit in this assignment of error.

In her second assignment of error, Ms. Frazier argues that the lower court erred in failing to review all the evidence before rendering a judicial decision. Specifically, Ms. Frazier contends that the trial judge ruled without reviewing the voluminous exhibits, which included depositions and medical records, and the redacted deposition of Vicki Bryant filed five days after trial.

In workers’ compensation cases, although all findings of fact must be based on competent evidence, the workers’ compensation judge is not bound by technical rules of evidence or procedure, other than as provided under La. R.S. 23:1317(A). However,' it is widely held that, even in workers’ compensation proceedings, a contemporaneous objection, pursuant to La. C.E. art. 103(A)(1) or La. C.C.P. art.1635, is required to-preserve an issue-for appeal. See Whiddon v. Livingston Par. Council, 00-1349 (La.App. 1 Cir. 9/28/01), 809 So.2d 421, 429; Ross v. Remediation Services of Louisiana, 97-2102 (La.App. 1 Cir. 5/15/98), 714 So.2d 218, 220; R.E. Heidt Constr. Co. v. Francis, 07-497 (La.App. 3 Cir. 10/31/07), 970 So.2d 1180, 1184 (failure to object waives appellate review of trial court’s quashal of subpoenas); Broussard v. W.-Cal Constr. Co., 96-18 (La.App. 3 Cir. 6/12/96), 676 So.2d 743, 745-46 (failure to object constitutes a waiver of claimant’s right to eomplain on appeal citing La. C.C.P. art. 1635); Schmitt v. City of New Orleans, 632 So.2d 367, 370 (La. App. 4 Cir. 1993)(City waived its right to challenge by stating that it had no objection to the admission of the appellees’ medical reports).

The record reveals that, immediately after Ms. Frazier’s counsel rested after rebuttal, the OWC judge stated, “Okay. I think I’m ready to rule. I’m ready to rule.” Without any objection by counsel for Ms. Frazier, the OWC judge presented several pages of verbal reasons before ruling. In this case, any issue 'that Ms. Frazier had regarding the timing of the OWC judge’s ruling was not preserved for review on appeal. This assignment will not be addressed.

In her third assignment of error, Ms.- Frazier contends that the lower court erred in excluding evidence of claimant’s mental condition and total disability at trial. The record reflects that, in a status conference in early July, the OWC judge reviewed the claim to be tried, which was the termination of SEBs. In her pre-trial statement, Ms. Frazier raised claims regarding her mental health, which the OWC judge struck, at Covenant’s request, as not yet raised in a Disputed Claim for Compensation Form 1008. Thus, we find no error in the workers’ compensation judge’s finding that Ms. Frazier’s allegations regarding her mental health had not yet been raised in the proper procedural manner. Thus, there is nothing in the trial Iscourt’s judgment or this opinion that would preclude Ms. Frazier from pursuing a mental health claim. This assignment of error lacks merit.

In her final assignment of error, Ms. Frazier argues that the trial court erred in failing to award penalties and attorney fees for Covenant’s termination of SEBs. La. R.S. 23:1201(F) provides the basis for an award of attorney fees and penalties in a workers’ compensation matter. This provision, however, is inapplicable if the claim is reasonably controverted. The workers’ compensation judge has great discretion in the award of attorney fees and penalties, and the exercise of such discretion will not be disturbed on appeal unless clearly wrong. Alix v. E-Z Serve Corp., 03-24 (La.App. 5 Cir. 4/29/03), 846 So.2d 156, 160.

In the instant case, Covenant discontinued the payment of SEBs after Ms. Frazier left their employment. The OWC judge found that Covenant had a reasonable basis for discontinuing payment and denied attorney fees and penalties. Upon review, we find no error in that ruling. This assignment of error is without merit.

Conclusion

For the foregoing reasons, we find no error in the workers’ compensation judge’s ruling in this case. Accordingly, as noted above, we amend the judgment to correct typographical errors and affirm as amended.

AMENDED AND AFFIRMED AS AMENDED

      . La. C.C.P. art. 1635 reads:
      Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known 'to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of ah objection does not thereafter prejudice him.

      . La. R.S. 23:1021 (8)(c) reads "A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not com-pensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.” Further, La. R.S. 23:1021(8)(d) reads, "No mental injury or illness shall be compen-sable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established by the American Psychiatric Association.”


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. George Edward HIGGINS, Appellant
    No. 51,458-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    ' GEORGE EDWARD HIGGINS, Pro Se
    JOHN MCINTOSH LANCASTER, District Attorney, Counsel for Appellee
    KENNETH DOUGLAS WHEELER, AMANDA MICHELE WILKINS, Assistant District Attorneys
    Before BROWN, MOORE, and STONE, JJ.
   STONE, J.

fThe defendant, George Edward Higgins, pled guilty to forcible rape and sexual battery, and agreed to 40 years at hard labor for forcible rape and 50 years at hard labor for sexual battery,'to be served concurrently, Higgins requested and was granted this appeal; however, appellate counsel filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), alleging there are no nonfrivolous issues upon which to base an appeal. For the following reasons, the motion to withdraw is granted, Higgins’ convictions are affirmed, and his sentences are .vacated and remanded for resentenc-ing.

FACTS AND PROCEDURAL HISTORY

George Edward Higgins (“Higgins”) was indicted by a grand jury for aggravated rape, aggravated incest, and aggravated battery, based on egregious sexual conduct with his juvenile daughter from 2007 to 2013. At the arraignment, Higgins pled not guilty and not guilty by reason of insanity, to all charges. Counsel for Higgins requested the. trial court, appoint a sanity commission and make a determination about Higgins’ competency. The trial court signed an order appointing two physicians to examine Higgins and render reports concerning his mental condition at the time of the alleged offenses, his capacity to understand the proceedings against .him, and his ability to assist in his defense.

Higgins pled guilty to the lesser charges of attempted aggravated rape and sexual battery. The trial court accepted Higgins’ guilty pleas and sentenced him to 50 years at hard labor, without the benefit of parole, probation, or suspension of sentence, for the attempted aggravated rape conviction and 50 years at hard labor, 25 years of which would be served ^without probation, parole, or suspension of sentence, for the sexual battery conviction. However, the trial court failed to conduct a sanity hearing and this Court was forced to vacate Higgins’ convictions and sentences and remand the matter.

On remand, a sanity hearing was conducted and based on the reports of the appointed physicians, the trial court found Higgins was competent at the time of the alleged crimes, and competent to stand trial. The state subsequently charged Higgins by an amended bill of information with forcible rape in violation of La. R.S. 14:42.1, and sexual battery, in violation of La. R.S. 14:43.1. In exchange for his guilty pleas, Higgins agreed to serve 40 years at hard labor for the forcible rape conviction and 50 years at hard labor for the sexual battery conviction, with the sentences to run concurrently.

Higgins requested and was granted this appeal. His appellate counsel has filed an Anders brief, seeking to withdraw, on grounds that he could find no nonfrivolous issues to raise on appeal. See Anders v. California, supra, State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La. 04/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir. 1990).

DISCUSSION

We note appellate counsel’s brief contains no assignments of error and conforms to the procedures set forth in Anders and Jyles, supra. The brief outlines the facts and procedural history of the case and the action of the trial court. The brief also contains “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Appellate counsel further verifies lain his certificates of service that he has mailed copies of the motion to withdraw and appellate brief ’to Higgins, in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

In accordance with the applicable jurisprudence, appellate counsel also notified Higgins of his right to file a pro se brief and sought to withdraw from the case. This court issued an order holding the motion to withdraw in abeyance and rescinding the pro se briefing deadline. Higgins was granted an additional 30 days to file a pro se brief and an additional 10 days to view'the'appellate record. To date, rio pro se brief or any other brief has been, received on Higgins’ behalf.

After a thorough examination of the appellate record, we agree with appellate counsel that there are no nonfrivolous issues to be raised on appeal. Higgins was properly charged by an amended bill of information.' Higgins was present in court and represented by counsel at all important stages of the proceedings. His guilty pleas complied with the law and he freely and . voluntarily entered into a valid plea agreement. The trial court advised Higgins of the nature of the charges against him, the consequences of ⅛ his guilty pleas, and the sentencing ranges he would have been exposed to had he not entered into the plea agreement. Higgins was properly advised of his rights and agreed to the imposed. concurrent sentences of 40 years and 50 years, at hard labor. Accordingly, appellate counsel’s motion to withdraw is granted.

ERROR PATENT

Our error patent review of the record revealed the trial court failed to impose proper restriction of sentence benefits as to each conviction. A defendant convicted of forcible rape shall be imprisoned for not less than 5 Lyears nor more than 40 years at hard labor. At least 2 years of the sentence must be served without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:42.1(B). Likewise, a defendant convicted of sexual battery under La. R.S. 14:43.1, when the defendant acted without the consent of the victim, or when the victim had not yet attained 15 years of age and was at least 3 years younger than the defendant, shall be imprisoned at hard labor for no less than 25 years nor more than 99 years. At least 25 years of the sentence imposed shall be served without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:43.1(0(2).

Upon sentencing Higgins, the trial court failed to address the restriction of benefits for each sentence, and this failure renders Higgins’ sentences illegally lenient. Since the trial court maintains some discretion as to the length of the benefit restrictions, this error cannot be cured on appeal. Accordingly, the sentences are vacated and the case is- remanded for resen-tencing in compliance with La. R.S. 14:42.1 and La. R.S. 14:43.1(C)(2). State v. Downs, 50,345 (La. App. 2 Cir. 01/13/16), 186 So.3d 207; State v. Carter, 43,304 (La. App. 2 Cir. 06/18/08), 987 So.2d 364, writ denied, 08-2752 (La. 09/25/09), 18 So.3d 86.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and Higgins’ convictions are confirmed. Higgins’ sentences are vacated, and the matter is remanded for resentencing.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED WITH INSTRUCTIONS.


author: PERRET, Judge.

text:
    CITY OF ALEXANDRIA v. Kendall DIXON
    CW 17-327
    Court of Appeal of Louisiana, Third Circuit.
    September 20, 2017

      Eugene P. Cicardo, Jr., Joseph M. Reynolds, Post Office Box 1128, Alexandria, LA 71309-1128, (318) 445-2097, Philip G. Hunter, Hunter & Beck, P. 0. Box 11710, Alexandria, LA 71315-1710, (318) 487-1997, COUNSEL FOR DEFENDANT/APPLICANT: Kendall Dixon
    Michael J. O’Shee, Steven M. Oxenhan-dler, Gold, Weems, Bruser, Sues & Run-dell, P. 0. Box 6118, Alexandria, LA 71301, (318) 445-6471, COUNSEL FOR PLAINTIFF/RESPONDENT: City of Alexandria
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges
   PERRET, Judge.

_JjThe Relator, Kendall Dixon, seeks supervisory review of a trial court judgment that denied multiple exceptions and a motion to strike, and which reversed the decision issued by the' Alexandria Municipal Fire and Police Civil Service Board (the Board) finding that Mr. Dixon was wrongfully terminated by the Respondent, the City of Alexandria (the City). For the following reasons, we hereby grant the writ to reverse that part of the trial court’s judgment that reversed the Board and consequently discharged Mr. Dixon from employment with the City.

FACTS AND PROCEDURAL HISTORY

In 2014, Mr. Dixon was terminated from employment with the Alexandria Fire Department for testing positive on- two breath alcohol tests. Mr. Dixon appealed his termination to the Board, arguing that the device used was not an approved testing device and that the results from the test should be excluded. After a hearing, the Board agreed with Mr. Dixon and excluded the allegedly deficient breath alcohol test results and reinstated his .employment with the City. However, the trial court reversed the Board’s decision, finding the Board should have considered the breath alcohol test results. This court overturned the trial court, and reinstated Mr. Dixon’s employment with the City. In City of Alexandria v. Dixon, 15-1718 (La. 5/3/16), 196 So.3d 592, the supreme court issued an opinion, reversing this court’s décision disallowing consideration of the test results, and stated.as follows:

Although we also find the City did not adhere to its own Substance Abuse Policy and thus reverse that-finding by the trial court, we nevertheless determine that, based on Pullin [v. Louisiana State Racing Comm’n, 484 So. 2d 105 (La.1986) ], the test results are admissible subject to whatever the weight the Board may choose to assign to the.test results.

196 So.3d at 601 (emphasis added).

On June 22, 2016, in compliance with the supreme court’s instruction, the Board again considered Mr. Dixon’s appeal of his termination, and again concluded that the City improperly terminated him. Accordingly, the Board reinstated Mr. Dixon to his position with the Alexandria Fire Department. Thereafter, the City filed a second appeal to the trial court, while Mr. Dixon filed the following exceptions and motion: (1) a Motion to Strike and Randomly Allot; (2) the Peremptory Exception of Prescription (alternatively of Per-emption); (3) the Peremptory Exception of Nonjoinder of a Party; (4) the Declinatory Exception of Insufficiency of Service of Process; (5) the Declinatory Exception of Lack of Jurisdiction Over the Person; and (6) the Peremptory Exception of No Cause of Action.

After a two-day hearing, the trial court ré'ndered a judgment whereby it denied all of Mr. Dixon’s exceptions and motion, and reversed the Board’s decision to reinstate Mr. Dixon to his position with the City. At the conclusion of the'hearing, on December 16, 2016, the trial court stated, in pertinent part:

Number one, the results of a Phoenix 6.0 are just as accurate as the Intoxilyzer 5000 and 9000 based upon the evidence that I heard. The variance of a Lifeloc (which manufactures the Phoenix • 6.0 breathalyzer) is point zero, zero, five and the Intoxilyzer 5000/9000 is a point zero, one, zero. That’s the margin of error.
Number' three (sic), the Phoenix 6.0 is a good instrument for testing, ... breath alcohol.
Number four, the Phoenix 6.0 was in proper working order, was certified and the technician was certified to operate the machine. I find nothing about the way that the cus—the test was conducted that was inappropriate or would have any negative effect on the test.
UNumber five, ... the Court finds th^t his ethanol, his ethyl alcohol level was—well this was 11/22, was point zero, one, eight and fifteen minutes later—no, it’s the other way around. His alcohol level was. a point zero, two and fifteen minutes later it was a zero, one, eight.
Number six, for a novice drinker his blood alcohol at' seven was a zero, six and at seven o’clock if he was an average drinker, it was a point zero eight. Therefore,. I find that his blood alcohol when he showed up for work was between an 'o, six and an o, eight.
Number seven, I find, of course, that 'the City has a zero' tolerance level, and number eight, that Kendall Dixon violated the' City policy on April the 22nd,' 2014.
... based upon those findings and conclusions, I’m gonna find that Mr. Dixon’s reinstatement is arbitrary, capricious and abuse of discretion. I think that the evidence shows that he violated the policy obviously greater than a preponderance of the evidence almost to beyond a reasonable doubt and that there was' manifest error by the, by the Board doing what they did. Everybody says the machine was in proper working order. His test result violated the zero pol, [sic] uh, zero tolerance order and because of that he violated the order. How anyone can find, uh, anything else to me is, um, is beyond me.
I, I wrote last night, um, when I was sitting around my house, it dawned on me everything that I read. The Board was either not listening, they didn’t care about the evidence, or they had already made up their mind. If you use region, [sic] reason, logic and common sense like we use in the Court, in criminal court, I don’t see how they could have come up with that decision and I believe that it was abuse of their discretion and it was manifest error.
The Court, as I’ve said, has .found the overwhelming evidence that alcohol was present in his system and that he, uh, violated the City.substance abuse policy and, therefore, I reverse the finding of the Civil Service Commission and that Dixon—reverse the Civil Service Commission and I affirm, uh, the' City of Alexandria’s decision to terminate his employment as of August the 22nd, 2014.

Mr, Dixon now seeks review of the trial court’s March 2, 2017 judgment, and alleges the following nine assignments of error: (1) whether the trial court ^applied the wrong standard of review in reviewing the Board’s July 22, 2016 judgment and substituted its own judgment for that of ’the Board’s; (2) whether the trial court erred in denying his Motion to Strike and Randomly Allot when the City filed documents concerning the new civil service appeal within a docket number assigned to his previous civil service appeal; (3) whether the trial court erred in denying his Peremptory Exception of Prescription when the City failed to file a Petition to appeal the Board’s June 22, 2016 decision; (4) whether the trial court erred in denying his Peremptory Exception of Nonjoinder of a Party when.the City failed to make the Board a party to the suit; (5) whether the trial court erred in denying his Decli-natory Exception of Insufficiency of Service of Process when the City failed to serve Mr. Dixon with - the Motion For Court to Set Briefing Schedule and Set Appeal Hearing Date; (6) whether the trial court erred in denying his Declinatory Exception of Lack of Jurisdiction when Mr. Dixon had neither subjected himself to the jurisdiction of the trial court nor been served with process; (7) whether the trial court erred in denying his Peremptory Exception of No'Cause of Action when the City failed to- file a Petition to-appeal the Board’s June 22, 2016 decision; - (8) whether the trial court erred in- re-interpreting the City’s Substance Abuse Policy when it was determined that the Phoenix 6.0 is not an approved device under the City’s Substance Abuse Policy; and (9) whether the trial court erred in denying Mr. Dixon an appeal from the March 2, 2017, judgment.

DISCUSSION

Before addressing the merits of this matter, we first note that the trial court correctly denied Mr. Dixon’s Motion for Appeal and properly granted his order for supervisory writ of review. Louisiana Revised Statutes 3'3:2501(E)(1) provides:

| ¡Any employee under classified service and any appointing authority may appeal from any decision of the board,' or from any action taken by the board under the provisions of the Part that is - prejudicial to the employee or appoint- .. ing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.

In such an instance, the Louisiana Supreme Court has explained that the court of appeal lacks appellate jurisdiction over the matter. See Miazza v. City of Mandeville, 10-304 (La. 5/21/10), 34 So.3d 849 (reviewing the substantially similar language of La.R.S. 33:2561(E) and directing the trial court to convert the plaintiffs appeal of the district court’s judgment to an application for supervisory writs). Accordingly, we find that this matter is properly before this court on application for supervisory review.

In his first and eighth assignments of error, Mr. Dixon alleges that the trial court applied the wrong standard of review when reviewing the Board’s July 22, 2016 decision and that it substituted its own judgment for that of the Board. Mr. Dixon argues that the Board, as well as this court and the supreme court, have already found that the Phoenix 6.0 is not an approved device under the City’s Substance Abuse Policy and that the trial court improperly ignored this concrete finding. In response, the City argues that the trial court properly considered the record to determine if a reasonable factual basis existed for the Board’s determination, and that it found such a basis did not exist and ruled accordingly.

This court recently set forth the standard of review to be applied in these civil service employment cases:

Louisiana Revised Statutes 33:2501(C) orders a civil service board to review disciplinary actions by an appointing authority to determine whether the - appointing authority acted “in good faith for cause[.]” “Good faith fails to occur when the appointing authority acts arbitrarily or capriciously or' results from prejudice or political expediency. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976).” Townsend v. City of Leesville, 14-923, p. 2 (La.App. 3 Cir. 2/4/15), 158 So.3d 263, 266, writ denied, 15-703 (La. 6/1/15), 171 So.3d 263. An appeal of a civil service board’s decision lies with the district court who determines whether the civil service board’s decision “was made in good faith for cause[.]” La.R.S. 33:2501(E)(3).
The [district] court accords deference to a civil service board’s factual conclusions which should not be overturned unless they are manifestly erroneous. Shields [v. City of Shreveport ], 579 So.2d 961 [ (La. 1991)]. Likewise, the intermediate appellate court and our review of a civil service board’s factual findings are limited. Id. Those findings, which are entitled to the same weight as the trial court’s factual findings, cannot be overturned in the absence of manifest error. Id.
Townsend, 158 So.3d at 267.

Hewitt v. City of Lafayette, 15-912, p. 5 (La.App. 3 Cir. 3/2/16), 186 So.3d 357, 360-61 (alterations in original).

At the conclusion of the Board’s hearing, on June 22, 2016, one of the Board’s members moved “that the City did not act in good faith and for cause and Mr. Dixon be reinstated to his previous position will [sic] all back pay and everything entitled to him.” Three Board members voted for this motion; two voted against it. Counsel for the City then stated, “Can I ask for a finding of facts about why and get it in writing?” The response was “I think you can ask for one, but the law is that we don’t have to do one if there’s a court reporter, a certified court reporter. And my understanding is that there is one, so.” Then, again, the same person stated, “I don’t think we have to do one.” Immediately subsequent to that exchange, the Board adjourned. Thus, in this case, as noted by the City, there simply are no findings of fact by the Board.

We find the issues presented are whether the decision of the Board “was made in good faith” and whether it was made “for cause.” La.R.S. 33:2501(E)(3). If the Board made the decision “arbitrarily or capriciously” or the decision “results from prejudice or political expediency,” the decision should be overturned. Martin v. City of St. Martinville, 321 So.2d 532, 535 (La. App. 3 Cir. 1975), writ denied, 325 So.2d 273 (La.1976). In this instance, the trial court, after a detailed discussion of the factual x’ecord compiled in this ease, concluded that the Board’s decision was arbitrary and capricious. Although the trial court applied the correct standard of review, we find that it reached the incorrect conclusion.

The trial court found that all of the expert testimony indicated that the Phoenix 6.0 test results were valid. However, we find that some of the expert testimony could be read to indicate otherwise. Mr. Dixon’s counsel called Dennis Kerns, who is a Lifeloc master trainer, a breath alcohol technician for the Phoenix 6.0, and a breath alcohol technician instructor, to testify at the Board’s hearing. When asked, “Is it true that the breath alcohol technicians are instructed by Lifeloc ... that when the results of the screening test results and the results of the confirmation test are different, that only the results of the confirmation test determine the outcome of the breath test?,” he responded, “Yes, that is correct.” When he was also asked, “Is it true that the Lifeloc certified instructors do not train, instruct, or certify, breath alcohol technicians to use the Phoenix 6 [sic] to test for a BAC below .02?,” he again responded, “That is correct.” Thus, arguably, since Mr. Dixon’s confirmation test results were 0.018, the confirmation test results may not have properly been considered as accurate by the technician. However, when opposing counsel asked Mr. Kerns, “And you consider that 0.18 [sic] to be an accurate and reliable reading on August 22nd at 11:38 in the morning, wouldn’t you?,” he responded, ‘Tes, sir.”

I sCounsel for Mr. Dixon also called Doussan Rando, . Ill, who is the Applied Technology Director with the Louisiana State Police, to testify. Mr. Rando testified that he oversees all breath alcohol testing and certifies, or causes to be certified, all the breath alcohol testing devices located in Louisiana. He also evaluates the devices on the market. When asked about the technology used by the Intoxilyzer 5000, i.e., infrared spectrometry, versus .the Phoenix 6.0, i.e., fuel cell, Mr. Rando testified as follows:

Well, infrared, what it does, there’s a sample chamber and whenever you blow a breath sample through there, it looks at absorption of any kind of chemical that might be in your breath. And we know that with the Intoxilyzer 5000, the weight limit for alcohol is somewhere around 3.39 microns, so what it does, it actually looks for alcohol. And if there’s any other substance in the breath it would also detect it too. Now, we know there’s not going to be any other substance in the breath other than if someone had drank [sic] methyl alcohol, but I’ll tell you what, I’ve never seen it in all my years and I have given thousands and thousands of tests.
And, of course, people who are diabetics, you know, it will—it will show up acetone and let us know that acetone is present in the breath alcohol sample. The problem with the fuel cell is that it’s non specific to ethyl alcohol. So if acetone’s on breath, you know, it will show a positive there and you don’t really know if it’s alcohol or if it’s acetone.

In closing argument, counsel for Mr. Dixon stated that Mr. Dixon was diabetic and stated that “it’s in evidence” and the City does not argue otherwise.

Michael Moore, an expert in forensic toxicology and breath testing procedures and devices, including the Lifeloc instruments, also testified and stated that the fuel cell technology utilized by the Phoenix 6.0 would not register acetone in the breath alcohol test. Thus, there is an apparent conflict in the testimony of at least two of the witnesses regarding the accuracy of the test results from the Phoenix 6.0. Despite this apparent conflict in the testimony, the trial court concluded that it was “beyond me” “(h)ow anyone can And ... anything else.”

1 ¡After a review of the record, and the fact that the supreme court remanded the case to the Board for it to decide what weight to assign to the test results, we find that the Board did have a reasonable basis for totally discounting the Phoenix 6.0' test results: Accordingly, we find it was error for the trial court to reverse the Board’s decision that the City had not acted in good faith in terminating Mr. Dixon, and we reinstate the Board’s ruling and Mr. Dixon’s employment with the City.

Because we find merit in Mr. Dixon’s argument that the trial court erred in finding that the Board acted arbitrary and capricious, and because we are reversing the trial court’s judgment and reinstating the Board’s decision to reinstate Mr. Dixon’s employment with the City, we preter-mit discussion of Mr. Dixon’s remaining assignments of error.

DECREE

For the foregoing reasons, the March 2, 2017 trial court judgment is reversed and the Board’s decision to reinstate Mr. Dixon is affirmed.

WRIT GRANTED AND MADE PEREMPTORY.

      . Mr. Dixon was administered two breath alcohol tests, utilizing a Phoenix 6.0 device. The first test registered a positive result of .024, and the second test registered a positive result of .018.

      . In actuality, there is no issue between the parties that the initial test result was a 0.024.

      . This is a reference to the time at which Mr, . Dixon had reported to work that morning and that the test would be administered to him at . 11:22 later that morning,


author: GREMILLION, Judge.

text:
    Joseph BOXIE v. Dale ANGELLE
    16-435 consolidated with 16-436
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered 11/30/2016
    Michael Erwin Katz, Attorney at Law, 829 Baronne Street, New Orleans, LA 70113, (504) 581-1394, COUNSEL FOR DEFENDANT/APPELLEE: Dale An, gelle
    Harold Dewey Registeis Jr., Attorney at Law, 216 Rue Louis XIV; Lafayette, LA 70508, (337) 981-6644, COUNSEL FOR PLAINTIFF/APPELLANT: Joseph Box-ie ■ ,
    Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

j ]The plaintiff/appellant, Joseph Boxie, appeals the summary judgment granted in favor of defendant/appellee, Dale Angelle. For the reasons that follow, we affirm.

FACTS

Mr. Boxie alleged in his petition for damages that he entered into a lease with Mr. Angelle of three barn stalls .for the purpose of housing two horses and a pony. As. further alleged, the barn caught fire on February 7, 2014; during this fire, Mr. Boxie’s horses and pony were killed.. He also lost tack, feed, and medicine. The fire, Mr. Boxie alleged, resulted from the failure of Mr. Angelle to keep the barn in adequate repair.

Mr. Boxie’s suit against Mr. Angelle was consolidated with the suit filed by Mr. John Billiot resulting from the same.fire. These matters are also consolidated for purposes of this appeal. See Billiot v. Angelle, 16-436 (La.App. 3 Cir. 11/30/16), 209 So.3d 106, 2016 WL 6994906.

On June 15, 2015, Mr. Angelle filed a motion for summary judgment in which he asserted that the fire was caused by a heating rod that had been 'left in a bucket of oats in the “feed room.” Mr. Angelle argued that Mr. Boxie himself was in the habit of feeding his .animals oats that he cooked-in a plastic bucket by inserting a heating rod. In support of his .motion, Mr. Angelle introduced the interrogatory responses of Mr. Boxie, the fire investigation report of the Lafayette Fire Department, excerpts from the deposition of Mr. Elliot Roger of the Lafayette Fire Department, Mr. Angelle’s own affidavit, and the affidavit of Mr. Dallas Antoine, who also housed a thoroughbred horse with Mr. Angelle.

The matter was not fixed for hearing until October 19, 2015; nonetheless, Mr. Boxie did not file his opposition to the motion for summary judgment until October 13, 2015—almost four months after Mr. Angelle’s motion was filed—in contravention of La.Code Civ.P. art. 966(B)(1) and Uniform Rules—District Courts, laRule 9.9, which specifies that a party opposing a motion ,or exception must serve an opposition memorandum “so that it will be received by the other parties at least eight calendar days before the hearing, unless the court sets'a shorter time.” Mr. Angelle objected to the late filing, and Mr. Boxie’s counsel was not allowed to present oral argument. Following the hearing, the trial court granted Mr. Angelle’s motion. Mr. Boxie appeals, arguing that a genuine issue of material fact exists in the pase.

ANALYSIS

Mr. Boxie argues that the trial court ‘ erred in granting summary judgment to Mr. Angelle because:

Joseph Boxie presented evidence that Dale Angelle knew of the failing condition of the barn, yet failed to make these repairs; Joseph Boxie presented evidence of what contributed to the fire; and .[t]he fireman’s investigative report indicated that the origin of the fire was undetermined. and that there were no human factors contributing to ignition.

Before we examine each of these three arguments, we will briefly discuss the nature of summary judgment and the standards ■ employed to determine whether summary judgment is warranted; for, while those standards can now be recited by most attorneys in their sleep, there does seem to be confusion in this case about what they mean.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting . documents show that there is no genuine issue - as to material fact and that the mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(A)(2) & (3). The mover must bear his burden on the motion, but if the burden of proof at trial rests with his opponent, “the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual |3support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(D)(1). (Emphasis added).'

“A fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one on which reasonable minds could disagree. Id.

When faced with a properly-supported motion for summary judgment, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” La.Code Giv.P. art. 967(B). (Emphasis added).

Finally, summary judgments, are reviewed on appeal de novo; thus, the court of appeal applies the same criteria . as the trial court, those set forth above. Smith, 639 So.2d 730.

In support of his motion, Mr. Angelle filed Mr. Boxie’s answers to interrogatories; the Lafayette Fire Department report of Mr. Elliott Roger; excerpts from Mr. Roger’s deposition testimony; the affidavit of Mr. Angelle; the affidavit of Mr. Dallas Antoine, another man who boarded horses in the barn; and the affidavit of Mr. Chad Mouton, who also boarded horses with Mr. Angelle. Mr. Boxie opposed the motion with the complete deposition of Mr. Roger.

The report and deposition of Mr. Roger establish that he was summoned to the scene of the fire as the blaze was still being fought. He arrived and spoke to Mr. Billiot, who indicated that he had arrived at the scene and noticed smoke, which he |^initially attributed to a pile of rice, chaff ■ he had noted behind the barn. However, as he got closer, Mr. Billiot realized that the barn itself was on fire. He entered the barn and saw that the last and next-to-the-last stalls were ablaze. Mr. Billiot began opening stalls to rescue the horses, but the fire was too intense and he was forced to leave.

Mr. Roger’s report states:

In further conversation with Mr. Billi-ot, he informed me that one of the other horse owner [sic] (Mr. Joseph Boxie) had a habit of cooking oats in his feed room (which was actually a stall converted into a feed and tack room) and forgetting to unplug his heating rod before leaving the barn. Mr. Billiot stated this happened on several occasions. He was certain of this due to Mr. Boxie calling him- on several occasions asking him to unplug the heating rod for him. I asked Mr.. Billiot how he would cook oats and he stated he would place oats and water in -a plastic white five' gallon container and - insert the heating rod- into the oat and water mixture.

Mr. Roger located the feed/tack room and observed the remains of a heating rod, a white plastic bucket, and oats. The electric cord of the heating rod extended toward the location of the electrical outlets.

In his deposition, Mr. Roger stated that the feed/tack room was the area Mr. Billiot observed the fire having originated. The fire’s origin in this area coincided with Mr. Roger’s observations, too. In it, he found a white plastic bucket that was melted relatively uniformly on all sides. He found the heating rod in the búcket, and it appeared to have meltecf a hole in the bottom of the bucket. He found bloated oats, indicating that they had been cooked. '

Mr, Roger, who was tendered in his deposition. as an expert in fire cause and origins, opined that the fire started when the heating rod cooked the water out of the oats and melted through the bottom of the bucket. The rod came into contact with combustible material on the floor of the stall, which ignited the blaze. The heating rod had been subjected to extremely high heat.

On cross-examination, Mr. Roger was asked about whether he observed any electrical outlets that held water, Mr. Roger indicated that • he did not. He did not |fiopine a cause of the fire in his report, as that is not his practice; his report represents only Mr. Roger’s observations, not his-opinions. Nonetheless, Mr. Roger could not express , an opinion on the condition of the wiring of the building because the barn was so damaged.

Mr. Antoine’s affidavit indicates that he had boarded horses at a separate barn on Mr. Angelle’s property, but he used an electric walking wheel to exercise his horse on-several occasions, including the morning of the fire. This electric walking’wheel was energized from the burned barn. Mr. Antoine observed no problems with the electrical system in that barn. Everything he observed of the electrical system on the day of the fire was operating properly.

Mr. Mouton. attested in his affidavit that he had been in the barn in question on many occasions and observed no vice or defect in the electrical system of the barn. Although his own horse was destroyed in the fire, Mr. Mouton has made no claim against Mr. Angelle because he observed no vice or defect in the premises on which to base such a claim.

Mr. Angelle’s affidavit indicates that he was at the premises on the date of the fire and that he observed, no electrical issues. Just a week before the fire, Mr. Angelle had been to the barn to replace some boards in anticipation of acquiring new boarders; at that time, all electrical systems were operating normally.

Mr. Boxie maintains that he presented evidence that the barn was in failing condition and Mr. Angelle failed to make repairs. Those conditions include: boards that' heeded replacing; lights that needed replacing; ' soffits that needed replacing; boards that were treated with creosote; a breaker box that was not functioning or was “overloaded”; an outlet that had water leaking into it; and a dead horse that had been allowed to remain in the barn for four days without burial. In no way did Mr. Boxie demonstrate factual support for the proposition that any of these conditions, or a combination of them, led to the fire.

lfíThe proof of the cause of the "fire is a matter on which Mr. Boxie would bear the burden of proof at trial. Simply stating that certain conditions were present at the barn does not satisfy La.Code Civ.P. art. 966(D)(1); when a defendant such as Mr. Angelle presents evidence of the cause of a fire, and that evidence is properly supported, -it is incumbent upon the plaintiff, such as Mr, Boxie, to produce specific factual support that there exists a genuine issue of material fact. .

For example, in Nugent v. J & A Auto Supply, Inc., 11-693 (La.App. 3 Cir. 11/2/11), 76 So.3d 650, writ denied, 11-2650 (La. 2/10/12), 80 So.3d 481, we held that the plaintiff did produce facts sufficient to demonstrate a genuine issue' of material fact regarding the' cause of an electrical fire when he produced proof that the building’s owner had installed improper-gauge wife in the building, which even the building owner testified may have caused the fire. Similarly, the evidence of dueling expert testimony raised-a genuine issue of material fact and precluded a motion for summary judgment in Shelter Ins. Co. v. Broan-Nutone, LLC, 39,625 (La.App. 2 Cir. 5/11/05), 902 So.2d 1146, writ denied, 05-1483 (La. 12/16/05), 917 So.2d 1112. Mr. Boxie has produced no evidence demonstrating that something other than the heating rod caused the fire, or that the heating rod was in Mr. Angelle’s control. Mr. Angelle has produced evidénce that the heating rod caused the fire; thus, the burden shifted to Mr. Boxie to produce evidence either that it did not or that something else did. Conjecture and conclu-sory statements are not evidence. See Scott v. City of Shreveport, 15-1438 (La. 10/9/15), 186 So.3d 1149 (Crichton, Justice, concurring).

Similarly, we find the lack of an opinion in Mr, Roger’s report to be of no moment. It is common, in the court’s experience, for experts to omit opinions in reports that they freely express in testimony. The court is precluded from engaging in credibility determinations on summary judgment; however, because we find no inconsistency between Mr. Roger’s report and his testimony, there is no genuine issue 17of material fact. See Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226.

CONCLUSION

We affirm the summary judgment granted to Mr. Dale Angelle. He demonstrated in his motion that th'e cause of the fire that engulfed his barn was a heating rod that was not in his control. Mr. Joseph Boxie failed to produce evidence demonstrating that there was another cause or that Mr. Angelle controlled the heating rod. All costs of this appeal are taxed to plaintiff/appellant, Joseph Boxie.

AFFIRMED.