author: GUIDRY, J.

text:
    Iris Nell Spinks JOURDAN, Robin Rene Jourdan and Misty Michelle Jourdan Appe v. ALLMERICA FINANCIAL BENEFIT INSURANCE COMPANY, et al.
    NUMBER 2017 CA 1630
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 30, 2018
    Ron S. Macaluso, Hammond, LA, Counsel for Plaintiffs/Appellees Iris Nell Spinks Jourdan, Robin Rene Jourdan Smith, and Misty Michelle Jourdan Appe
    James M. Benson, Mandeville, LA, Counsel for Defendant/Appellant Federated Rural Electric Insurance Exchange
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Defendant, Federated Rural Electric Insurance Exchange (Federated), appeals from a trial court judgment granting summary judgment in favor of plaintiffs, Iris Nell Spinks Jourdan, Robin Rene Jourdan Smith, and Misty Michelle Jourdan Appe, ruling that the uninsured motorist coverage of the All Risk Blanket Policy issued by Federated provides uninsured motorist coverage to the plaintiffs. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 8, 2016, Lawrence "Cotton" Jourdan was a member of the Board of Directors of Washington St. Tammany Electric Co-Operative, Inc. (Co-Op). Following a board meeting at the Co-Op's office in Franklinton, Louisiana, the board members met for dinner at Fair City Café. Jourdan had ridden to the board meeting with another board member, Dennis Glass, so he rode with Glass to the café. Glass parked his vehicle in a parking lot across the street from the café. While walking across the street from the parking lot to the café, Jourdan was struck by a vehicle driven by Karen Spears. Jourdan sustained serious injuries as a result of the accident, and he later died as a result of his injuries.

Thereafter, on December 8, 2016, plaintiffs, Jourdan's surviving spouse and adult children, filed a petition for damages, naming Spears, her insurer, Allmerica Financial Benefit Insurance Company, and Federated, the insurer of the Co-Op, as defendants. Particularly, with regard to Federated, plaintiffs alleged that Federated had issued an All Risk Blanket Policy (All Risk policy) to the Co-Op, which named Directors of the Co-Op as insureds under the policy. As such, plaintiffs asserted that the All Risk policy included uninsured/underinsured motorist (UM) benefits, which provide coverage to Jourdan and the plaintiffs because Jourdan was in the course and scope of his duties and responsibilities as a member of the Board of Directors of the Co-Op at the time of the accident.

On June 2, 2017, plaintiffs filed a motion for summary judgment, seeking a declaration from the trial court that the Federated policy provides UM coverage to the plaintiffs for the accident at issue. Federated also filed a motion for summary judgment as to coverage, seeking dismissal of plaintiffs' claims against it because there is no coverage afforded to Jourdan and/or the plaintiffs for the accident in question under the All Risk policy issued to the Co-Op.

Following a hearing on the parties' motions, the trial court signed a judgment denying Federated's motion for summary judgment and granting plaintiffs' motion, ordering that the UM coverage of the All Risk policy issued by Federated to the Co-Op provides coverage to the plaintiffs. The trial court designated the judgment as final in accordance with La. C.C.P. art. 968. Federated now appeals from the trial court's judgment.

DISCUSSION

Jurisdiction

The trial court's judgment, granting summary judgment in favor of the plaintiffs on the issue of UM coverage, is a partial judgment. See La. C.C.P. art. 966(E). A partial summary judgment rendered pursuant to Article 966(E) may be immediately appealed during ongoing litigation only if it has been properly designated as a final judgment by the trial court. La. C.C.P. art. 1915(B). Article 1915(B) authorizes the appeal of a partial summary judgment as to "one or more but less than all of the claims, demands, issues, or theories" presented where the judgment is designated as a final judgment by the trial court after a determination that there is no just reason for delay.

In the instant case, the trial court designated the judgment as a final judgment, but it did not designate that there was no just reason for delay. Accordingly, we are required to conduct a de novo review of the propriety of the trial court's designation. See Motorola v. Associated Indemnity Corporation, 02-1351, p. 16 (La. App. 1st Cir. 10/22/03), 867 So.2d 723, 732 ; see also Parker v. Zurich American Insurance Company, 16-0442, p. 12 (La. App. 1st Cir. 12/22/16), --- So.2d ---- (unpublished opinion). After consideration of the relevant factors for such review in the context of the coverage dispute, we find that the trial court's designation was indeed appropriate, and we therefore have jurisdiction over this appeal. See Machen v. Bivens, 04-0396, p. 3 (La. App. 1st Cir. 2/11/05), 906 So.2d 468, 471.

Standard of Review

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199. A motion for summary judgment is properly 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).

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. Green v. Johnson, 16-1525, p. 4 (La. App. 1st Cir. 1/10/18), 241 So.3d 1188, 1191.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Green v. State Farm Mutual Automobile Insurance Company, 07-0094, p. 3 (La. App. 1st Cir. 11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La. 3/7/08), 977 So.2d 917.

UM Coverage

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the parties as reflected by the words in the policy. La. C.C. art. 2045 ; Peterson v. Schimek, 98-1712, p. 4 (La. 3/2/99), 729 So.2d 1024, 1029. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and the agreement must be enforced as written. La. C.C. art. 2046 ; Fouquet v. Daiquiries & Creams of Mandeville, L.L.C., 10-0233, p. 4 (La. App. 1st Cir. 9/13/10), 49 So.3d 44, 47.

Uninsured motorist coverage embodies a strong public policy, which is to provide full recovery for innocent automobile accident victims who suffer damages caused by a tortfeasor who has no coverage or is not adequately covered by liability insurance. Cutsinger v. Redfern, 08-2607, p. 5 (La. 5/22/09), 12 So.3d 945, 949. The underlying purpose of uninsured motorist coverage is "to promote and effectuate complete reparation, no more or no less." Cutsinger, 08-2607 at p. 5, 12 So.3d at 949 (quoting Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La. 1982) ).

The UM endorsement to the All Risk Policy issued to the Co-Op provides, in pertinent part:

A. Coverage
1. We will pay all sums the "Insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle". The damages must result from "bodily injury" sustained by the "Insured" caused by an "accident". The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the "uninsured motor vehicle".
* * *
B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
1. An individual, then the following are "Insureds":
a. The Named and any "family members".
b. Anyone else "occupying" with the Named Insured's express or implied permission a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.
c. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".
d. Anyone else "occupying" an "auto" the Named Insured does not own who is an "Insured" for Covered Autos Liability under the Coverage Form, but only at times when that person is an "insured" for Covered Autos Liability under the Coverage Form.
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "Insureds":
a. Anyone "occupying" with the Named Insured's express or implied permission a covered "auto" or a temporary or substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.
b. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "Insured".
c. Anyone else "occupying" an "auto" the Named Insured does not own who is an "Insured" for Covered Autos Liability under the Coverage Form, but only at the times when that person is an "Insured" for Covered Autos Liability under the Coverage Form.
F. Additional Definitions
As used in this endorsement:
* * *
2. "Occupying" means in, upon, getting in, on, out or off.

The named insured on the declarations page of the All Risk Policy is "Washington-St. Tammany." Therefore, the applicable definition of named insured for purposes of the UM endorsement is found in subparagraph 2. According to the plain language of the endorsement, in order to be an insured under the UM portion of the All Risk Policy, Jourdan had to be "occupying" an auto. It is undisputed that at the time of the accident at issue, Jourdan was not "occupying" an auto. Therefore, according to the plain language of the UM endorsement, Jourdan is not entitled to contractual UM coverage under the UM Endorsement of the Federated Policy.

However, the Louisiana Supreme Court has found that plaintiffs are entitled to UM coverage under the policy if they are insured under the auto liability coverage. See Bernard, 11-2377 at p. 6, 111 So.3d at 1000 ; see also Howell v. Balboa Insurance Company, 564 So.2d 298, 301-02 (La. 1990) ; Hobbs v. Rhodes, 95-1937, pp. 5-7 (La. App. 4th Cir. 11/30/95), 667 So.2d 1112, 1115-1116, writ denied, 96-0733 (La. 5/3/96), 672 So.2d 691.

The Automobile and General Liability Insurance portion of the policy provides, in pertinent part:

F. Persons Insured
Each of the following is an insured under this insurance to the extent set forth below:
1. the organization listed in the Declarations and any executive officer, director, trustee, employee or volunteer of the policyholder while acting within the scope of their duties as such;

There is no dispute that Jourdan was a director of the Co-Op, the policyholder listed on the declarations page, at the time of the accident. Plaintiffs submitted the deposition testimony of Sherri Goss, administrative assistant to the general manager of the Co-Op for twenty years, who stated that the board of directors for the Co-Op normally has a meal after the board meetings that is paid for by the Co-Op. Goss further stated that she completed a Metropolitan Life Insurance Company Statement of Claim for Business Travel Accident Benefits (MetLife) form, wherein she answered "yes" to whether the covered person suffered a loss as the result of an accident that occurred while he was traveling on company business. Goss further indicated that the loss was "Death" and noted that the nature of the company business was "Attend Regular Monthly Meeting of Board of Directors and meal following." Goss stated that no one ever told her that her response was incorrect.

Plaintiffs also submitted the deposition of Charles Hill, general manager of the Co-Op, who stated that the directors, general manager, and attorney for the Co-Op go to dinner after the board meetings. Hill stated that the dinners were a moment of fellowship after the board meetings, and no one was required to go to the dinners. According to Hill, the dinners were a "thank you" for the directors. However, Hill stated that he approved payment of the dinners as a legitimate business expense of the Co-Op. According to Hill, he would not have approved payment by the Co-Op of the dinners if the dinners were not related to the Co-Op's business. Furthermore, while Hill acknowledged that there was "tribulation" over filling out the insurance forms and answering "yes" to the work related question, he did not dispute that the Co-Op provided information to MetLife and the National Rural Electric Cooperative Association (NREC) that the accident at issue was work related.

Federated submitted depositions of Dennis Glass and Joe Jarrell, both Co-Op board members. Both men testified that the dinners following the board meetings were not mandatory, and Jarrell stated that it was explained to him at his first board meeting that the dinners were for fellowship. Glass stated that a lot of times, people did not go to the dinners because they had other things to do, and Jarrell admitted that once he learned that the dinners were not mandatory, he relaxed in going. Furthermore, Glass and Jarrell both stated that once the board meetings adjourned, the board's business was done, and therefore, they rarely, if ever, talked about Co-Op business at these dinners, but rather, they talked about politics, hunting, and fishing.

Accordingly, from our review of the evidence in the record, we find there is a genuine issue of material fact as to whether attending a dinner following the Co-Op board meeting was within the scope of a director's duty. See Joliboix v. Cajun Comfort, Inc., 16-0414, p. 4 (La. App. 5th Cir. 12/7/16), 207 So.3d 655, 658 (noting that the determination of whether an injury occurred within the course and scope of employment is a mixed question of law and fact).

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter to the trial court for further proceedings. All costs of this appeal are assessed to Iris Nell Spinks Jourdan, Robin Rene Jourdan Smith, and Misty Michelle Jourdan Appe.

REVERSED AND REMANDED; MOTION FOR PARTIAL DISMISSAL OF APPEAL DENIED AS MOOT.

      Plaintiffs filed a motion for partial dismissal of Federated's appeal, because Federated sought not only reversal of the trial court's judgment granting summary judgment in favor of plaintiffs but also sought a judgment from this court entering summary judgment in favor of Federated, finding that there is no coverage under the Federated policy. However, because we find genuine issues of material fact exist precluding the granting of summary judgment in favor of either party, we deny plaintiffs' motion as moot.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2017 CA 0304
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 06, 2018 Rehearing Denied January 25, 2019
    Leopold Z. Sher, James M. Gamer, Peter L. Hilbert Jr., Neal J. Kling, Jeffrey D. Kessler, New Orleans, LA, and Robert Ryland Percy III, Gonzales, LA, and Eric J. Mayer, Houston, TX, Attorneys for Defendant/Appellant Texas Brine Company, LLC
    Christoffer C. Friend, Susan R. Laporte, Meghan E. Smith, New Orleans, LA, and Brad D. Brian (Pro Hac Vice ), Bethany W. Kristovich (Pro Hac Vice ), Los Angeles, CA, Attorneys for Defendant/Appellee Occidental Chemical Corporation
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

This suit arises from the sinkhole that developed in Assumption Parish in August 2012. Texas Brine Company, LLC, appeals a November 27, 2016 judgment denying its request for a preliminary injunction to enjoin arbitration proceedings. Finding the courts lack authority to decide the issues urged as to the injunction, we affirm.

FACTS AND PROCEDURAL HISTORY

After being named a defendant in this suit, Texas Brine filed incidental demands asserting tort and contract claims against various parties, including Occidental Chemical Corporation ("Oxy") and Vulcan Materials Company. Texas Brine alleged that in 1975, Oxy, as owner of the land over the Napoleonville Salt Dome, leased to Texas Brine the right to produce salt from the land. In 1976, Texas Brine transferred its interest in the salt lease to Vulcan, but remained operator of the brine production wells and related facilities pursuant to an Operating and Supply Agreement dated October 29, 1975 ("Operating Agreement"). The Operating Agreement was amended and restated in its entirety by Texas Brine and Vulcan on January 1, 2000 ("Amended Operating Agreement"). Oxy then acquired Vulcan's assets and assumed its obligations under the salt lease and Amended Operating Agreement.

The Amended Operating Agreement contained an arbitration clause in Section 12.10. Pursuant thereto, Texas Brine and Oxy have been engaged in arbitration proceedings, while simultaneously litigating claims in court. According to a scheduling order issued by the trial court, contract claims are being arbitrated, while tort claims are proceeding in court.

Texas Brine now claims Vulcan fraudulently induced it to enter the Amended Operating Agreement and the arbitration agreement contained therein by withholding critical information. Texas Brine asserts the fraudulent inducement vitiated its consent, making both the Amended Operating Agreement and the arbitration clause in Section 12.10, void ab initio. Arguing no enforceable arbitration clause exists, Texas Brine moved for a preliminary injunction to halt the arbitration proceedings until the court decides its fraudulent inducement claims. Oxy countered that Texas Brine's fraudulent inducement claim could not be resolved in the courts and must be raised in the arbitration proceeding, citing this court's decision in Jasper Contractors, Inc. v. E-Claim.com, LLC, 11-0978 (La. App. 1 Cir. 5/4/12), 94 So.3d 123.

The trial court held the arbitrators, not the court, must decide Texas Brine's challenge to the contract as a whole. However, drawing a distinction recognized by the Supreme Court in Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), the trial court found any claim directed specifically to the validity of the arbitration clause should be decided by the court. After considering the evidence presented at the hearing, the trial court found Texas Brine failed to prove its consent to the arbitration clause itself was vitiated by fraud. Consequently, the trial court signed a judgment on November 27, 2016, denying Texas Brine's motion for preliminary injunction and refusing to enjoin the arbitration proceedings.

Texas Brine now appeals, arguing the trial court erred in its determination that arbitration rather than court is the proper forum for resolving the question of whether an enforceable agreement to arbitrate exists between the parties. It argues only a Louisiana court can define the requirements for a valid and binding contract under Louisiana law, and the courts must make the threshold determination as to the validity of the underlying contract giving rise to the arbitration proceeding. Texas Brine additionally argues it did, in fact, make a fraudulent inducement claim directed specifically to the arbitration provision, and the trial court erred in finding the evidence insufficient as to that issue.

DISCUSSION

Arbitration is a matter of contract. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011). Therefore, we begin our analysis with the language of the contract. See Buckeye, 546 U.S. at 442-43, 126 S.Ct. at 1207 ; Jasper Contractors, Inc., 94 So.3d at 126-29.

The Amended Operating Agreement, provides in Section 12.10(a):

Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, validity or termination thereof shall be finally settled by arbitration. Any dispute, controversy or claim arising out of or relating to any of the other instruments and agreements pertaining to the Leased Premises or the use or operation thereof (or the breach, validity or termination thereof) may be consolidated in one proceeding with any arbitration relating to this Agreement. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association [ (AAA) ] in effect at the time of arbitration ("the Rules"), except as modified herein or by mutual agreement of the parties. The arbitration shall be held in New Orleans, Louisiana. The arbitration shall be governed by the U.S. Federal Arbitration Act [ (FAA) ]. [ (Emphasis added.) ]

According to the express terms of the contract, the FAA ( 9 U.S.C. §§ 1 - 16 ) and AAA rules govern resolution of this dispute.

The FAA requires "that courts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself." Granite Rock Co. v. International Broth. of Teamsters, 561 U.S. 287, 301, 130 S.Ct. 2847, 2858, 177 L.Ed.2d 567 (2010). The Supreme Court has interpreted the FAA to mean that claims of fraud in the inducement of a contract containing an arbitration clause are decided by the arbitrator, not the court. Buckeye, 546 U.S. at 445, 126 S.Ct. at 1208. The Supreme Court further rejected the argument that the FAA only requires enforcement of arbitration clauses in contracts first determined valid under state law. Buckeye, 546 U.S. at 445, 126 S.Ct. at 1208-09. Thus, in accordance with the Supreme Court's interpretation of the FAA, the question of whether the Amended Operating Agreement is void because Texas Brine's consent was vitiated by fraud in the inducement of the contract must be decided by the arbitrator.

Texas Brine argues that its fraudulent inducement claim additionally challenges the arbitration clause itself. Under the FAA, the courts are generally authorized to decide challenges to the enforceability of the arbitration clause itself. See Buckeye, 546 U.S. at 445, 126 S.Ct. at 1208. However, the parties may contractually delegate the authority to decide issues of arbitrability, including the validity of the arbitration clause, to the arbitrator. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995). That is, if the parties' contract expressly gives the arbitrator the power to decide challenges to the validity of the arbitration clause, the arbitrator, rather than the courts, must decide the clause's validity. See Jasper Contractors, Inc., 94 So.3d at 134 ; see also First Options of Chicago, Inc., 115 S.Ct. at 1923-24 ; Crawford Professional Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 262 (5th Cir. 2014).

Rule R-7 of the AAA Rules provides the arbitrator shall have the power to rule on his or her own jurisdiction, including the validity of the arbitration agreement. A contract's incorporation of the AAA Rules that empower an arbitrator to decide issues of arbitrability serves as clear and unmistakable evidence of the parties' intent to delegate such issues to the arbitrator. Jasper, 94 So.3d at 133. Here, the Amended Operating Agreement explicitly incorporates the AAA rules; therefore, to the extent Texas Brine alleged the arbitration clause itself was induced by fraud, that challenge to the arbitration clause must also be decided by the arbitrator. Consequently, for purposes of this appeal, whether Texas Brine actually made a challenge specific to the arbitration clause is a distinction without a difference.

Texas Brine's arguments that no enforceable arbitration clause exists as a result of fraudulent inducement, whether directed at the contract as a whole or at both the contract and the arbitration clause itself, must be decided through arbitration. Accord LeBlanc v. Texas Brine Co., LLC, 12-2059, 2016 WL 2849506 (E.D. La. 2016) (finding, in related sinkhole proceedings in federal court, that Oxy established "the parties' clear and unmistakable intent to arbitrate the issue of arbitrability" given that Section 12.10 of the Amended Operating Agreement between Texas Brine and Oxy expressly incorporated the Commercial Arbitration Rules of the AAA, including Rule 7(a) governing jurisdiction). Texas Brine's request for a preliminary injunction premised on those issues was properly denied.

CONCLUSION

The November 27, 2016 judgment denying Texas Brine's request for a preliminary injunction enjoining arbitration proceedings is affirmed. Costs of this appeal are assessed to Texas Brine Company, LLC.

AFFIRMED.

McDonald, J. agrees and assigns additional reasons

Holdridge J. concurs with the result and assigns reasons

McDONALD, J., agreeing and assigning additional reasons.

Although I agree with the majority opinion, I write separately to point out that a different result may have been reached if Louisiana arbitration law, LSA-R.S. 9:4201 et seq., were applicable to the Amended Operating Agreement. See George Engine Co., Inc. v. Southern Shipbuilding Corporation, 350 So.2d 881 (La. 1977). Generally, also see Martin Domke, Gabriel Wilner, and Larry E. Edmondson, 1 Domke on Commercial Arbitration, § 11:2 Fraud in the Inducement of Contract; The Federal Rule and § 11:4 Other State Jurisdictions (August 2018 update).

HOLDRIDGE, J., CONCURS, AND ASSIGNS REASONS.

I respectfully concur with the result reached by the majority. However, I write separately since the majority erred in using the incorrect standard in deciding a request for a preliminary injunction by attempting to make a final ruling on the merits of the case and further erred in making a conclusory statement that the trial court lacked the authority to decide the issues urged in Texas Brine's request for a preliminary injunction.

A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. Zachary Mitigation Area, LLC v. Tangipahoa Parish Council, 2016-1675 (La. App. 1 Cir. 9/21/17), 231 So.3d 687, 690. A preliminary injunction is an interlocutory procedural device designed to preserve the status quo pending a trial on the merits of the issues of the case. See La. C.C.P. art. 3601 ; Levine v. First Nat. Bank of Commerce, 2006-0394, 2006-0439 (La. 12/15/06), 948 So.2d 1051, 1056 n. 4. Even though the preliminary injunction hearing may touch upon or tentatively decide merit issues, the principal demand can be determined on its merits only after a full trial under ordinary process. Id. This rule is subject to the exception that if the parties have expressly agreed to submit the case for final decision at the hearing on the rule for a preliminary injunction, the ruling on the preliminary injunction may definitively dispose of the merit issues. See Adler v. Williams, 2016-0103 (La. App. 1 Cir. 9/16/16), 203 So.3d 504, 514. The record in this case does not contain a stipulation or agreement of the parties that the issue of the granting of a permanent injunction would be decided at the hearing on the preliminary injunction. In fact, the trial judge in his reasons for judgment stated, "[The] ultimate finding is beyond the scope of this injunction analysis and should be reserved until there is a ruling after a full hearing on the merits."

Therefore, in order to obtain a preliminary injunction as opposed to a permanent injunction, Texas Brine at a hearing must make a sufficient prima facie showing that it is likely to prevail on the merits of its claim of fraudulent inducement and that it will be irreparably harmed unless arbitration is enjoined. See La. C.C.P. art. 3601 ; Farmer's Seafood Co., Inc. v. State ex rel. Dept. of Pub. Safety , 2010-1534 (La. 9/3/10), 44 So.3d 676, 678 (per curiam). At the preliminary injunction hearing, the trial court was not called upon to make a definitive ruling on whether the fraudulent inducement claim must be decided by the arbitrator or the court. The only issue for the court to decide was whether Texas Brine made a prima facie case that the claim of fraudulent inducement should be decided by the trial court and not the arbitrator, and if so, would Texas Brine suffer irreparable injury if the arbitration was allowed to proceed. The burden of proof for a preliminary injunction is different from that of a permanent injunction. While a prima facie showing may be required to obtain a preliminary injunction, a permanent injunction shall only issue if the plaintiff proves its case by a preponderance of the evidence. Therefore, in this case, the final decision on who should decide the fraudulent inducement claim must be decided after a full trial on the merits, not by the trial court at a hearing on the preliminary injunction (see Elysian Fields Church of Christ v. Dillon , 2008-0989 (La. App. 4 Cir. 3/18/09), 7 So.3d 1227, 1232 ), and not by this court on an appeal of a denial of a preliminary injunction.

Lastly, there can be no question that the trial court in this case had the authority to "decide the issues urged as to the injunction." The parties recognized the authority of the trial court to decide the injunction issue when they stipulated to the extension of the temporary restraining order pending the court's ruling on the preliminary injunction. While the trial court has the subject matter jurisdiction to hear this case, the defendants may have delayed the ability of the trial court to proceed by filing either a dilatory exception raising the objection of prematurity or by filing a motion to stay the proceedings. Therefore, I respectfully concur in affirming the trial court's judgment that denied Texas Brine's request for a preliminary injunction enjoining arbitration proceedings.

      Whether Texas Brine's transfer of its salt lease to Vulcan constituted a legal assignment is the subject of another appeal pending before this court under docket number 2018CA0075 c/w 0241 c/w 0796.

      Oxy previously sought supervisory review of both the denial of its motion to stay trial court proceedings between itself and Texas Brine pending the outcome of the arbitration and the denial of its exception of arbitration as to tort claims. In denying the motion to stay, the trial court limited the scope of the arbitration clause to claims arising under contract, distinguishing those from claims arising under Louisiana Civil Code articles 667 and 2317, or under tort, which it found are not subject to arbitration. This court denied the application for supervisory writ, but two judges dissented stating they would stay the proceedings involving the delictual claims until the arbitration panel decided arbitrability. See Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC , 15-1211 (La. App. 1 Cir. 12/17/15) (unpublished writ action), writ denied, 16-0113 (La. 2/4/16), 186 So.3d 1155.

      Although a trial court's judgment on a preliminary injunction constitutes an interlocutory ruling, a party aggrieved by a judgment granting or denying a preliminary injunction is entitled to appeal. La. Code Civ. Pro. art. 3612B; Zachary Mitigation Area, LLC v. Tangipahoa Parish Council, 16-1675 (La. App. 1 Cir. 9/21/17), 231 So.3d 687, 691. This court previously denied Texas Brine's application for supervisory writ of review of the trial court's ruling. Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, 16-1605, 2017 WL 496373 (La. App. 1 Cir. 2/6/17) (unpublished writ action), writ denied, 17-0428 (La. 4/24/17), 219 So.3d 1098. That ruling merely represents this court's decision not to exercise supervisory jurisdiction and, despite the inclusion of citations supporting the trial court's decision, did not create law of the case. See Maloney Cinque, L.L.C. v. Pacific Ins. Co., Ltd., 10-1164 (La. 5/21/10), 36 So.3d 236 ("[O]nce the court of appeal denied the writ, any additional remarks or findings are not binding."); Davis v. Jazz Casino Co., L.L.C., 03-0276 (La. 6/6/03), 849 So.2d 497, 498 (per curiam ).

      Texas Brine argues Louisiana jurisprudence, including the Louisiana Supreme Court's decision in George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La. 1977), dictates a contrary result. However, this court rejected that argument in Jasper , noting George Engine involved application of Louisiana law, not the FAA and AAA rules. Jasper, 94 So.3d at 134. Further, subsequent to George Engine , the Louisiana Supreme Court recognized courts must enforce arbitration agreements covered by the FAA, notwithstanding state statutory or jurisprudential rules to the contrary. See Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1, 8 ; see also Astro Technology, Inc. v. D.H. Griffin of Texas, Inc., 06-0325 (La. 5/26/06), 930 So.2d 3 ; Gupta v. Surgical Partners of America, Inc., 06-0507 (La. 5/26/06), 930 So.2d 4. Likewise, Duhon v. Activelaf, LLC, 16-0818 (La. 10/19/16), --- So. 3d ----, 2016 WL 6123820, cert. denied , --- U.S. ----, 137 S.Ct. 2268, 198 L.Ed.2d 700 (2017), is both factually and legally distinguishable from the case sub judice as it involved application of Louisiana arbitration law to an adhesionary arbitration agreement.

      If arbitration is the sole remedy and injunctive relief was not available to Texas Brine, the arbitration defense should have been raised by an exception of prematurity, which cannot be raised by the court of appeal on its own motion. See La. C.C.P. art. 926(1) ; Moreno v. Entergy Corp., 2010-2281 (La. 2/18/11), 62 So.3d 704, 705 ; Cook v. AAA Worldwide Travel Agency, 360 So.2d 839, 841 (La. 1978). Even though a contract contains an arbitration clause, the parties can stipulate and agree that the issue will be heard by the trial court. The failure of a party to arbitrate in accordance with the terms of an agreement or the inability of a party to stop arbitration must be raised by a party either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. See La. R.S. 9:4202 ; Swaggart v. Doe, 50,739 (La. App. 2 Cir. 4/5/17), 216 So.3d 1118, 1125, writ denied, 2017-0758 (La. 9/22/17), 227 So.3d 822.


author: Judge Roland L. Belsome

text:
    Norris "Mickey" DEARMON, Shawn Rivers, John Roper, II, Shawn White, and David Bexlay v. ST. ANN LODGING, L.L.C., d/b/a Bourbon Orleans Hotel and QBE North America Insurance Group
    NO. 2018-CA-0994
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 27, 2019
    Jacques F. Bezou, Jr., Jacques F. Bezou, Erica A. Hyla, The Bezou Law Firm, 534 E. Boston Street, Covington, LA 70433, Rene Paul Frederick, Jeanne M. Mauldin, Rene Frederick & Associates, LLC, 112 N. Jefferson Avenue, Covington, LA 70433, COUNSEL FOR PLAINTIFFS/APPELLANTS
    James A. Prather, Mark E. Seamster, Galloway Johnson Tompkins Burr & Smith, Three Sanctuary Boulevard, Suite 301, Mandeville, LA 70471, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
   Judge Roland L. Belsome

The plaintiffs/appellants, Norris "Mickey" Dearmon, Shawn Rivers, John Roper, II, Shawn White, and David Bexlay (collectively the "plaintiffs"), appeal the trial court's granting of summary judgment in favor of appellees, St. Ann Lodging, LLC d/b/a Bourbon Orleans Hotel and QBE North America Insurance Group (collectively the "Hotel"). For the reasons that follow, we reverse and remand the matter for further proceedings.

On November 21, 2013, the plaintiffs were guests of the hotel when they were beaten and robbed in their hotel room after opening the door for unknown individuals that identified themselves as the police. Subsequent to the incident, the plaintiffs filed suit against the Hotel alleging that the Hotel was negligent in failing to provide the plaintiffs with adequate security.

In October of 2016, the Hotel filed a motion for summary judgment maintaining that the plaintiffs had no admissible evidence to establish that the Hotel breached a duty of care owed to them or that the incident of November 21, 2013 was reasonably foreseeable. Following a hearing, the trial court took the motion for summary judgment under advisement and permitted the parties to submit post-hearing memoranda. Later, the trial court rendered judgment granting the Hotel's motion for summary judgment.

When determining whether summary judgment was correctly granted, the appellate courts conduct a de novo review using the same criteria as the trial court. Fleming v. Hilton Hotels Corp. , 1999-1996, p. 2 (La.App. 4 Cir. 7/12/00), 774 So.2d 174, 176 (citing Reynolds v. Select Properties, Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 ). In accordance with La. C.C.P. article 966, "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).

In Louisiana, a negligence action is analyzed under a duty-risk analysis. Burch v. SMG, Schindler Elevator Corp. , 2014-1356, p. 5 (La.App. 4 Cir. 4/7/16), 191 So.3d 652, 658 (citing McCloud v. Housing Auth. of New Orleans , 2008-0094, p. 3 (La.App. 4 Cir. 6/11/08), 987 So.2d 360, 362 ). There are five elements to the duty-risk analysis that the plaintiff must prove to be successful in a negligence claim: (1) that the defendant had a duty to conform his conduct to a specific standard; (2) that the defendant's conduct failed to conform to the appropriate standard; (3) that the defendant's substandard conduct was a cause in fact of the plaintiff's injuries; (4) that the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 633 (citation omitted).

Whether the defendant owed the plaintiff a duty is the threshold issue in a negligence action. Id. If it is determined that the defendant did not have a duty to protect the plaintiff from the harm suffered, then there cannot be a finding of negligence. Duty is a question of law. Id. The general rule is that businesses do not have a duty to protect their customers from the criminal activities of third parties. Posecai v. Wal-Mart Stores, Inc. , 1999-1222 (La. 11/30/99), 752 So.2d 762, 766. However, in Louisiana, an "innkeeper has a duty to take reasonable precautions against criminals." Salafian v. Gabriel , 2013-1399, p. 6 (La.App. 4 Cir. 7/16/14), 146 So.3d 753, 757 (quoting Kraaz v. La Quinta Motor Inns, Inc. , 410 So.2d 1048, 1053 (La. 1982) ).

Louisiana courts have adopted a balancing test to determine if a business owes a duty to protect its customers from the criminal acts of third parties. Id. at 768. The court must weigh "[t]he foreseeability of the crime risk on the defendant's property and the gravity of the risk to determine the existence and extent of the defendant's duty." Id. This test is applied to the facts and circumstances surrounding each case. Id.

A key factor in determining the foreseeability of the crime risk is the past occurrence of similar incidents. However, the inquiry does not end there. The court must also consider the location, nature, and condition of the property. Additionally, if management or employees of the business had knowledge that a third party's intended injurious conduct was about to occur, there is a duty to act. See Ballew v. Southland, Corp. , 482 So.2d 890 (La.App. 2 Cir. 1/22/86).

In this case, the trial court found that the plaintiffs did not meet their burden of establishing the Hotel owed a duty to protect them under the circumstances presented. To prove that the plaintiffs could not establish that a duty was owed, the Hotel offered the affidavit of its General Manager, Mark Wilson. Mr. Wilson attested to the fact that he had no knowledge about incidents involving alleged criminal activity at the Bourbon Orleans Hotel or in the area immediately surrounding the hotel. Further, he stated that there had been no reported assaults or robberies in the common areas of the hotel or in the immediate vicinity of the hotel. According to Mr. Wilson, the November 21, 2013 armed robbery was the first and only such reported violent crime at or near the hotel.

In opposition to the Hotel's motion for summary judgment, the plaintiffs provided an affidavit from a safety and security expert, Raymond Pendleton. Mr. Pendleton has thirty years of experience in the fields of security and investigations. He stated that he reviewed and analyzed documents, discovery responses, and various reports detailing the facts and circumstances surrounding the incident at the Bourbon Orleans Hotel. One of the reports authored by a Bourbon Orleans Hotel employee indicated that the "night auditors had noticed 5 'shady' looking guys walk passed [sic] the front desk to the elevators. Security also noticed them on the monitors in PDX. Security radioed the front desk and asked where they were going." The auditors claimed the elevator stopped on several floors. After walking a few of the floors, security was unable to locate the men. Then, the front desk received a noise complaint from guests on the fifth floor. Security and the night auditor went to the fifth floor where they claimed to have heard a commotion and someone shouting "get on the floor! Put your head down #$&*%!." At that time, security chose to disengage and call the police.

That evidence, together with the Bourbon Orleans Hotel's central location in the French Quarter, resulted in Mr. Pendleton's conclusion that the risk of crime and the potential for violent and non-violent criminal activity was reasonably foreseeable. He further found that the failure of the Bourbon Orleans Hotel's employees and security staff to intervene and prevent the criminal activity amounted to inadequate security measures. Notably, the Hotel did not offer any evidence to controvert Mr. Pendleton's expert conclusions provided in the affidavit.

This Court, guided by Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, has reasoned that "summary judgment should be denied when the movant, herein Appellees, fail to offer any scintilla of evidence that controverts the testimonial evidence offered by Appellant's expert witness." Guy v. Howard Hughes Corp., 2018-0413, p. 4, n.1 (La.App. 4 Cir. 12/19/18), 262 So.3d 327. Furthermore, the Louisiana Supreme Court has reasoned that:

If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert's opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at t trial.

Independent Fire Ins. Co. v. Sunbeam Corp. , 1999-2181, p. 17 (La. 2/29/00), 755 So.2d 226, 236.

Accordingly, after reviewing the evidence presented together with the applicable law, we find that the trial court erred in granting the motion for summary judgment. The plaintiffs effectively established a genuine issue of material fact as to the extent of the duty owed to these plaintiffs. The trial court's ruling is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED

ATKINS, J., CONCURS WITH REASONS

ATKINS, J., CONCURS WITH REASONS.

I agree with the majority's opinion as to the result and hereby assign additional reasons why the reversal of summary judgment and remand is appropriate. Although the majority states that businesses have a duty to take reasonable precautions to protect customers from criminal acts, I further note that jurisprudence shows that hotels are required to exercise "a higher degree of care" to protect their guests. Salafian v. Gabriel , 2013-1399, pp. 6-7 (La. App. 4 Cir. 7/16/2014), 146 So.3d 753, 756-57, writ denied , 2014-1733 (La. 11/7/14), 152 So.3d 179 (citing Kraaz v. La Quinta Motor Inns, Inc. , 410 So.2d 1048, 1053 (La. 1982) ); Landry v. St. Charles Inn, Inc. , 446 So.2d 1246, 1249 (La. App. 4 Cir. 1984) ; Banks v. Hyatt Corp. , 722 F.2d 214 (5th Cir. 1984). The relationship between a hotel owner and its guest is a special one that is similar to the relationship between a common carrier and a passenger. Salafian, supra ; Landry, supra ; Banks, supra . The "higher degree of care" required of a hotel owner is greater than the "ordinary or reasonable care to protect their guests against injury by third persons." Banks, supra . A hotel owner has a "duty to take reasonable precautions against criminals," which includes taking "reasonable precautions to deter the type of criminal activity which resulted in a guest's injury." Salafian, supra ; Landry, supra ; Banks, supra .

As the majority notes, the Hotel's security officers had knowledge of the suspicious persons and that there was a potential for criminal activity. Despite such knowledge, the Hotel failed to provide adequate protection for their guests or implement precautions to deter the criminal activity that resulted in the guests' injuries. Therefore, the Hotel failed to exercise a higher degree of care to protect its guests from criminal activity.

For these additional reasons, I concur with the majority's opinion.

      The room was registered in Mr. Dearmon's name.

      The trial court originally rendered judgment on December 5, 2017. The plaintiffs filed an appeal from that judgment. This court determined that the decretal language in the judgment was insufficient to confer jurisdiction. Dearmon v. St. Ann Lodging, LLC, 2018-0377 (La.App. 4 Cir. 9/7/18), 255 So.3d 635. The appeal was dismissed without prejudice and remanded. The judgment was properly amended and this appeal followed.

      This report was entered into evidence at the hearing for the motion for summary judgment.


author: Judge Rosemary Ledet

text:
    STATE of Louisiana v. Duane HENRY
    NO. 2018-KA-0835
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 27, 2019
    Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR APPELLANT
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   Judge Rosemary Ledet

In this criminal appeal, the appellant, Duane Henry, appeals his sentence of life imprisonment with the benefit of parole. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 28, 1993, Mr. Henry and Joshua Williams murdered Todd Perry. At the time of the offense, Mr. Henry was sixteen years old. He and Mr. Williams were indicted for first degree murder and convicted of second degree murder. On September 30, 1994, the district court imposed on both of them the statutorily-mandated sentence of life imprisonment without the benefit of parole. On appeal, their convictions and sentences were affirmed. State v. Williams , 96-0131 (La. App. 4 Cir. 9/17/97), 701 So.2d 270.

In 2012, the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012). In light of Miller , Mr. Henry sought to have his sentence corrected. Although the district court granted Mr. Henry's motion, the Louisiana Supreme Court reversed, finding that Miller did not apply retroactively. State v. Williams , 13-0820 (La. 6/20/14), 142 So.3d 9.

Mr. Henry then petitioned the federal courts for a writ of habeas corpus . During the pendency of his petition, the United States Supreme Court held that Miller applies retroactively. Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016). Accordingly, the federal district court granted Mr. Henry's habeas petition, vacated his sentence, and ordered the state district court to resentence him.

Henry v. Cain , No. 15-5011 (E.D. La. Nov. 28 2016), 2016 WL 6947000 (unpub. ).

After a Miller hearing, the state district court sentenced Mr. Henry to life imprisonment with the benefit of parole. The district court denied his motion for reconsideration. This appeal followed.

ERRORS PATENT

Pursuant to La. C.Cr.P. art. 920, we have reviewed the record for errors patent and find none.

DISCUSSION

As an initial matter, Mr. Henry's appellate counsel represents that that "[a]fter a conscientious and thorough review of the trial court record, [he] can find no non-frivolous issue to raise on appeal and can find no ruling of the trial court that arguably supports the appeal." Accordingly, Mr. Henry's appellate counsel moves to withdraw, citing Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241.

Pursuant to the procedure outlined in State v. Benjamin , 573 So.2d 528 (La. App. 4th Cir. 1990), and sanctioned in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, this court has performed an independent review of the record on appeal. Like Mr. Henry's counsel, we find no non-frivolous issue.

Nonetheless, Mr. Henry moved for, and was granted, leave to file a supplemental brief. Mr. Henry assigns six errors.

Pro Se Supplemental Assignment of Error 1

Mr. Henry asserts that the district court "violated the Supremacy Clause and the Eighth Amendment when it disobeyed a constitutional command recognized by the Supreme Court." Essentially, Mr. Henry contends that the district court erred in sentencing him to life imprisonment because Miller and Montgomery forbid life sentences for juvenile offenders.

Mr. Henry's argument is premised on a mistaken reading of Miller and Montgomery . Neither case held that the federal constitution forbids a sentence of life imprisonment for juveniles; rather, as noted elsewhere in this opinion, the Supreme Court in Miller held only that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," 567 U.S. at 479, 132 S.Ct. at 2469. Thus, the narrow focus of Miller (made retroactive by Montgomery ) was parole eligibility.

In this case, the district court sentenced Mr. Henry to life imprisonment with the benefit of parole-a sentence unquestioned by either Miller or Montgomery . This assignment of error is without merit.

Pro Se Supplemental Assignment of Error 2

Mr. Henry asserts that the district court "imposed a rehabilitation rationale as punishment instead of a penalty prescribed by the Louisiana Legislature." Essentially, Mr. Henry contends that, because Miller invalidated life sentences for juvenile offenders, the district court was required to impose a determinate sentence. As discussed elsewhere in this opinion, however, Miller did not invalidate life sentences for juvenile offenders; thus, Louisiana courts have rejected this argument. This assignment of error is without merit.

Pro Se Supplemental Assignments of Error 3 and 4.

Mr. Henry asserts that the district court "denied [him] 'fair notice' protection when it imposed the 'unforeseeable and retroactive judicial expansion' of [La.] R.S. 15:574.4(E) in place of the penalty invalidated by Miller ." Mr. Henry also asserts that the district court "violated the Ex Post Facto Clause when it applied a legislative enactment not in existence at the time this offense occurred to the defendant at sentencing." Essentially, Mr. Henry contends that because La. R.S. 15:574.4 -which governs the timing of parole eligibility for juvenile offenders-was enacted after his crime, retroactive application of the limitations set forth in the statute violates his constitutional right to due process and the protection against the ex post facto application of law. Louisiana courts have rejected these arguments. These assignments of error are without merit.

Pro Se Supplemental Assignments of Error 5 and 6

Mr. Henry asserts that, because the district court "fail[ed] to fashion an 'individualized sentence,' " the district court "imposed an excessive sentence in violation of [the] Eighth Amendment and the La. Constitution Article I, § 20." It is, however, well settled that the only relief available at a Miller hearing is a determination of whether the previously-imposed life sentence is to be served with or without the benefit or parole. The district court, which imposed a sentence of life imprisonment with the benefit of parole, was without authority to impose on Mr. Henry any more lenient sentence. This assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant's sentence is affirmed. Appellate counsel's motion to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      We address Mr. Henry's assignments of error, which are unnumbered, in an order conducive to our analysis.

      Notably, in Montgomery , the Supreme Court reiterated that a juvenile offender may still be sentenced-after a hearing and in an appropriate case-to life imprisonment without the possibility of parole. 136 S.Ct. at 726 (noting that "Miller did not foreclose a sentencer's ability to impose life without parole on a juvenile").

      See generally State v. Graham , 14-1769, pp. 11-12 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 280 (observing that the Louisiana Supreme Court, in State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939 (per curiam ), had rejected the argument that Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (which invalidated life sentences without parole for juveniles convicted of non-homicide crimes), required such defendants to be resentenced to a determinate sentence and that Louisiana courts "have used the same approach in applying Miller to sentencing juveniles for homicide offenses") (citing State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934 ; State v. Baker , 14-0222 (La. App. 1 Cir. 9/19/14), 154 So.3d 561 ; State v. Smoot , 13-453 (La. App. 5 Cir. 1/15/14), 134 So.3d 1 ).

      See, e.g. , State v. Young , 18-0564 (La. App. 1 Cir. 11/5/18) (unpub. ), 2018 WL 5785260 ; State v. Smith , 18-131 (La. App. 5 Cir. 10/17/18), 258 So.3d 973 ; State v. Olivier , 17-0724 (La. App. 4 Cir. 2/21/18), 238 So.3d 606, writ denied , 18-0492 (La. 1/14/19), 261 So.3d 783 ; State v. Comeaux , 17-682 (La. App. 3 Cir. 2/15/18), 239 So.3d 920, writ denied , 18-0428 (La. 1/14/19), 261 So.3d 783State v. Harper , 51,539 (La. App. 2 Cir. 8/9/17), 243 So.3d 1084, writ denied , 17-1423 (La. 5/18/18), 242 So.3d 1225 ; State v. Williams , 15-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, 252.

      See Montgomery, 136 S.Ct. at 736 (observing that "[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them"); State v. Montgomery , 13-1163, p. 1 (La. 6/28/16), 194 So.3d 606, 607 (instructing that "[i]n resentencing, the District Court shall determine whether relator was "the rare juvenile offender whose crime reflects irreparable corruption," Miller, 132 S.Ct. at 2469, or he will be eligible for parole under the conditions established in La.R.S. 15:574.4(E)") (on remand from U.S. Supreme Court); see also id. at 610 (Crichton, J., concurring) (observing that "Eligibility vel non is the sole question to be answered in a Miller hearing" and that "[i]f parole eligibility is not denied by the district court, future prospects for parole will depend on the prerequisites of La. R.S. 15:574.4(E) and on the ultimate determinations of the Parole Board").


author: LOBRANO, J. CONCURS IN THE RESULT.

text:
    STATE of Louisiana v. Nathaniel LAMBERT
    State of Louisiana v. Nathaniel Lambert
    NO. 2018-KA-0777 NO. 2018-K-1024
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 27, 2019
    Leon Cannizzaro, District Attorney, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, Nathaniel Lambert # 90883 (PRO SE), MPEY/SPRUCE-3, Louisiana State Prison, Angola, LA 70712 COUNSEL FOR APPELLANT/DEFENDANT
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
    Judge Tiffany G. Chase Nathaniel Lambert (hereinafter "Mr. Lambert") appeals the trial court's denial of his motion to quash, motion for discharge, and motion to reconsider sentencing pertaining to the resentencing of his convictions for aggravated rape and aggravated crime against nature. He asserts two counseled assignments of error. First, Mr. Lambert maintains the seventeen-year delay in resentencing is unreasonable, warranting a discharge of his convictions for aggravated rape and aggravated crime against nature. Second, he contends the sentences imposed are excessive.
    Additionally before us is Mr. Lambert's pro se writ, seeking review of the trial court's denial of his motion to correct an illegal sentence - life imprisonment without the possibility of parole, probation, or suspension of sentence - for his conviction of aggravated burglary enhanced by virtue of being adjudged a quadruple offender. We have consolidated this writ with this appeal.
    For the reasons that follow, we affirm Mr. Lambert's sentences and deny his writ.
    RELEVANT FACTS AND PROCEDURAL HISTORY
    In 1997, Mr. Lambert was charged by grand jury indictment of aggravated rape ( La. R.S. 14:42 ), aggravated burglary ( La. R.S. 14:60 ), and aggravated crime against nature ( La. R.S. 14:89.1 ). A twelve-person jury found him guilty on all counts. Mr. Lambert was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence for the charge of aggravated rape; thirty years for the charge of aggravated burglary; and fifteen years for the charge of aggravated crime against nature. The State then filed a multiple bill on the aggravated burglary conviction. After a habitual offender hearing, the trial court vacated the thirty-year sentence and resentenced Mr. Lambert as a recidivist offender to life imprisonment. He appealed. This Court affirmed all of Mr. Lambert's convictions, but vacated the sentences on his convictions of aggravated rape and aggravated crime against nature, and remanded for resentencing because the trial court sentenced him prior to hearing his motion for new trial. Lambert , 1998-0730, p. 45, 749 So.2d at 767. Although the trial court ruled on other post-conviction relief, it never resentenced Mr. Lambert on his convictions for aggravated rape and aggravated crime against nature.
    In September 2017, Mr. Lambert filed a pro se motion to clarify sentences averring that his "RAP sheet" incorrectly reflected two life sentences and should be amended to only reflect the life sentence resulting from the enhanced sentence on aggravated burglary. The trial court denied the motion for clarification as premature and appointed Mr. Lambert counsel for a resentencing hearing.
    The resentencing hearing occurred on April 3, 2018. In conjunction with the hearing, Mr. Lambert filed a pro se motion to quash and pro se motion for discharge from custody based on the delay in resentencing. These motions were denied and the court resentenced Mr. Lambert to life imprisonment without the benefit of parole, probation, or suspension of sentence on the count of aggravated rape, and fifteen years on the count of aggravated crime against nature, with both sentences to run concurrently, with credit for time served. After his motion to reconsider the sentences was denied, Mr. Lambert timely appealed.
    After the appeal was lodged in this Court, Mr. Lambert filed a pro se motion in the trial court to correct his multiple offender sentence on the aggravated burglary conviction on the grounds of retroactive application of La. R.S. 15:308 and State ex rel. Esteen v. State , 2016-0949 (La. 1/30/18), 239 So.3d 233. The trial court denied the motion in a written ruling, finding Mr. Lambert would be ineligible for relief. Since he was resentenced to life imprisonment for the charge of aggravated rape, the retroactive application would not ameliorate his circumstances. La. R.S. 15:308(B). Mr. Lambert filed a pro se writ to this Court seeking supervisory review and further requesting a stay of his appeal or consolidation of his writ into his appeal. As disposition of this claim is germane to the appeal of his life sentence for aggravated rape, we ordered the writ to be consolidated with the instant appeal.
    STANDARD OF REVIEW
    A trial court's ruling on a motion to quash involving factual determinations should not be disturbed absent an abuse of discretion. State v. Simmons , 2013-0312, p. 4 (La.App. 4 Cir. 10/16/13), 126 So.3d 692, 695. An appellate court may not set aside a sentence absent an abuse of discretion by the sentencing court. State v. Cann , 471 So.2d 701, 703 (La. 1985).
    ERRORS PATENT
    The record was reviewed for errors patent pursuant to La. C.Cr.P. art. 920. None were found.
    DISCUSSION
    Mr. Lambert asserts two counseled assignments of error. We address each in turn before considering his pro se writ.
    COUNSELED ASSIGNMENT OF ERROR NO. 1: DELAY IN RESENTENCING
    In Mr. Lambert's first counseled assignment of error, he argues the trial court erred in not discharging his sentences for aggravated rape and aggravated crime against nature because the seventeen-year delay in resentencing was unreasonable. Louisiana Constitution Article I § 22 provides:
    All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
    Principles of due process prohibit inordinate delays in post-conviction proceedings. State v. Duncan , 396 So.2d 297, 299 (La. 1981). These principles are primarily safeguarded by statutory law. See Betterman v. Montana , --- U.S. ----, 136 S.Ct. 1609, 1617 n.10, 194 L.Ed.2d 723 (2016) (listing, among other similar provisions, La. C.Cr.P. art. 874 ). La. C.Cr.P. art. 874 mandates sentences shall be imposed without unreasonable delay. In determining whether the delay in Mr. Lambert's resentencing was unreasonable or prejudicial, this Court must adopt a flexible approach evaluating the circumstances of his case. Duncan , 396 So.2d at 299 (citing City of Baton Rouge v. Bourgeois , 380 So.2d 63 (La. 1980) (per curiam ) and State v. Johnson , 363 So.2d 458 (La. 1978) ). That there was a delay of seventeen years prior to Mr. Lambert's resentencing is not disputed. Mr. Lambert contends this delay should be considered as presumptively unreasonable and that, coupled with alleged prejudice stemming from his loss of prison privileges, the appropriate sanction is discharge of his convictions of aggravated rape and aggravated crime against nature. See Bourgeois , 380 So.2d at 64. The question thus presented is whether such a sanction is warranted under the foregoing factual circumstances.
    The unreasonableness of a sentencing delay is irrelevant in the absence of prejudice to the defendant.
    Johnson , 363 So.2d at 461 (citing La. C.Cr.P. art. 921) ; Duncan , 396 So.2d at 300 ; State v. Watkins , 2007-0789, p. 9 (La.App. 4 Cir. 11/21/07), 972 So.2d 381, 386 ("[e]ven assuming the delay was unreasonable, it did not prejudice [the defendant]"). As a conviction for aggravated rape mandates a sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence, we find Mr. Lambert has suffered no prejudice. See State v. Stewart , 1998-1215, p. 5 (La.App. 4 Cir. 3/10/99), 732 So.2d 74, 76 (even where delay not attributable to defendant, no prejudice found because he could not have expected a less severe result on resentencing); State v. Howard , 2000-2700, p. 9 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, 1255 (no prejudice found even where delay in sentencing occurred solely through acts and omission of the trial court because defendant could not have expected a less severe sentence on resentencing). On resentencing, Mr. Lambert was subject to the same mandatory sentence he originally received. Moreover, during the seventeen-year delay, Mr. Lambert was concurrently serving his life sentence for aggravated burglary.
    Mr. Lambert also argues that he suffered prejudice through the loss of privileges due to the prolonged pendency of resentencing. The privileges include being prevented from enrolling into school to obtain a GED, working at the Angola Rodeo, receiving trustee status and enrolling in educational/trade programs. While we do not dispute the value of such privileges, we find they do not constitute prejudice as contemplated by the jurisprudence. See, e.g., State v. Hancock , 1999-0293, pp. 8-9 (La.App. 3 Cir. 11/24/99), 748 So.2d 549, 554 (prejudice where delay in sentencing on prior conviction prevented eligibility for parole to a half-way house). On resentencing, Mr. Lambert would not have stood to gain the benefit of parole or early release. Accordingly, we find this assignment of error without merit.
    COUNSELED ASSIGNMENT OF ERROR NO. 2: EXCESSIVE SENTENCE
    In Mr. Lambert's second counseled assignment of error, he argues the trial court erred in denying his motion to reconsider sentences. We find the resentencing of Mr. Lambert to life imprisonment for his conviction of aggravated rape is not excessive. In determining the excessiveness of a sentence, appellate courts apply a two-pronged test. State v. Barbain , 2015-0404, p. 29 (La.App. 4 Cir. 11/4/15), 179 So.3d 770, 787-88. The first prong, ensuring adequate compliance with the sentencing guidelines of La. C.Cr.P. 894.1, is inapplicable to this case as "failing to articulate reasons for sentencing when imposing a mandatory sentence is not an error because such action would be an exercise in futility." State v. Hayden , 1998-2768, pp. 13-14 (La.App. 4 Cir. 5/17/00), 767 So.2d 732, 742 (citations omitted). The trial court was not required to justify its imposition of a mandatory sentence under the sentencing guidelines.
    The second prong focuses on the constitutional determination of whether the sentence imposed is too severe in light of the particular defendant and circumstances of the case. Barbain , 2015-0404 at p. 29, 179 So.3d at 787-88. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276, 1280-81 (La. 1993). Furthermore, a sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467, p. 11 (La. 1/15/02), 805 So.2d 166, 174.
    Courts start with the presumption that the mandatory sentence is constitutional. State v. Johnson , 1997-1906, pp. 7 (La. 3/4/98), 709 So.2d 672, 676. A defendant must rebut this presumption with clear and convincing proof that he is exceptional such that the legislature failed to assign a sentence meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Id. , 1997-1906, p. 8, 709 So.2d at 676. A rebuttal results in a downward departure from the mandatory sentence. Mr. Lambert has failed to demonstrate by clear and convincing evidence that he was entitled to a downward departure of the mandatory life sentence for aggravated rape. Courts have consistently rejected the assertion that the mandatory life sentence for aggravated rape is excessive punishment under the Louisiana Constitution. Barbain , 2015-0404 at pp. 30-31, 179 So.3d at 788 ; State v. Foley , 456 So.2d 979, 982-83 (La. 1984) ("[a]ggravated rape deserves a harsh penalty [as] it is one of the most violent felonies a person can commit"); Edwards v. Butler , 882 F.2d 160, 166-67 (5th Cir. 1989). Mr. Lambert argues his advanced age, sixty-five at the time of resentencing, and the fact that his previous convictions were for non-violent crimes should be taken into consideration. However, this Court has consistently refused to consider a defendant's age and first-time offender status as exceptional circumstances when the crime committed is violent in nature. State v. Hunter , 2018-0206, p. 16 (La.App. 4 Cir. 8/22/18), 252 So.3d 1053, 1065. Mr. Lambert's motion to reconsider sentence, filed immediately after resentencing, does not articulate any factual basis for a downward departure under Dorthey . Nor did Mr. Lambert or his counsel make an oral argument regarding any exceptional circumstances at the hearing prior to the trial court's resentencing. Consequently, we find no error in the trial court's determination that no factual grounds exist under Dorthey to reconsider the sentences. Thus, this assignment of error is without merit.
    PRO SE WRIT: ILLEGAL SENTENCE
    Relying on our Supreme Court's holding in State ex rel. Esteen v. State , 2016-0949 (La. 1/30/18), 239 So.3d 233, and La. R.S. 15:308, Mr. Lambert argues that he is entitled to resentencing on his enhanced sentence of life imprisonment for the charge of aggravated burglary. He contends the other offenses used to enhance his sentence (theft and possession of cocaine) could no longer be used under the current habitual offender statute. See La. R.S. 15:529.1. The trial court acknowledged that Mr. Lambert was "superficially"
    correct. Nonetheless, it concluded that, in light of the resentencing to life imprisonment on the charge of aggravated rape, Mr. Lambert's circumstances would not be ameliorated by retroactive application of the habitual offender statute. We agree. As we have affirmed Mr. Lambert's resentencing, the ameliorative requirements of La. R.S. 308(B) are not met.
    DECREE
    For the foregoing reasons we affirm the trial court's denial of Mr. Lambert's motion to quash, motion for discharge and motion to reconsider sentence. Accordingly, we affirm the sentences imposed on resentencing for Mr. Lambert's convictions of aggravate rape and aggravated crime against nature. We also deny his consolidated pro se writ because his circumstances would not be ameliorated given our disposition of his appeal.
    SENTENCES AFFIRMED; WRIT DENIED

      The underlying crimes occurred during a break-in of the victim's home. Mr. Lambert, wielding a hammer, raped the victim over the course of two hours under the threat that he would kill her if she did not comply. State v. Lambert , 1998-0730, pp. 2-6 (La.App. 4 Cir. 11/17/99), 749 So.2d 739, 745-47, writ denied , 781 So.2d 1258 (La. 1/26/01).

      Per the 1966 Official Revision Comment (d) to La. C.Cr.P. art. 874, the article calls for relief by discretionary supervisory writs, rather than a right of appeal. The comment emphasizes the purpose of the statute is to avoid clogging the docket with "frivolous appeals."

      It has been suggested that the appropriate remedy to a speedy sentencing violation is the imposition of the minimum possible sentence. Kristin Saetveit, Beyond Pollard: Applying the Sixth Amendment Speedy Trial Right to Sentencing , 68 Stan. L. Rev. 481, 504 ("at sentencing, a defendant's freedom is no longer on the table; his best case scenario has instead become the minimum sentence available for his conviction"). As discussed infra , this notion is implicit in Louisiana's jurisprudence requiring a showing of prejudice to the defendant. There can be no prejudice where resentencing will result in the same mandatory sentence.

      In Pollard v. United States , 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the United States Supreme Court assumed arguendo that the Sixth Amendment right to a speedy trial encompassed a right to speedy sentencing. The Court applied a series of factors enumerated in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) - used in determining speedy trial violations - to delays in sentencing. Our Supreme Court, emphasizing Pollard did not directly address whether the Sixth Amendment encompasses a right to speedy sentencing, held that it does not. Johnson , 363 So.2d at 460-61. Johnson focused solely on prejudice and did not address the remaining Barker factors. Later opinions of our Supreme Court, dealing with delays in habitual offender enhancement proceedings, have weighed the Barker factors. See, e.g., State v. Muhammad , 2003-2991, pp. 14-15 (La. 5/25/04), 875 So.2d 45, 55 ("[w]hile these factors are neither definitive nor dispositive in the context of a habitual offender proceeding, they are instructive"). The factors, aside from prejudice to the defendant, include the length of the delay, the reasons for the delay, and the accused's assertion of his right. Id. (citing Barker , 407 U.S. at 531-32, 92 S.Ct. 2182 ). However, Johnson and its progeny dictate that prejudice to the defendant is the controlling factor. The United States Supreme Court would later directly address the question left open in Pollard by holding that the Sixth Amendment right to a speedy trial does not extend beyond conviction. Betterman , 136 S.Ct. at 1618. The majority of justices declined to speculate whether the Barker factors should be used to consider due process concerns over delayed sentencing. See id. (Thomas, J. with whom Alito, J. joins, concurring). The majority opinion (authored by Justice Ginsburg) also expressed doubt as to whether the remedy for speedy trial violations - dismissal of the charges - would be appropriate in the delayed sentencing context: "It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions." Id. at 1615 (citing Bozza v. United States , 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947) ("an error in passing the sentence" does not permit a convicted defendant "to escape punishment altogether") ). Johnson 's requirement of a showing of prejudice prevents such windfalls.

      The Fifth Circuit has reached the same result by applying Johnson in cases with similar circumstances. See State v. Sims , 2009-0509, pp. 5-6 (La.App. 5 Cir. 2/12/10), 33 So.3d 340, 343-44 ; State v. Girod , 2004-0854, pp. 15-16 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 654-55 ; State v. Robinson , 2009-0104, p. 7 (La.App. 5 Cir. 7/28/09), 19 So.3d 1206, 1210.

      As the sentences run concurrently and the trial court gave Mr. Lambert credit for time already served, the excessive sentence claim in relation to the aggravated crime against nature is moot.

      Similarly, in holding that a death sentence for rape was excessive punishment, the United States Supreme Court still opined that "[s]hort of homicide, [rape] is the ultimate violation of self." Coker v. Georgia , 433 U.S. 584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

      The trial court also noted the State argued Mr. Lambert was convicted of two other felonies (aggravated battery and armed robbery) that would be available for a reconstructed multiple bill.

   LOBRANO, J. CONCURS IN THE RESULT.