text:
    STATE EX REL. Lloyd COATS v. STATE of Louisiana
    No. 2016-KH-1613
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES

PER CURIAM:

| iWrit granted in part. If it has not done so already, the district court is ordered to supply relator with a copy of any court documents which he has requested and to which he is entitled as of right, including the charging instrument. State ex rel. Simmons v. State, 93-0275 (La. 12/16/94), 647 So.2d 1094. In all other respects, the application is denied.


source: Caselaw Access Project

author: CLARK, J.,

license: Public Domain

text:
    IN RE: Ramsey T. MARCELLO
    No. 2017-OB-1436
    Supreme Court of Louisiana.
    11/17/2017
    CLARK, J., concurs in part; dissents in part and assigns reasons.
   ON APPLICATION FOR READMISSION

CLARK, J.,

concurs in part and dissents in part.

hln November of 2011, this Court informed petitioner that he would be ineligible to apply for readmission to the practice of law until he had (1) completes six-weeks of inpatient substance abuse treatment and (2) entered into a five-year JLAP contact that would include quarterly hair tests. Petitioner has admittedly failed to comply with those requirements. Further, petitioner has not presented good and sufficient reason why he should be readmitted to the practice of law. Based solely on the above, I agree with the majority that petitioner should not be readmitted at this time.

However, based on petitioner’s past conduct, I am doubtful that he should ever be readmitted. Supreme Court Rule XIX, § 24(E) provides that a lawyer may be readmitted only if he has fully complied with the terms and conditions of all prior orders. He has not. The Rule further provides that, if drug or alcohol abuse was a causative factor in the misconduct, the lawyer shall not be readmitted until he has abstained from drug or alcohol use for at least one year and is likely to continue to abstain from the use of drugs or alcohol. Again, by his own admission, he continues to use alcohol two to three times a week. The Rule also requires that the lawyer recognize the wrongfulness and seriousness of the conduct for which he was suspended. Again, petitioner has not done so—he continues to deny that he has a drug and/or alcohol abuse problem. Finally, the Rule requires that a lawyer have the requisite honesty and integrity to practice law. Petitioner, in my opinion, does not. Throughout this process, petitioner has attempted' to evade responsibility for his misconduct by lying and deceit. He has filed false pleadings in this Court, and [ 2shaved his entire body and cut his fingernails to the quick in an unsuccessful attempt to avoid being tested for cocaine use (he tested positive).

Based on the facts and circumstances of' petitioner’s misconduct, I concur with the majority in the denial of petitioner’s application for readmission. I dissent, though, from that portion of the order which states that petitioner may reapply after he has fully complied with this Court’s November 16, 2011 order,


text:
    STATE of Louisiana v. Quang T. DO
    NO. 2017-KO-0354
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 11-1463; to the Court of Appeal, Fifth Circuit, No. 16-KA-439;

11 Denied.


text:
    STATE of Louisiana v. Cornelius WILSON
    NO. 2017-KO-0392
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 10-12-0480; to the Court of Appeal, First Circuit, No. 2016 KA 0912;

11 Denied.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Surcorey D. ODUMS
    NO. 2017-KO-0296
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 316,181; to the Court of Appeal, Second Circuit, No. 50,-969-KA;

I iDenied.


text:
    John Francis WILLE v. Burl CAIN
    NO. 2016-KP-1078
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 85,225; to the Court of Appeal, Fifth Circuit, No. 16-KH-173;

11 Denied.


text:
    IN RE: APPEAL OF the DECISION OF the DISCIPLINARY BOARD NO: 17-PDB-020
    No. 2017-OB-1554
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Louisiana Attorney Disciplinary Board, No. 17-PDB-020.

11 Leave to appeal denied.


text:
    STATE EX REL. John E. SPELLMAN v. STATE of Louisiana
    NO. 2016-KH-1653
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 507-166; to the Court of Appeal, Fourth Circuit, No. 2016-K-0696

1-iDenied.


text:
    STATE EX REL. Keith STEWART v. STATE of Louisiana
    NO. 2016-KH-1531
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 80-2360; to the Court of Appeal, Fifth Circuit, No. 16-KH-364;

| denied.


text:
    STATE EX REL. Paul DION, Jr. v. STATE of Louisiana
    NO. 2016-KH-2250
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 571,510; to the Court of Appeal, First Circuit, Nos. 2016 KW 0285, 2016 KW 0794;

■ | denied.


text:
    STATE of Louisiana v. Ashley HEARD
    NO. 2017-KO-0293
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 09-13-0387; to the Court of Appeal, First Circuit, No. 2016 KA 0809

hDenied.


text:
    Jamus JACOBS v. The OATH FOR LOUISIANA, INC., et al.
    NO. 2017-C-1478
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 02-19037; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1060

| iDenied.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Martin BAACK and Brenda Baack v. Michael MCINTOSH, et al.
    NO. 2017-CC-1489
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 87,843; to the Court of Appeal, Third Circuit, No. CW 17-00501;

1 iDenied.


text:
    STATE of Louisiana v. Terrence BATISTE
    NO. 2017-KK-1461
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Magistrate Court, No. 525-624; Criminal District Court Div. A, No. 536-122; to the Court of Appeal, Fourth Circuit, No. 2017-K-0701;

| denied.


text:
    Arthur B. TREGRE, Jr. v. Greg CHAMPAGNE in His Capacity as Sheriff for St. Charles Parish, et al. Lynsey P. Watson, et al. v. Dallas J. Veillon, et al. Frank Clavelle, et al. v. St. Charles Parish Sheriff's Office, et al. Dallas J. Veillon v. Greg Champagne in His Official Capacity as Sheriff for St. Charles Parish, et al. Auto Club Family Insurance, et al. v. Greg Champagne, et al.
    NO. 2017-01463
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 77,419 C/W 78,739; 78,745; 78,753; 78,619; to the Court of Appeal, Fifth Circuit, No. 16-CA-681 C/W 16-CA-682 C/W 16-CA-683 C/W 16-CA-684 16-CA-685;

h Denied.

CLARK, J., would grant.


text:
    Thomas A. GENNUSA, III and Tag Homes, Inc. v. James S. HOTARD and Jane H. Hotard
    NO. 2017-CC-1467
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 768-182; to the Court of Appeal, Fifth Circuit, No. 17-C-359;

_JjDenied.


text:
    Doris H. USIE v. SUNSHINE HOMES INC., et al.
    NO. 2017-CC-1536
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. G, No. 082841; to the Court of Appeal, Third Circuit, No. 16-780;

h Denied.


text:
    STATE of Louisiana IN the INTEREST OF R.M.
    NO. 2017-CK-0281
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Juvenile Court Orleans Parish, No. 2015-320-02-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2G16-CA-0616

11 Granted.


text:
    STATE of Louisiana v. Luke Jarrod HUST
    NO. 2017-KO-0352
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 15F13161; to the Court of Appeal, Second Circuit, No. 51,015-KA

1, Denied.


text:
    STATE of Louisiana v. Santos GARCIA
    NO. 2017-KK-1136
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 530-657; to the Court of Appeal, Fourth Circuit, No. 2017-K-0426

11 Denied.

HUGHES, J., would grant.

CRICHTON, J., would grant! and reinstate the conviction,


text:
    STATE EX REL. John Shane NICOSIA v. STATE of Louisiana
    NO. 2016-KH-1735
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 307-171; to the Court of Appeal, Third Circuit, No. KH 16-00553;

| denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Nicosia v. State, 16-1563 (La. 11/20/17).


text:
    STATE of Louisiana v. John CHAMBERS
    NO. 2017-K-0467
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 517-259; to the Court of Appeal, Fourth Circuit, No. 2016-KA-0712

hDenied.


text:
    STATE of Louisiana v. Ali BATISTE
    NO. 2017-KO-0300
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Pariah of St. John, 40th Judicial District Court Div. A, No. 13,231; to the Court of Appeal, Fifth Circuit, No. 16-KA-321

| denied.

HUGHES, J., would grant.


text:
    Jimmy WILLIAMS, Sr., et al. v. PLACID OIL COMPANY, et al.
    NO. 2017-C-1501
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Natchitoches;- 10th Judicial District Court Div. B, No. 76,787; to the Court of Appeal, Third Circuit, No. 16-839;

Denied.


text:
    Donald W. ABSHIRE and the Other Petitioners Named Herein v. The STATE of Louisiana, THROUGH the DEPARTMENT OF INSURANCE and the State of Louisiana, The State of Louisiana, Through the Office of Financial Institutions of the State of Louisiana, The Louisiana Insurance Guaranty Association and Standard Analytical Service, Inc. Arthur A. Lewis, et al. v. State of Louisiana, Through the Department of Insurance, et al.
    NO. 2017-CC-1587
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Palish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 377713 C/W 412265; to the Court of Appeal, First Circuit, No. 2017 CW 0583

|, Denied.


text:
    AVOYELLES VENTURES, INC. v. Cynthia E. MARLER
    NO. 2017-CC-1541
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Catahoula, 7th Judicial District Court Div. B, No. 28,607; to the Court of Appeal, Third Circuit, No. CW 17-00611

JjDenied.


text:
    STATE of Louisiana v. Brian SMITH
    NO. 2017-KK-1738
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 2012-CR-313; to the Court of Appeal, Fifth Circuit, No. 17-K-439;

|! Denied.


text:
    STATE of Louisiana v. Adam KELLUM
    NO. 2017-KK-1896
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 531-268; to the Court of Appeal, Fourth Circuit, No. 2017-K-0912;

| denied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-1589
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div., No. 33,796; to the Court of Appeal, First Circuit, No. 2017 CW 0559;

| denied.


text:
    Shamekia and Ceon SAUCEBERRY, Individually and on behalf of their Minor Children, Ceon Sauceberry Jr., Tre’veon Sauceberry and Jorune’ Sadceberry v. Craig WEBRE, in his official capacity as Sheriff of the Parish of Lafourche, The Lafourche Parish Sheriff's Office, Deputy Danny Toups, ABC Insurance Company and XYZ Insurance Company
    NO. 2017-C-1524
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 118259; to the Court of Appeal, First Circuit, No. 2016 CA 0719;

Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Vincent MOLINO
    NO. 2017-KK-1512
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 561670; to the Court of Appeal, First Circuit, No. 2017 KW 0550;

^Denied.

GENOVESE, J., would grant.


text:
    LEISURE RECREATION & ENTERTAINMENT, INC. v. FIRST GUARANTY BANK
    NO. 2017-C-1567
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 625,171; to the Court of Appeal, First Circuit, No. 2016 CA 0978 & 2016 CW 0281

I iDenied.


text:
    STATE of Louisiana v. Rudolph J. ROUZAN
    NO. 2017-KK-1585
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 502-059; to the Court of Appeal, Fourth Circuit, No. 2017-K-0468

11 Denied.


text:
    STATE of Louisiana v. David BOURG
    NO. 2017-KK-1504
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Allen, 33rd Judicial District Court Div. A, No. 2014-2706; to the Court of Appeal, Third Circuit, No. 16-915

11 Denied.


text:
    Troy DUPUS and Warehouse District Neighborhood Association v. The CITY OF NEW ORLEANS THROUGH ITS ZONING BOARD OF ZONING ADJUSTMENTS
    NO. 2017-C-1502
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2016-4773; to the Court of Appeal, Fourth Circuit, No. 2017-CA-0052;

h Denied.


text:
    STATE of Louisiana v. Eddie J. TAYLOR
    NO. 2017-KK-1563
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 09-14-0703; to the Court of Appeal, First Circuit, No. 2017 KW 0795;

| ¶ Denied.


text:
    STATE EX REL. Rickey Lionel LAURANT v. STATE of Louisiana
    No. 2017-KH-0845
    Supreme Court of Louisiana.
    November 17, 2017
   Applying for Reconsideration of this Court’s action dated September 6, 2017; Parish of St Tammany, 22nd Judicial District Court Div. H, No, 517140; to the Court of Appeal, First Circuit No. 2016-KW-1649;

11 Reconsideration denied.


text:
    Harold Joe BLACK v. Judge Craig O. MARCOTTE, Former Judges Charles Rex Scott & Sheriff Donald Hathaway, Clerk Gary Loftin, Asst. District Attorney Donna Hall, Asst. District Attorney Brian H. Barber, Agent Rick Faaris & April Wright, Atty. Alan Harris, Atty. J. Keene, Atty. William D. Hall
    NO. 2017-OC-0938
    Supreme Court of Louisiana.
    November 17, 2017
   Applying for Reconsideration of this Court’s action dated September 29,2017; Parish of Caddo, 1st Judicial District Court Div. C, No. 574,799; to the Court of Appeal, Second Circuit, No. 51078-CW;

| Reconsideration denied.


text:
    SUCCESSION OF Eddie Lee MOORE a/k/a Phil Moore
    NO. 2017-CC-1694
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. F, No. 4274; to the Court of Appeal, Second Circuit, No. 51,-802-CW

| ¶ Denied.


text:
    Darken THOMAS v. WAUSAU UNDERWRITERS INSURANCE COMPANY, BLD Service, Inc., David Garcia
    NO. 2017-CC-1689
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 65,435; to the Court of Appeal, Fifth Circuit, No. 17-C-434;

h Denied.

HUGHES, J., would grant.

GENOVESE, J., would grant in part.


text:
    Gary JUENGAIN v. Harry TERVALON, et al.
    NO. 2017-CP-1648
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2008-08854; to the Court of Appeal, Fourth Circuit, No. 2017-CA-0155;

| j Denied.


text:
    Ross Manale MCCANN v. Walter Lester MCCANN
    NO. 2017-C-1691
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 618,400; to the Court of Appeal, First Circuit, No. 2016 CA 0069;

_JjDenied.


text:
    STATE EX REL. Lawrence WILLIAMS v. STATE of Louisiana
    No. 2016-KH-1008
    Supreme Court of Louisiana.
    November 28, 2017
   Applying for Reconsideration of this Court’s action dated September 22, 2017; Parish of Orleans, Criminal District Court Div. E, No. 480-254; to the Court of Appeal, Fourth Circuit, No. 2016-K-0335;

hNot considered. See La.S.Ct. Rule IX, § 6.


text:
    STATE EX REL. Dax STRATTMAN v. STATE of Louisiana
    NO. 2016-KH-1749
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 15-2505; to the Court of Appeal, Fifth Circuit, No. 16-KH-413;

| denied. La.C.Cr.P. art, 881; La. C.Cr.P. art. 881.2; see also R.S. 15:1171, et seq.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Widner DEGRUY
    NO. 2017-KK-1684
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 526-458; to the Court of Appeal, Fourth Circuit, No. 2017-K-0699

^JjDenied.


text:
    FIRST AMERICAN TITLE INSURANCE COMPANY and First American Title Insurance Company of Louisiana v. Calvin V. HOWELL, Brenda Howell, Murray H. Gibson, Anita S. Gibson, Continental Casualty Company, ABC Insurance Company, XYZ Insurance Company, Cashe Coudrain & Sandage, LLP, Andre G. Coudrain, and Ashley E. Sandage
    NO. 2017-C-1669
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2014-002136; to the Court of Appeal, First Circuit, No. 2016 CA1293;

hNot considered. Not timely filed. See La.S.Ct. Rule X, § 6.


text:
    STATE of Louisiana v. Travis R. GOODIE
    NO. 2017-KK-1633
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. MD-161519; to the Court of Appeal, Third Circuit, No. 17-693;

11 Denied.


text:
    STATE of Louisiana v. Sean A. BIERS
    NO. 2017-KO-0592
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 15-5660; to the Court of Appeal, Fifth Circuit, No. 16-KA-627;

11 Denied.


author: CONERY, Judge.

text:
    Anthony CHENEVERT and Cindy Langwell v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    17-561
    Court of Appeal of Louisiana, Third Circuit.
    10/11/2017

      L. Lyle Parker, Christina S. Slay, P.O. Box. 11590, Alexandria, Louisiana 71315-1590, (318) 445-8236, COUNSEL FOR DEFENDANT/APPLICANT: Allstate Property and Casualty Insurance Company
    Cory P. Roy, Brandon J. Scott, Benjamin D. James, Renee Y. Roy, 107 North Washington Street, Marksville, Louisiana 71351, (318) 240-7800, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Anthony Chenevert and Cindy Langwell
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

|, Defendant-Relator, Allstate Property and Casualty Insurance Company (Allstate), seeks supervisory writs from the judgment of the Twelfth Judicial District Court, Parish of Avoyelles, the Honorable Kerry Spruill presiding, which denied Allstate’s motion for summary judgment on the issue of insurance coverage. For the following reasons, Allstate’s writ is granted and made peremptory. All claims made against Allstate by Plaintiffs/Respondents, Anthony Chenevert and Cindy Langwell are dismissed with prejudice. All costs are assessed to Plaintiffs/Respondents, Anthony Chenevert and Cindy Langwell.

STATEMENT OF THE CASE

This suit arises out of an automobile accident that occurred on October 15, 2015, involving plaintiffs, Anthony Chenevert and Cindy Langwell, and a vehicle driven by Rodney Lee Johnson, Jr., but owned by Katelin Firmin, Plaintiffs/Respondents, Anthony Chenevert and Cindy Langwell filed suit against Allstate, alleging it provided coverage to Mr. Johnson under its policy issued to Ms. Firmin. In November 2016, Allstate filed its motion for summary judgment, asserting that coverage was not in place for Ms. Firmin or Mr. Johnson on the date of the accident because the policy previously issued to Ms. Firmin had been cancelled due to non-payment of her insurance premium on September 15, 2015.

Notice Of Non-Payment of Insurance Premium

The facts are undisputed that on August 15, 2015, Ms. Firmin forwarded a payment to Allstate for a premium due on the subject policy. The automatic payment form Ms. Firmin’s account was not honored due to insufficient funds on | ¡August 20, 2015, and Allstate forwarded a notice of cancellation to the insured on August 26, 2015. The notice provided:

Auto policy cancellation notice for non-payment of premium
If you want your insurance coverage to continue and do not want it to cancel, please make sure we receive the minimum amount due by the end of the day (midnight) on September 14, 2015 or your policy will cancel at 12:01 a.m. Standard Time on September 15, 2015.
For your convenience, you can make a payment by Check-By-Phone or Credit/Debit Card 2í hours a day, 7 days: a week ... or visit My Account at www. allstate.com.
The Minimum Amount due includes a Past Due Amount of $404.85. As a result of being unable to collect your premium from your account, you have been removed from the automatic payment plan. You must remit payment so that it is received on or before the Cancel Date indicated on this notice or your policy will be cancelled.
A $15.00 fee has been applied as a result of the unsuccessful bank transaction.

Despite the notice of payment due from Allstate, the extra time given for payment and the multiple ways that payment could be made to insure that the policy remained in force and effect, Ms. Firmin did not make the required payment of her insurance premium, which would have reinstated her policy, until October 16, 2015, the day after the accident.

Plaintiffs/Respondents opposed Allstate’s motion for summary judgment, ■ arguing issues of material fact existed as to whether the cancellation letter met the strict requirements of La.R.S. 22:1266(D), namely (1) whether notice was sent “immediately” after the receipt of the returned check, and (2) whether the notice advised Ms. Firmin, as per the statutory language in La.R.S. 22:1266 (D)(3)(b)(ii), “that the policy shall be reinstated effective from the date the premium payment was due for the term of the policy only if the named insured or his legal representative presents to the insurer a cashier’s check or money order for the full |samount of the returned check or other negotiable instrument within ten days of the date that the notice of cancellation was mailed.”

After hearing oral argument of counsel, the trial court denied Allstate’s motion for summary for the following reasons stated on the record:

As you all know we’re at summary judgment stage, we’re at preliminary stages in these proceedings. And I do believe that the statute has to be strictiy construed under the circumstances and I do not find that as a matter of law though it is a very technical defense, that there was an effective cancellation consistent with the provisions contained in Louisiana Revised Statute 22:1266, this particular, part of the statute that says that the insurer shall advise the named insured that the policy shall be reinstated effective from the date that the premium payment was due for the term of the policy only if the named insured dr it’s legal representative presents to the insured a cashier’s check or money order for the full amount of the returned check or other negotiable1 instrument within ten days of the notice of cancellation was mailed. I think there are certain strict requirements that have been placed on the insurance company and have to be met in order to provide with what’s called an effective -cancellation of the policy.
It is not an effective cancellation and accordingly, the Motion for Summary Judgment falling short of the legal requirements of statute, summary judgment is .denied under. these circumstances. And this is a fact limited case, the decision is fact limited to this situation on this particular statute.

SUPERVISORY RELIEF

A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and.may do so at any time, according to the discretion of the court. When the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of, the .application for supervisory writs should be decided in an atterppt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam). This supervisory jurisdiction may also be exercised to reverse a trial court’s denial of a motion for summary judgment and to enter summary judgment in. favor of the Lmover. Csaszar v. Nat’l Cas. Co., 14-1273 (La.App. 3 Cir. 11/4/15), 177 So.3d 807.

ON THE MERITS

Standard of Review

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

An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Halphen v. Borja, 06-1465, (La.App. 1 Cir. 5/4/07), 961 So.2d 1201, unit denied, 07-1198 (La. 9/21/07), 964 So.2d 338. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved on summary judgment. Green v. State Farm Mut. Auto. Ins. Co., 07-94, (La.App. 1 Cir. 11/2/07), 978 So.2d 912, writ denied, 08-74 (La. 3/7/08), 977 So.2d 917. However,.summary judgment declaring a lack of coverage under an insurance policy, may only be rendered if there is no reasonable interpretation of the policy when applied' to the undisputed material facts shown by. the evidence. ■ supporting the motion under which coverage could be afforded. Id.

Statutory Interpretation

The issue before us is strictly one of státutory interpretation. Does the notice sent to the insured have to meet the exact wording of the statute to be [^effective? We must decide whether the statutory notice requirements must be complied with verbatim to effect a valid cancellation pursuant to La.R.S., 22:1266, or whether, the notice in this case is sufficient. Neither party disputes that the notice sent by Allstate comports with the “spirit” of the, law. Plaintiffs even concede their argument is “absolutely a technical argument.”

■Undeniably, the notice sent by Allstate to Ms, Firmin provides more time for payment, more continued coverage, and more convenient, and modern methods for payment than statutorily required, but it does not contain the exact wording set forth in the statute. Therefore, we are called upon to determine what level of compliance is required in the application of the statutorily mandated cancellation notice.

'Jurisprudence has long held that the rules of statutory construction require our courts to determine the intent and purpose of the legislature in enacting the law and to give effect, if possible, to that intent and purpose. The supreme court has long cautioned that “[c]ourts will not apply the rule of strict construction with such technicality as to defeat the purpose of ascertaining the true meaning and intent of the statute.” McElveen v. Goings, 116 La. 977, 41 So. 229 (1906).

The Louisiana Civil Code commands the courts to apply the letter of the law unless the words or expressions are unclear, or its application leads to absurd results, in which case only then may the courts look to the context of the words, other statutes, and the spirit of the law. La.Civ.Code arts. 9, 10, 11, 12, and 13. Therefore, while it is the court’s province to “consider the reason and spirit of a law that brought about its enactment, Keelen v. State Dept. of Culture, Recreation, and Tourism, 463 So.2d 1287 (La.1985), it is not free to rewrite the law to effect a | ^purpose that is not otherwise expressed.” Backhus v. Transit Cas. Co., 549 So.2d 283, 291 (La.1989).

Pursuant to this rule, it is the duty of the court to apply the statute as written unless a literal application would lead to an absurd result, at which point the letter of the law must give way to the , spirit so as to produce a reasonable result. Smith v. State, Through Dep't of Pub. Safety, 366 So.2d 1318 (La.1978); Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (La.1955).

Applicable Statutes

Louisiana Revised Statute 22;1266(B)(1) provides the applicable statutory law on the issue of cancellation of an automobile liability insurance policy and provides, in pertinent part, “A notice of cancellation of a policy shall be effective only if it is based on one or.more of the following reasons:

(a) Nonpayment of premium.”

The pertinent parts of La. R.S. 22:1266(D) state the requirements for an effective notice of cancellation of an insurance policy for nonpayment of a policy premium at issue in this case:

(3)(a)(i) Payment of an initial, renewal, or installment insurance premium by the insured to an insurer or a producer with a check or other negotiable instrument which is returned to the payee by the institution upon which it is, drawn for insufficient funds available in the account,, for lack of credit, for the reason the account is closed, for stopped payment, or for any other reason shall be deemed grounds for the insurer to cancel the binder or policy from the date the premium payment was due for the initial or. renewal term, whichever is applicable.
(ii) The proyisions of this. Paragraph shall apply to automobile liability policies and to property, casualty, and liability policies.
(b)(i) The producer shall. immediately, and in no case later than ten days after the producer or premium finance company has received notice of the returned check or negotiable instrument, notify the insurer of the receipt of the returned check or negotiable instrument.
17(ii) The insurer, shall immediately, and in no case later than ten days after the producer or premium finance company has notified the insurer, notify, the named insured, by certified mail or delivering-to the named insured a written notice that the policy is canceled from the date the premium payment was due.
'The insurer shall advise the named insured that the policy shall be reinstated effective from the date the premium payment was due for the term of the policy only if the named insured or his legal representative presents to the insurer a cashier’s check or money order for the full amount of. the returned check or other negotiable instrument within ten days of the date that the notice of cancellation was mailed.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.

These requirements are “mandatory and are designed to notify the insured his policy is being terminated, to provide the reason for the termination and to afford him ample time to obtain other insurance protection.” Lemons v. Safeway Ins. Co. of La., 02-687 (La.App. 3 Cir. 12/27/02), 835 So.2d 908, writ denied, 03-0285 (La. 4/4/03), 840 So.2d 1217 (interpreting La. R.S. 22:636.1 renumbered La.R.S. 22:1266 by 2008 La. Acts No. 415, § 1).

Although conceding its cancellation letter did not contain the exact statutory language, Allstate argues the trial court erred in denying its summary judgment motion because the cancellation notice did in fact comply with all the statutory requirements: (1) the notice was forwarded on August 26, 2015, at least ten days prior to the date the cancellation would become effective, September 15, 2015; (2) the notice was forwarded with proof of mailing to the named insured at the address shown in the policy; (3) the notice advised 'the insured, Ms. Firmin, that her insurance coverage would not be canceled effective August 15, 2015, the date of the premium for which payment was returned, but instead that the cancellation of her policy would be effective at 12:01a.m. Standard Time on September 15, 2015. Therefore, Allstate’s cancellation notice, in effect gave its insured, Ms. Firmin, and 18the driver of her vehicle, defendant, Mr. Johnson, continued coverage for a full month past the August 15, 2015 date her policy premium was due; (4) the notice contained a transaction history outlining the return of her policy premium payment on August 20, 2015, due to the insufficiency of funds, and an explanation of the minimum amount due; and (5) the notice explained the methods available for making said payment, which methods, i.e., credit/debit card or checking account payments by phone or website, which are more generous than the statutory methods of cashier’s check, money order, or “other negotiable instrument.”

While strict construction is required in the application of La.R.S. 22:1266, there is no requirement that the cancellation notice quote the exact language from the statute. The information contained in the notice sent by Allstate to Ms. Firmin was more than sufficient to advise her of the steps she needed to take to maintain her automobile insurance coverage, and fully complied with the intent and provisions of the statute. The-language of the notice clearly stated that failure to pay her automobile insurance premium by one of the several options listed in the notice would result in the cancellation of her automobile insurance coverage at 12:01 a.m. on September 15, 2015.

In compliance with La.R.S.22:1266 (D)(3)(b)(ii), the notice sent to Ms. Firmin specifically stated, “If you want your coverage to continue and do not want it to cancel, please make sure that we receive the minimum amount due by the end of the day (midnight) on September 14, 2015 or your policy will cancel at 12:01 a.m. Standard Time on September 15, 2015.”

It is undisputed that Ms. Firmin did not pay her automobile insurance premium by midnight on September 14, 2015, but instead paid her premium more than one month later on October 16, 2015, the day after the, accident. This, |9despite a complete explanation of the methods available for payment of the minimum amount due, and the date the notice of cancellation of the policy was effective.

In opposition, plaintiffs argue that there is a genuine issue of material fact as to whether the notice of cancellation was sent “immediately,” given that the check was returned on August 20, 2015, but Allstate did not forward the notice of cancellation until August 26, 2015. However, we find there is no genuine issue of material fact on the timeliness of Allstate’s notice, given the notice was actually sent within the 10-day timeframe allowed by the statute. Therefore, this argument by the plaintiffs is without merit.

Plaintiffs further point out that the notice does not contain the necessary notification regarding reinstatement, of the insurance policy upon payment by cashier’s check, money order or “other negotiable instrument.” Therefore, plaintiffs claim the notice was ineffective, and the policy at issue remained in effect on the date of the accident.

The statute at issue requires the insured be given an opportunity to reinstate the policy, within 10 days of the mailing of the notice, by paying the amount of the returned check by either cashier’s check, money order, or “other negotiable instrument within ten days of the date that the notice of cancellation was made.” In this instance, Allstate has actually given more options to its insured than statutorily required. The notice sent to Ms. Firmin did not state an intention to cancel her policy effective on August 15, 2015, the due date of the premium payment, and for which the payment was returned due to insufficient funds. In fact, the notice stated her insurance coverage would continue in force and effect Imuntil 12:01 a.m. Standard Time on September 15, 2015 if payment of the premium was made on or before midnight on September 14, 2015.

Accordingly, there would have been no reason for the notice sent by Allstate to Ms. Firmin to state that the policy “shall be reinstated effective from the date the premium payment was due for the term of the policy only if the named insured or his legal representative presents to the insurer a cashier’s check or money order for the full amount of the returned check or other negotiable instrument within ten days of the date that the notice of cancellation was mailed.” La.R.S. 1266 D(3)(a)(ii) The insurance policy issued to Ms. Firmin by Allstate was still in full force and effect until September 15, 2015 at 12:01 a.m. Standard Time.-

It is undisputed that Ms. Firmin chose , not to take advantage of any of the many different opportunities presented by Allstate for payment of her insurance premium. Therefore, we find that Allstate’s cancellation notice more than fully complied with the legislative provisions and the intent of the statute. Smith, 366 So.2d 1318 (La.1978). We find than an insured cannot simply ignore a valid notice of, cancellation with provisipns for re-instatement more favorable than the statute- actually requires, wait more than thirty days after the effective date of cancellation, and then try to send in a policy payment.the day after a non-covered accident, occurs. - Such a statutory construction would produce an absurd result. Accordingly, the plaintiffs’ second argument in opposition to Allstate’s motion for .summary judgment is also without merit.

CONCLUSION

Por the foregoing reasons, we reverse the trial court’s denial of the motion- for summary judgment and enter summary judgment in favor of Allstate Property and-Casualty Insurance Company, The plaintiffs, Anthony Chenevert and Cindy InLangwell’s claims against Allstate Property and Casualty Insurance' Company are dismissed with prejudice. All costs of'this proceeding aré assigned to the plaintiffs, Anthony Chenevert and Cindy Langwell.

WRIT GRANTED AND MADE PER, EMPTORY.

      . In reviewing the cancellation notice, it appears payment was attempted by automatic electronic withdrawal from Ms. Firmin’s checking account, and not an actual written check payment.


author: CONERY, Judge,

text:
    Jennifer WILLIAMS v. LOUIE STREET APARTMENTS, INC.
    17-0241
    Court of Appeal of Louisiana, Third Circuit.
    10/11/2017

      Joshua K. Trahan, Sarah E. Stevens, JUNEALT. DAVID, APLC, The Harding Center, 1018 Harding ■ Street, Suite 202, Lafayette, Louisiana 70503, Telephone: (337)269-0052, Facsimile: (337)269-0061, COUNSEL FOR DEFENDANT/APPLICANT:. Louie Street Apartments, Inc.
    ' Jere-Jay Bice, Julis Love Taylor, Veron, Bice, Palermo & Wilson, L.L.C., 721 Kirby Street, P.O. Box 2125, Lake Charles, Louisiana 70602, Telephone: (337) 310-1600, Facsimile: (337) 3Í0-1601, COUNSEL' FOR PLAINTIFF/RESPONDENT: Jennifer Williams "
    Court composed of John E; Conery, D. Kent Savoie, and Van H.- Kyzar,- Judges.
   CONERY, Judge,

hThe Defendant-Relator, Louie Street Apartments, Inc. (hereinafter sometimes referred to as the Corporation), seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the Honorable Sharon Dar-ville Wilson presiding, which denied the Corporation’s motion for, summary judgment. -For the following reasons, the Cor-r poration’s writ is granted and made peremptory. All claims made against the Corporation by Plaintiff/Respondent Jennifer Williams are dismissed with prejudice. All costs are assessed to Plaintiff/Respondent J ennifer Williams.

STATEMENT OF THE CASE

Plaintiff/Respondent, Jennifer Williams, was injured when a picnic table bench seat collapsed, causing her to fall to the ground. The bench was located on the grounds of a housing project called the Louie Street Apartments. The Corporation owns the property on which the bench was located. However, the apartments and grounds are managed and maintained by the Calcasieu Association for Retarded Citizens (CARC), for whom Ms. Williams was working at the time of the accident.

Ms. Williams filed suit against the Corporation based on its ownership of the property on which the bench was located. The Corporation filed the subject motion for summary judgment contending that Ms. Williams could not recover against it. The Corporation claims that, although it owns the property, it did not own the bench. The Corporation notes that CARC manages the property and maintains it. The Corporation also pointed put that CARC purchased the bench Rand assembled it. Therefore, the Corporation claimed that it could not be held accountable for Ms. Williams’s injuries.

A hearing on the motion for summary judgment was held by the trial court on February 6, 2017. At the conclusion of the hearing, the trial court denied the motion. The court minutes state that the trial court would sign a written judgment upon presentation, although the transcript does not contain this ’ statement. The Corporation filed a Notice'of Intention to Apply for Supervisory Writs and Request to Set a Reasonable Return Date on February 15, 2017. Also, on this same date, the Corpora-* tion filed a request for written reasons for judgment to be issued

Not having received a signed order setting the return date, among other things, the Corporation filed a motion for an extension of the return date on March 1, 2017.

When neither an order setting the original return date nor an order setting the extension of the return date was received by the Corporation, the Corporation sent to this court its Motion to Extend Return Date to File an Application for Supervisory Writ, docketed by this court as CM 17-240, and its Application for Supervisory Writ, docketed by this court as CW 17-241. Although the date stamp from this court’s clerk’s office indicates that these items were filed on March 9, 2017, in actuality, the items were received by this court bearing a postmark date of March 8, 2017. A letter from this court’s clerk’s office notifying the parties and the trial court of the writ application’s filing states that the writ “has been received and filed, as of the postmark date of March 8, 2017.”

Since these initial filings, several supplemental filings have been made by the Corporation, including the transcript of the February 6, 2017 hearing; the |swritten reasons signed by the trial court on March 10, 2017, in which the trial court denies the, motion for summary judgment; an order signed by the trial court on February 27, 2017, which set the original return date for the filing of the writ application for March 6, 2017; and an order signed by the trial court on March 10, 2017, extending the return date for the filing of the writ application to April 6, 2017.

CM 17-240 MOTION TO EXTEND RETURN DATE TO FILE AN APPLICATION FOR SUPERVISORY WRIT

This court denies the motion for extension of return date as moot. A review of the pleadings filed by the Corporation in the trial court clearly reflects the Corporation’s good .faith attempts to obtain .the timely setting of a return date for the filing of a writ application. The original request was filed with the trial court within a few days of the hearing held February 6, 2017, and the request for the setting of the return date was filed February 15, 2017. When the Corporation had not received an order setting the return date by the end of February, the Corporation filed a request for an extension of the return date on March 1, 2017, which was also within thirty days of the hearing on the motion for summary judgment and was filed prior to the expiration of the return date initially set by the trial court.

Ultimately, the trial court signed an order setting the initial return date for March 6, 2017. By that time, the Corporation had already filed its motion for an extension of the return date with the trial court. When the extension:was signed, the trial court had extended the return date to April 6, 2017. By that date, the Corporation had filed its writ application with this court and filed its motion for an extension of the return date with this court. This court finds that the .writ ^application was timely filed and denies the motion for extension of the return date as moot.

On May 9, 2017, this court issued an Order in Docket Number 17-0241, stating:

WRIT GRANTED. Defendant-Realtor, Louie Street Apartments, Inc., is hereby given until May 23, 2017, to file any additional brief, if desired. Plaintiff-Respondent, Jennifer Williams is hereby given until May 30, 2017, to file any additional brief, if desired. If a party desires to have oral argument in this matter, the moving party may file a motion, with the appropriate filing fee, stating the reasons why oral argument is necessary in this case, by no later than May 23, 2017.

No additional briefs were filed and neither of the parties requested oral argument. We will, therefore, address the merits of the writ in this' opinion.

SUPERVISORY RELIEF
A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at' any time, according to the discretion of the court. In cases in which a peremptory exception has been overruled by the trial court, the appellate court appropriately exercises its supervisory jurisdiction when the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved. In such instances, judicial efficiency and fundamental fairness to the litigants dictate that- the merits of the application for supervisory writs should bé decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). This supervisory jurisdiction may also be exercised to reverse a trial court’s denial of a motion for summary judgment and to enter summary judgment in favor of the mover. See Hoover v. Livingston Bank, 451 So.2d 3 (La.App. 1st Cir.1984); Bonfiglio v. Bellsouth Advertising and Pub. Corp., 619 So.2d 135 (La.App. 1st Cir.), writ denied, 620 So.2d 864 (La.1993).

Charlet v. Legislature of State of La., 97-0212, pp. 6-7 (La.App. 1 Cir. 6/29/98), 713 So.2d 1199, writs denied, 98-2023, 98-2026 (La. 11/13/98), 730 So.2d 934.

In her opposition filed in this court, Ms, Williams contends that this court should decline to exercise its supervisory jurisdiction as there are' “no compelling Rwrit grant considerations.” We disagree. This court finds merit to the Corporation’s motion for summary judgment. Should Ms. Williams’ suit be dismissed, the Corporation will have avoided incurring the expenses of preparing and going through trial. Therefore, there are valid reasons for considering the merits of the Corporation’s writ application.

ON THE MERITS

Standard of Review

A trial court’s disposition of a motion for summary judgment is reviewed using the de novo standard of review “under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate.” D’Angelo v. Guarino, 10-1555, p. 3 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 686, writ denied, 12-0746 (La. 5/18/12), 89 So.3d 1196 (citing Wilson v. Calamia Constr. Co., 11-0639, p. 3 (La.App. 4 Cir. 9/28/11), 74 So.3d 1198, 1200). In determining whether summary judgment is appropriate, a court must resolve the following two issues: (i) whether there is any genuine issue of, material fact; and (ii) whether the mover is entitled to judgment as a matter of law. Warren v. Kenny, 10-1580, pp. 5-6 (La.App. 4 Cir. 4/27/11), 64 So.3d 841, 845-846 (citing Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La. 7/6/04), 880 So.2d 1, 5).

Brown v. Diagnostic Imaging Services, Inc., 15-207, p. 3 (La.App. 4 Cir. 8/12/15), 173 So.3d 1168, 1169.

Louisiana Civil, Code Articles 2317 and 2317.1 provide the law governing this case. Louisiana Civil Code Article 2317 provides, “[w]e are responsible, not only for the damage, occasioned by-our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

Louisiana Civil Code Article 23Í7.1 also provides in the case of a thing owned by or in the custody of an individual, or in this case a corporation:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the [(¡ruin, vice, or defect which caused the damage, .that .the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquiture in an appropriate case.

Thus, among ‘the- elements Ms. Williams must prove in order to recover from the Corporation is that the Corporation had custody or garde of the bench at issue in this matter. The Corporation argues that it has produced evidence to show that it did not have custody or garde of the subject bench, thereby shifting the burden to Ms. Williams to show that the Corporation did have custody or garde. The record reflects that Ms. Williams failed to introduce any evidence contrary to that submitted by the Corporation. Therefore, the Corporation contends that the trial court erred,in failing, to grant, its motion for summary judgment.

Among the items submitted by the Corporation in support of its motion for summary judgment were portions of the deposition testimony of Bennett McNeal; the assistant executive director of CARC, whose duties include “overseeing the community homes, CARC’s community services department, CARC’s vocational department, anything that provides services directly to CARC’s recipients that is not administration,” He explained the creation of the Corporation as follows:

CARC had to buy the property or have the property in hand in order to apply for the grant from HUD to build the apartments. Once th,e apartments were built, the property, the ground, was sold to Louie Street Apartments., So there had to be a separate 501 (C) (3) organization, Louie Street Apartments, Inc., separate from CARC to actually, own the complex. That is a HUD regulation, so that’s why CARC does not directly own anything—any of the real property.

Mr. MeNeal also explained that Louie Street Apartments,' Inc. is a completely separate corporation from CARC, with its own board of directors. Additionally, he explained that the Corporation has’ no employees, with CARC serving as the managing agent of the apartments. ■

17Mr. MeNeal attested that CARC purchased the bench that caused Ms. Williams’ injuries. When asked “who was solely responsible for the" maintenance and upkeep of the property at Louie Street,” he responded, “CARC.” He added that the particular bench at issue would have been assembled by CARC’s maintenance people.

Thus, as noted by the Corporation, CARC owned and assembled the bench and was solely responsible for maintaining the property and the bench. Furthermore, as noted by the Corporation, Ms. Williams failed to introduce any countervailing evidence. Instead, Ms. Williams argued that as a matter of law, since the Corporation owns the property, it must be found to be responsible for this bench. We disagree.

Ms. Williams relies heavily on Leblanc v. Trappey, 02-1103 (La.App. 3 Cir. 2/5/03), 838 So.2d 860, writs denied, 03-651, 03-684 (La. 5/2/03), 842 So,2d 1107, which notes that the owner of the property is presumed to be in the custody of and to have garde over all things on the property. We find that her argument is not persuasive in this instance because the Corporation introduced evidence supporting its claim of lack of. ownership of the bench and lack of garde. CARC was the owner and maintained the bench and the property. As pointed out by the Corporation, Ms. Williams adduced no proof that contradicts the evidence submitted by the Corporation. Since there are no material facts in dispute, we grant the motion for summary judgment.and dismiss Ms. Williams’ suit with prejudice.

CONCLUSION

. For the foregoing reasons, we reverse •the. .trial court’s denial of the motion for summary judgment and enter summary judgment in favor of the Louie Street | ¡Apartments, Inc. The plaintiff Jennifer Williams’ claims against Louie Street Apartments, Inc. are dismissed with- prejudice. All costs of this proceeding are assigned to the plaintiff, Jennifer Williams.

WRIT GRANTED AND MADE PEREMPTORY.

      . The thirtieth day from the hearing held on February 6, 2017, was March 8, 2017.