author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Ladray BIAS, Jr.
    18-665 consolidated with 18-268
    Court of Appeal of Louisiana, Third Circuit.
    February 6, 2019
    John F. DeRosier, District Attorney, Fourteenth Judicial District Court, Daniel Vermaelen, Elizabeth B. Hollins, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, P. O. Box 1641, Lake Charles, LA 70602, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Ladray Bias, Jr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

Defendant, Ladray Bias, Jr., was charged with the attempted second degree murder of the victim, Brittany Dionne Watson, in violation of La.R.S. 14:27 and 14:30.1, on September 8, 2016. He was found guilty as charged on June 15, 2017. The trial court sentenced him to serve forty years at hard labor with credit for time served on August 21, 2017. Defendant filed a motion to reconsider his sentence, and the trial court denied it on September 11, 2017.

On June 26, 2017, the State charged Defendant as a second felony offender pursuant to La.R.S. 15:529.1. The trial court vacated Defendant's sentence on November 29, 2017, adjudicated him a second felony offender, and resentenced him to serve seventy years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant filed a motion to reconsider his habitual offender sentence, contending the original forty-year sentence was appropriate. The trial judge denied the motion on December 13, 2017. Defendant now seeks review of his conviction for attempted second degree murder and of his multiple offender sentence.

We addressed Defendant's first assignment of error, alleging insufficient evidence for a conviction, in our opinion in docket number 18-268. We address the second assignment of error, alleging an excessive sentence, in this opinion in the present docket number, 18-665, the appeal taken after Defendant's habitual offender adjudication and resentencing.

FACTS:

Defendant stabbed the victim four times in her head, neck, chest, and back during an argument on July 29, 2016.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant alleges the evidence was insufficient to convict him of attempted second degree murder. Because that issue pertained to his underlying conviction, we discussed the issue in docket number 18-268, the appeal of that conviction.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends his sentence of seventy years at hard labor without benefit of probation, parole, or suspension of sentence is constitutionally excessive. This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, section 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case."

State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). "While the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant." State v. Smith , 433 So.2d 688, 698 (La.1983) (citing State v. Ray , 423 So.2d 1116 (La.1982) ; State v. Keeney , 422 So.2d 1144 (La.1982) ; State v. Duncan , 420 So.2d 1105 (La.1982) ).

"The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D). The trial judge's failure to comply with Article 894.1 does not render a sentence invalid:

[T]he goal of this article is articulation of the factual basis for a sentence, "not rigid or mechanical compliance with its provisions." State v. Lanclos, 419 So.2d 475, 478 (La.1982). Accordingly, if "the record clearly shows an adequate factual basis for the sentence imposed[,] ... remand is unnecessary, even where there has not been full compliance with Article 894.1." Id.

State v. v. H.A., Sr. , 10-95, pp. 25-26 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 50.

Defendant was previously convicted of theft of a motor vehicle and unauthorized entry of an inhabited dwelling on October 14, 2010. The trial court deferred sentencing and placed Defendant on supervised probation for five years subject to special conditions. The trial court ordered Defendant to spend three months in the parish jail and imposed further special conditions on August 10, 2011, after Defendant was charged with domestic abuse battery and simple battery. Defendant came before the trial court again on March 28, 2012, when the court continued his probation with the special condition that he serve seventy-five days in the parish jail on each of the probation violations for theft of a motor vehicle and unauthorized entry of an inhabited dwelling. On June 20, 2012, the trial court revoked Defendant's probation and sentenced him to serve six years at hard labor for unauthorized entry of an inhabited dwelling and to serve eight years at hard labor for theft of a motor vehicle, with the sentences to run concurrently. Defendant became eligible for parole on December 14, 2014.

At a hearing on November 29, 2017, expert witness testimony showed the fingerprints associated with the convictions for theft of a motor vehicle and for unauthorized entry of an inhabited dwelling were those of Defendant. The trial court adjudicated Defendant as a second felony offender. Although Defendant's counsel asked the trial court to maintain his habitual offender sentence at forty years, the trial court vacated the prior forty-year sentence and imposed a sentence of seventy years without benefit of probation, parole, or suspension of sentence.

The sentencing range for attempted second degree murder is ten to fifty years. La.R.S. 14:27, 14:30.1. On November 1, 2017, the sentencing range for second offenders changed. Prior to that date, the sentencing range was "for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction." La.R.S. 15:529.1(A)(1) (amended 2017). Thus, the sentencing range for attempted second degree murder was twenty-five to one hundred years. After November 1, 2017, the sentencing range became "for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction." La.R.S. 15:529.1(A)(1). Thus, the sentencing range became sixteen and two-thirds years to one hundred years. The statutory change had "prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts No. 282, § 2. Defendant's adjudication and habitual offender sentence have not yet become final. See La.Code Crim.P. art. 922.

At the November 29, 2017 adjudication hearing, the parties and the trial judge discussed the proper lower end of the sentencing range for a second felony offender. Ultimately, the trial court applied a sentencing range of twenty-five to one hundred years, the applicable range under La.R.S. 15:529.1(A)(1) prior to November 1, 2017.

Our supreme court addressed a similar situation in State v. Williams , 17-1753, p. 1 (La. 6/15/18), 245 So.3d 1042, 1042 (per curiam):

Defendant was found guilty as charged of armed robbery with a firearm, La. R.S. 14:64 and 14:64.3, second degree kidnapping, La. R.S. 14:44.1, and attempted second degree murder, La. R.S. 14:27 and 14:30.1. He was adjudicated as a third-felony offender, and his armed robbery sentence was enhanced under the Habitual Offender law.
La. R.S. 15:529.1. Defendant's appeal was pending when the Legislature amended the Habitual Offender law with 2017 La. Acts 282. The amendment substantially reduced the sentencing range for a third-felony offender like defendant and further provided, "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." Defendant seeks to be resentenced under the amendment, and the State concedes defendant is entitled to be resentenced in accordance with it because his conviction will become final after November 1, 2017. Accordingly, we grant defendant's application in part to vacate his enhanced recidivist sentence for armed robbery, and we remand for resentencing for this offense in accordance with 2017 La. Acts 282.

This court reached the same conclusion in State v. Purvis , 17-1013, p. 9 (La.App. 3 Cir. 4/18/18), 244 So.3d 496, 502 :

In the instant matter, Defendant ... was sentenced prior to November 1, 2017. However, Defendant's aggravated arson conviction is not yet final, and will become so after November 1, 2017. As such, we find that the language of Section 2 of Acts 257 and 282, applying the amended provisions of La.R.S. 15:529.1 to convictions that "became final on or after November 1, 2017," is applicable to Defendant. Accordingly, we vacate the trial court's ruling.

As in Williams , 245 So.3d 1042, and Purvis , 244 So.3d 496, Defendant's attempted second degree murder conviction will become final after November 1, 2017. However, Act 542 of the 2018 Louisiana Legislature added La.R.S. 15:529.1(K), which provides, in pertinent part, "the court shall apply the provisions of [ La.R.S. 15:529.1 ] that were in effect on the date that the defendant's instant offense was committed.' " This court has not yet addressed whether that provision is retroactive. The first and second circuits, however, have determined it is.

In State v. Edden , 52,288 (La.App. 2 Cir. 11/14/18), 259 So.3d 1196, the defendant was subject to a ten to thirty-year sentence for his underlying offense. When he was adjudicated as a second felony offender, he argued the 2017 amendments to La.R.S. 15:529.1(A)(1) reduced the range of his enhanced sentence because his conviction became final after November 1, 2017. The second circuit, however, found the 2018 enactment of La.R.S. 15:529.1(K) was "a curative provision." Edden , at p. 9. The court determined the amendment was procedural, and the law in effect on the date of the underlying offense applied.

Likewise, in State v. Cagler , 18-427 (La.App. 1 Cir. 11/7/18) (unpublished opinion), the first circuit noted Williams , 245 So.3d 1042, and Purvis , 244 So.3d 496. However, the court considered the decisions in those cases "effectively abrogated by the 2018 enactment of La.R.S. 15:529.1(K)(1)." Cagler , at 24 n.6.

We agree with the first and second circuits and find La.R.S. 15:529.1(K) applies retroactively to this case. In that event, the applicable sentencing range would be twenty-five to one hundred years. Moreover, we do not find the sentence to be shocking or making no meaningful contribution to acceptable penal goals. The trial court was well within the parameters of the sentence for the crime committed under the applicable law. Accordingly, we affirm Defendant's sentence.

DECREE:

This court finds that La.R.S. 15:529.1(K) applies retroactively, and the trial court correctly applied the sentencing range of twenty-five to one hundred years.

Further, we find no merit to the contention that Defendant's sentence is excessive. Thus, Defendant's sentence is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    James C. SIZEMORE v. REILLY-BENTON COMPANY, INC., et al
    NO. 2018-CA-0826
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 6, 2019
    Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, LANDRY & SWARR, LLC, 1010 Common Street, Suite 2050, New Orleans, LA 70112, Renee M. Melancon, Dean Omar & Branham, LLC, 302 N. Market Street, Suite 300, Dallas, TX 75202, COUNSEL FOR PLAINTIFFS/APPELLEES
    Kaye N. Courington, James M. Matherne, COURINGTON, KIEFER & SOMMERS, LLC, 616 Girod Street, Suite 2105, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
    Judge Rosemary Ledet This is a mesothelioma case. The narrow issue presented is whether the trial court abused its discretion in granting the plaintiff's motion to dismiss one of multiple defendants without prejudice, mooting the dismissed defendant's pending motion for summary judgment. Finding no abuse of discretion, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    In June 2016, James Sizemore, a South Carolina resident, commenced this suit for damages against multiple defendants. Mr. Sizemore averred that he was diagnosed with mesothelioma due to his work-related exposure to asbestos from 1962 to 2009. During that period, he worked as a welder, pipefitter, and boilermaker at numerous industrial facilities, including shipyards, paper mills, and power plants. The facilities at which he worked were located in numerous states, including Louisiana and South Carolina. In July 2016, Mr. Sizemore filed a supplemental and amended petition adding Viking Pump, Inc. as a defendant.
    Because Mr. Sizemore's asbestos exposures from certain defendants occurred exclusively in other states, certain defendants moved for dismissal for lack of personal jurisdiction and certain defendants moved for dismissal based on forum non conveniens. In response, the plaintiff dismissed those defendants and filed a second suit in South Carolina state court in 2016 (the "South Carolina Case"). Viking was not one of the defendants who moved for dismissal based on lack of jurisdiction and forum non conveniens .
    After answering the petition, Viking filed three motions for summary judgment. It filed its first motion in July 2017; it filed renewed motions in September 2017 and in April 2018. Viking's trio of motions was based on lack of product identification. Citing Lucas v. Hopeman Bros., Inc ., 10-1037 (La. App. 4 Cir. 2/16/11), 60 So.3d 690, Viking contended that it was entitled to summary judgment because jobsite-only circumstantial evidence is insufficient to preclude summary judgment.
    On April 17, 2018, the plaintiff's counsel emailed Viking's counsel a proposed joint motion to dismiss without prejudice. According to Viking, it was given no notice that a week earlier, on April 9, 2018, the plaintiff amended his petition in the South Carolina Case to add Viking as a defendant. On April 23, 2018, Viking filed an "Objection to Dismissal without Prejudice." In support, Viking characterized any forthcoming motion to dismiss without prejudice as "a veiled, eleventh hour attempt to transfer [the plaintiff's] claims against Viking Pump to South Carolina and [thus] avoid a hearing on Viking Pump's pending Motion for Summary Judgment." Viking requested that its motion for summary judgment be granted and that the plaintiff's claims against it be dismissed with prejudice.
    In response, the plaintiff filed a "Reply to Viking Pump, Inc.'s Objection to Dismissal without Prejudice." With its reply memorandum, the plaintiff filed a rule to show cause. The trial court set the plaintiff's rule to show cause for a hearing on July 6, 2018-the same date that Viking's motion for summary judgment was set for hearing. In its reply memorandum, the plaintiff contended that a voluntary dismissal without prejudice of all his claims against Viking was proper and necessary.
    On June 28, 2018, Viking filed an "Opposition to Plaintiff's Motion to Dismiss without Prejudice." At the July 6, 2018 hearing, the trial court granted the plaintiff's motion to dismiss without prejudice and denied Viking's motion for summary judgment as moot. This appeal followed.
    DISCUSSION
    Viking contends, as it did in the trial court, that the plaintiff's motion to dismiss without prejudice should not have been granted for the following two reasons: (i) the motion was untimely filed, given the trial court's scheduling order; and (ii) the purpose of the motion was to transfer the plaintiff's claims against Viking to the South Carolina Case and to avoid a hearing on Viking's pending summary judgment motion. An abuse of discretion standard applies in reviewing the trial court's ruling on both issues. We separately address each issue.
    Violation of Pre-Trial Scheduling Order
    Addressing modifications of pre-trial scheduling orders, this court in McDuffie observed as follows:
    The matter of whether to modify the pre-trial order is solely within the discretion of the trial judge. Absent an abuse of discretion, the decision of the trial judge will be upheld. In deciding whether to modify a pretrial order, a trial court must be ever mindful of the fact that the objective of our legal system is to render justice between the litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities.
    00-2779, p. 3, 781 So.2d at 631. The jurisprudence also has observed that " La.C.C.P. Art. 1551 authorizes the trial court to modify pre-trial orders to prevent 'manifest injustice' " and that " La. C.C.P. Art. 1551 does not authorize severe limitation of a party's rights for the technical, though justifiable, violation of a pretrial order." Neff v. Rose , 546 So.2d 480, 483 (La. App. 4th Cir. 1989).

      In June 2017, Mr. Sizemore died of mesothelioma. Thereafter, his four heirs substituted themselves as proper-party plaintiffs. For ease of discussion, we refer to the current plaintiffs in this opinion singularly as the plaintiff.

      In the petitions, the plaintiff named two categories of asbestos-related defendants: (i) asbestos miners, manufacturers, sellers, suppliers, and distributors; and (ii) employers premises owners, and executive officers. Viking was added under the first category-asbestos miners, manufacturers, sellers, suppliers, and distributors.

      According to Viking, one of the co-defendants, Huntington Ingalls Inc. (Avondale Shipyard), filed a cross-claim against all the defendants, including Viking. On July 3, 2018, the trial court signed an order dismissing the plaintiff's claims against Huntington Ingalls with prejudice and "thereby extinguishing all third party demands, and cross-claims brought by Defendant Huntington Ingalls," which included a dismissal of the cross-claim against Viking.

      At this point, the plaintiff had not filed with the trial court a motion to dismiss without prejudice.

      Although the plaintiff never filed a pleading labeled "Motion to Dismiss Without Prejudice," the plaintiff's "Reply to Defendant Viking Pump's Objection to Dismissal Without Prejudice" was, in essence, a motion to dismiss without prejudice. See Adams v. First Nat. Bank of Commerce , 93-2346, 94-0486, p. 4 (La. App. 4 Cir. 9/29/94), 644 So.2d 219, 223 (observing that "courts look beyond mere headings and terminology used on or in pleadings to determine the circumstances and the true nature of the suit").

      The judgment granting the plaintiff's motion to dismiss Viking without prejudice is a final, appealable judgment. Cf . Frank L. Maraist, 1 La. Civ. L. Treatise, Civil Procedure § 10:3, n. 9 (2d ed. 2018) (observing that "[a] judgment of involuntary dismissal without prejudice is a final, appealable judgment" and citing Dusenbery, as Tutrix of Dusenberg v. McMoRan Exploration Co ., 425 So.2d 249 (La. App. 1st Cir. 1982) ; Rapides Sav. & Loan Ass'n v. Lakeview Development Corp ., 326 So.2d 511 (La. App. 3d Cir. 1976) ; Lee v. Carruth , 217 So.2d 718 (La. App. 3d Cir. 1969) ); Yamaha Motor Corp., U.S.A. v. Bonfanti Indus., Inc., 589 So.2d 575, 579, n. 7 (La. App. 1st Cir. 1991) (citing Dusenbery , supra ) (observing that "[i]f a party voluntarily obtains a judgment of dismissal without prejudice there is no right to an appeal") (emphasis in original).

      On appeal, Viking assigns the following two errors:
      1. Viking Pump respectfully asserts that it was entitled to summary judgment dismissing plaintiffs' claims with prejudice and that the Trial Court's decision to dismiss plaintiff's claims without prejudice after two years of litigation on the last hearing date before trial allowing plaintiff to avoid summary judgment in Louisiana and move their claims against Viking Pump to South Carolina was an abuse of discretion.
      2. The Trial Court should have granted Viking Pump's Motion for Summary Judgment dismissing plaintiffs' claims with prejudice.

      See McDuffie v. ACandS, Inc ., 00-2779, pp. 4-6 (La. App. 4 Cir. 2/14/01), 781 So.2d 628, 632-33 (observing that an abuse of discretion standard applies in reviewing a trial court's decision regarding the modification of pre-trial scheduling orders); Botanica Prop. Partners, L.L.C. v. Hodges Const. Co., Inc ., 04-1086, p. 6 (La. App. 5 Cir. 2/15/05), 897 So.2d 756, 759 (observing that "[a] trial court has wide discretion to grant a dismissal without prejudice after the defendant has appeared, and its judgment will not be set aside absent a clear abuse of that discretion").

      La. C.C.P. art. 1551(B) provides:
      The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

   Viking points out that the plaintiff filed the motion to dismiss forty-five days late under the trial court's scheduling order, which provides as follows:

The Original of all motions, including discovery related motions, dispositive motions, exceptions, and Daubert motions shall be filled no later than 60 days prior to the rule date. The last rule date before trial is Friday, June 29, 2018.

Viking thus contends the motion should have been denied as untimely. The plaintiff counters that the trial court, despite being aware that the motion to dismiss was filed after the deadline in the scheduling order, found it had the discretion to grant the motion. At the hearing, Viking's counsel informed the trial court that the plaintiff had filed the motion to dismiss forty-five days late. The trial court, nonetheless, found that it had the discretion to entertain the motion. We agree.

Motion to Dismiss without Prejudice

After the defendant has made an appearance, as here, a plaintiff's right to dismiss rests within the sound discretion of the court. La. C.C.P. art. 1671, Comment (b). Nonetheless, the jurisprudence has observed that La. C.C.P. art. 1671 does not grant a trial judge "unbridled discretion" and has recognized a rule that "a trial judge cannot dismiss a suit without prejudice if substantive rights acquired by the defendant would thereby be lost or if the dismissal would deprive the defendant of a just defense." Oliver v. Davis , 95-1841, p. 4 (La. App. 1 Cir. 8/12/96), 679 So.2d 462, 464. For the rule to apply, "[t]he rights affected by dismissal clearly must be substantive rights, not procedural rights of party litigants." Northshore Reg'l Med. Ctr. v. Par. of St. Tammany , 96-0717, p. 5, n. 4 (La. App. 1 Cir. 12/20/96), 685 So.2d 614, 616 (citing City of New Orleans v. New Orleans Canal, Inc ., 173 So.2d 43, 45 (La. App. 4th Cir. 1965) ). In determining whether the rule applies, "[e]ach case has to be examined on its particular facts." Sanders v. Travelers Ins. Co ., 271 So.2d 298, 299 (La. App. 3d Cir. 1972) ; Melancon v. Swift Agr. Chem. Corp ., 289 So.2d 578, 580 (La. App. 3d Cir. 1974) (citing Sanders , supra ).

One commentator has noted that "[t]he rule may be illusory, however, because rarely, if ever, will a dismissal without prejudice affect acquired rights or deprive the defendant of a defense. The decisions indicate that the court should refuse to dismiss without prejudice if such a dismissal may result in a significant loss of the ct suit." Frank L. Maraist, 1 LA. CIVIL LAW TREATISE § 10:3 (2d ed. 2018). The decisions also indicate the following guidance in determining whether a dismissal without prejudice would constitute an abuse of discretion:

The injury which would thus be occasioned to the defendant must be of a character that deprives him or her of some substantive rights concerning defenses not available in a second suit or that may be endangered by the dismissal, and not the mere ordinary inconveniences of double litigation which in the eyes of the law would be compensated by costs. Moreover, the mere fact that the plaintiff intends to institute, or in fact institutes, another suit on the same cause of action is not a sufficient ground for a denial of his or her motion to discontinue an action.

27 C.J.S. Dismissal and Nonsuit § 27 (citing Betz v. Hearin Tank Lines, Inc. , 75 So.2d 356 (La. App. 1st Cir. 1954) ; and Sanders , supra ).

The gist of Viking's argument is that the trial court abused its discretion in granting the motion to dismiss rather than ruling on its summary judgment motion. Viking emphasizes that it has engaged in two years of extensive, expedited discovery and contends that it is entitled to a dismissal with prejudice on its summary judgment motion. The plaintiff counters that "all of Mr. Sizemore's exposures to asbestos from Viking's pumps occurred in South Carolina, where an action is pending against other defendants" and that the discovery that has been taken in this case may be used in the South Carolina Case. The plaintiff also contends that judicial efficiency supports the trial court's ruling granting his motion.

Agreeing with the plaintiff, the trial court, at the hearing, questioned Viking's counsel whether the discovery that Viking had done in this case could be used in the South Carolina Case. Viking's counsel answered in the affirmative but argued that Viking was entitled to a dismissal with prejudice based on its motion for summary judgment. The trial court disagreed.

On appeal, Viking again contends that the trial court was required to grant its motion for summary judgment under La. C.C.P. art. 966 and that the trial court "had no discretion to disregard summary judgment in favor of dismissal without prejudice." We disagree. Contrary to Viking's contention, the trial court had the discretion to grant the motion to dismiss absent evidence that Viking would have been deprived a just defense or would have lost substantive rights. Viking failed to establish either.

Summarizing, given the discovery Viking has done in this case can be used in the South Carolina Case coupled with Viking's failure to establish that as a result of the dismissal it would be deprived of a just defense or lose substantive rights, we cannot conclude the trial court abused its wide discretion in granting the motion to dismiss without prejudice.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      Viking further points out that the motion to dismiss (rule to show cause), filed on June 7, 2018, was untimely because it should have been filed no later than April 30, 2018. Viking still further points out that "[e]ven if the continued, last rule date of July 6, 2018 is used to calculate the motion due date as May 7, 2018, plaintiffs' motion would still be 30 days late."

      La. C.C.P. art. 1671 provides as follows:
      A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

      See also Botanica , 04-1086, p. 6, 897 So.2d at 759 (observing that "[a]n abuse of discretion has been found in dismissals without prejudice where the substantive rights of the defendant would be lost or where the defendant would be deprived of a just defense"); Kennison v. BLR Constr. Cos., L.L.C ., 07-743, p. 2 (La. App. 3 Cir. 12/5/07), 971 So.2d 1232, 1233-34 (same).

      Given our holding, we pretermit consideration of the denial of Viking's motion for summary judgment as moot.


author: Judge Regina Bartholomew-Woods

text:
    NEW ORLEANS BULLDOG SOCIETY v. LOUISIANA SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, et al
    NO. 2018-CA-0519
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 6, 2019
    Vincent J. Booth, BOOTH & BOOTH, APLC, 138 North Cortez Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Timothy M. Brinks, Christopher James Kane, Jaimme' A. Collins, ADAMS & REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

New Orleans Bulldog Society ("NOBR") appeals the judgment of the trial court, granting, in part, and denying, in part, its Motion to Assess Attorney's Fees and Penalties, and granting, in part, and denying, in part, Louisiana Society for the Prevention of Cruelty to Animals ("LSPCA") Motion for Declaratory Judgment. The trial court awarded NOBR $ 5,000.00 in attorney's fees and $ 1,687.50 in costs, and denied NOBR's request for penalties. For the reasons that follow, we amend, in part, and affirm as amended, the judgment rendered by the trial court.

FACTS AND PROCEDURAL BACKGROUND

NOBR is a Louisiana nonprofit corporation dedicated to the rescue and advocacy of dog welfare in the Greater New Orleans area. In an effort to evaluate how to best limit the number of dogs euthanized annually, NOBR sought related information from LSPCA. LSPCA is a private non-profit organization that is dedicated to the welfare of animals in Louisiana, and is classified by the Internal Revenue Service as a private charitable 501(c)(3). LSPCA maintains a Cooperative Endeavor Agreement ("CEA") with the City of New Orleans ("the City") to provide animal control services, as required by Chapter 18 of the City of New Orleans Code of Ordinances.

Because of LSPCA's CEA with the City, NOBR submitted an itemized public records request to the City seeking information regarding the dogs euthanized by LSPCA, of which a copy was submitted to LSPCA. Its request was as follows:

Requests 1-32 sought specific information as to the LSPCA definitions, policies, procedures, and outcomes related to the evaluation, adoption, and/or euthanasia of surrendered/stray animals in control of LSPCA; Requests 33-34 related specifically to an [sic] Cane Corso named Leatrice euthanized by the LSPCA in December 2014; Request 35 requested documents related to the "staff hours spent by LSPCA Animal Control Officers travelling, waiting, and appearing in court in Orleans Parish; and Requests 36-37 sought documents and emails regarding the Bulldog Rescue's "Animal Court" proposal to streamline animal-related cases before the municipal court in New Orleans.

New Orleans Bulldog Society v. LSPCA, 2015-1351, p. 2 (La.App. 4 Cir. 9/7/16), 200 So.3d 996, 998.

The City Attorney's Office responded to the request stating that the City was not the custodian of the requested records, and that such request should be sent directly to LSPCA. Accordingly, NOBR submitted its itemized public records request directly to LSPCA. LSPCA responded to the request asserting it was not a "public body;" therefore, it was not subject to the Public Records Law ("PRL"). Ann Zorilla ("Ms. Zorilla"), Chief Executive Officer of LSPCA, asserted that the only required reporting was delineated in the CEA between LSPCA and the City. Ms. Zorilla also asserted LSPCA had fulfilled the reporting requirements, and the reports were available through the City Attorney's Office.

In response to LSPCA's contest, NOBR filed a petition for a writ of mandamus in the trial court, seeking declaratory judgment and injunctive relief pursuant to the PRL. LSPCA, in return, filed exceptions of unauthorized use of summary proceedings and no cause of action, requesting NOBR's petition be dismissed with prejudice. LSPCA supported the exceptions with an affidavit executed by Ms. Zorilla and a copy of the CEA.

The trial court orally granted LSPCA's motion to dismiss the NOBR's petition for writ of mandamus. The trial court found that LSPCA was not a quasi-public entity under the PRL and, even assuming that LSPCA was a quasi-public entity, it had fulfilled all reporting obligations under the PRL by complying with the requirements delineated in the CEA.

NOBR subsequently filed a devolutive appeal in this Court. This Court reversed the trial court, holding that LSPCA was subject to the PRL. This Court reasoned that LSPCA acted as an "instrumentality to a municipality" in performing certain mandated municipal services as outlined in the CEA. New Orleans Bulldog Society , 2015-1351, p.10, 200 So.3d at 1002. This Court further stated the PRL cannot be circumscribed by contract, and LSPCA's "limited contractual reporting requirements in the CEA is not equivalent of a 'public record' as defined [sic] La. Rev.Stat. 44:1(A)(2)(a), and, as such, the LSPCA's entity's compliance with its contractual reporting requirement to the City does not satisfy its obligations under the Public Records Law;" and LSPCA "has offered no reason (beyond its failed argument that it is not subject to the Public Records Law) for refusing to provide public access to its records." Id. , 2015-1351, pp. 11-12, 200 So.3d at 1002-03.

LSPCA then filed a Writ of Certiorari to the Louisiana Supreme Court, wherein the Louisiana Supreme Court affirmed this Court, finding that LSPCA acts as an instrumentality of a municipality. The Louisiana Supreme Court reasoned that LSPCA acts "under the color of City authority through its enforcement of Chapter 18 infractions, issuance of citations, and appearance in court on related matters of animal control." New Orleans Bulldog Society v.LSPCA, 2016-1809, p. 8 (La. 5/3/17), 222 So.3d 679, 685. The Louisiana Supreme Court affirmed this Court in finding that LSPCA's contractual reporting requirements did not constitute compliance with the PRL. New Orleans Bulldog Society , 2016-1809, p. 12, 222 So.3d at 687. However, the Louisiana Supreme Court held that LSPCA's responses should be limited only to documents that pertain to "LSPCA's functions, duties, and responsibilities to enforce Chapter 18 of the Municipal Code as outlined in the CEA." Id. , 2016-1809, p. 13, 222 So.3d at 688. The matter was remanded to the trial court for a determination of which documents satisfy this requirement. Id. , 2016-1809, p. 14, 222 So.3d at 688.

Upon remand, counsel for the parties entered into discussions regarding production of the public records. NOBR filed a motion for status conference with the trial court to determine the next steps pursuant to the Louisiana Supreme Court's ruling. A telephone status conference was held, at which time the trial court ordered LSPCA to produce all uncontested documents. Accordingly, LSPCA produced documents responsive to NOBR's public records request. In its response, LSPCA raised objections to several of the requests. LSPCA objected to some of the requests based upon veterinary privilege. It also raised objections that some requests were unrelated to LSPCA's duties and responsibilities, as outlined in the CEA with the City, and that the specificity of other requests were unsearchable fields within its database and reports. Despite these objections, LSPCA stated it would produce the documents if the trial court issued a protective order. NOBR, however, provided a letter to LSPCA stating it accepted the responses to its public records request; thus, LSPCA's objections were never litigated. In its acceptance letter, NOBR also provided LSPCA with all relevant billing information regarding attorney's fees associated with the public records requests and the ensuing litigation. LSPCA filed a Motion for Declaratory Judgment asking the trial court to make a determination regarding attorney's fees. NOBR, in response, filed a Motion to Assess Fees, Costs, and Penalties, and submitted a statement for a total of sum of $ 24,181.25, which represented $ 22,493.75 in attorney's fees and $ 1,687.50 in court costs.

A hearing was held in the trial court on the issue of attorney's fees. The trial court ruled that NOBR prevailed, in part, and awarded $ 5,000.00 in attorney's fees and $ 1,687.50 in costs. In the judgment, the trial court cited the Louisiana Supreme Court's reasoning that LSPCA is required to disclose all documents relevant to its duties and responsibilities outlined in the CEA with the City. The trial court also referenced a "white paper" in finding that the case was an expansion of the PRL to private entities that previously may not have been considered public entities under the law. The trial court alluded to factors enumerated by the Louisiana Supreme Court in State, Department of Transportation and Development v. Williamson , 597 So.2d 439 (La. 1992), to determine a reasonable award of attorney's fees. The trial court also reviewed the itemized time sheets and statement of costs submitted by NOBR. Following the judgment, NOBR filed this appeal in which it asserts four assignments of error; we, however, will only address three of the assignments of error.

STANDARD OF REVIEW

Trial courts are vested with great discretion in determining an award of attorney's fees pursuant to La. R.S. 44:35(D). The Louisiana Supreme Court has established ten factors to be considered in determining the reasonableness of attorney's fees, which will be discussed further below. Williamson , 597 So.2d at 442. This Court provided the appellate standard of review applicable to a determination of the reasonableness of fees in Billieson v. City of New Orleans, 2015-0858, p. 6 (La.App. 4 Cir. 1/27/16), 186 So.3d 786, 790 :

On appellate review of a determination of an attorney fee, we first ensure that the trial judge adequately considered the ten factors and then, if we find that they were adequately considered, we review the award under an abuse-of-discretion standard.

This Court also provided, in Boes Iron Works, Inc. v. Gee Cee Group, Inc. , 2016-0207, p. 8 (La.App. 4 Cir. 11/16/16), 206 So.3d 938, 946, that the exercise of the trial court's discretion will not be reversed unless there is "a showing of clear abuse of discretion." Abuse of discretion generally results when a conclusion is reached "capriciously or in an arbitrary manner." Roper v. City of Baton Rouge/Parish of East Baton Rouge , 2016-1025, p. 28 (La.App. 1 Cir. 3/15/18), 244 So.3d 450, 469.

ANALYSIS

Assignment of Error No. 1

In its first assignment of error, NOBR argues the trial court erred in finding that it only partially prevailed in the lawsuit. The question to be addressed by this Court is whether NOBR prevailed on all issues litigated. We agree that NOBR only prevailed in part.

La. R.S. 44:35(D)(1) provides :

If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

(Emphasis added).

This Court, in Ferguson v. Stephens , 623 So.2d 711 (La.App. 4th Cir. 1993), addressed when a party prevails in full. In Ferguson , the plaintiff filed a mandamus action against the St. Bernard Parish Sheriff's Office ("the Sheriff") seeking to compel production of public records pertaining to its financial records. The trial court found the plaintiff was only partially successful in obtaining the requested information, but also found that the Sheriff acted in good faith in objecting to the public records request and dismissed the Sheriff from the suit. The trial court denied the mandamus action; thus, in its discretion, the trial court denied attorney's fees. This Court reversed this judgment and granted the mandamus action, finding that the plaintiff was fully successful in obtaining all the information requested.

The defendant in Ferguson argued the trial court had discretion to deny an award for attorney's fees because the trial court found the plaintiff only prevailed, in part. The defendant asserted that the plaintiff only prevailed, in part, because the trial court ruled against her on exceptions filed against the Sheriff and Chief Deputy and dismissed them from the suit. This Court found no merit to this argument, reasoning, in part:

However, the object of the plaintiff's suit was access to the public records-the check register. Plaintiff prevailed on that demand and the trial court ordered original defendant Sheriff Stephens to produce the check register. Plaintiff completely prevailed as to the object of her suit and is entitled to attorney's fees and other litigation costs.

Id. , 623 So.2d at 717.

In contrast to Ferguson , in Roper v. City of Baton Rouge , 2016-1025 (La.App. 1 Cir. 3/15/18), 244 So.3d 450, the Court of Appeal First Circuit ("First Circuit") addressed a matter in which a plaintiff only partially prevailed. Roper appealed the trial court's judgment that denied her mandamus action and found that only one defendant acted "arbitrarily or capriciously" in failing to respond to her public records request. She filed a suit against several city officials alleging these officials arbitrarily and capriciously withheld public records she requested. The trial court only awarded the plaintiff attorney's fees against one defendant. The First Circuit affirmed the trial court's decision as it related to the award of attorney's fees. The First Circuit found ample evidence that supported the trial court's discretionary award of attorney's fees against that defendant. Contrarily, the First Circuit found the other defendants generally cooperated with efforts to respond to plaintiff's request. The First Circuit further reasoned that because the plaintiff "prevailed on some, but not all, of her claims, an award of attorney fees was discretionary with the trial court under Subsection 44:35D." Id. , 2016-1025, p. 28, 244 So.3d at 46 . Thus, the Court did not find that the trial court abused its discretion in determining a reasonable award of attorney's fees.

Here, NOBR argues that it prevailed in full because it prevailed on all issues that were litigated before this Court, as well as, the Louisiana Supreme Court; to wit, when it sought to enforce the PRL against LSPCA. NOBR's argument fails because it did not prevail, in full, as to the object of its suit. As provided in Ferguson , a party prevails in full, if successful as to the "object" of its suit. Ferguson , 623 So.2d at 717. While NOBR prevailed in obtaining a ruling that LSPCA was a quasi-public entity subject to the PRL, the "object" of its original suit was to obtain specific documentation from LSPCA, and the Louisiana Supreme Court's ruling limited the scope of production. On remand, the trial court ordered that LSPCA produce all uncontested documents, which LSPCA did while also objecting to certain requests asserting veterinary privilege and objecting to relevancy of certain requests relating to LSPCA's duties and responsibilities delineated in the CEA. To further support its argument, NOBR asserts that these objections are untimely and newly asserted because LSPCA raised these objections after the trial court ordered production. LSPCA, however, argues that it asserted objections to several of NOBR's requests throughout this litigation. LSPCA asserts that it raised objections to the scope of NOBR's requests in its first responsive pleading before the trial court and raised objections to the appropriateness of NOBR's request under the PRL in its appellate brief before this Court, as well as, in its briefs before the Louisiana Supreme Court. Despite these arguments, NOBR acknowledged acceptance of LSPCA's partial production, which precluded a court from reviewing and ruling on the objections. The object in NOBR's suit was access to all of the requested documents. NOBR was not successful in securing a judgment requiring LSPCA to turn over every document requested, only those that were relevant to the LSPCA's "discharge of its duties and responsibilities" as outlined in the CEA with the City. New Orleans Bulldog Society , 2016-1809, p. 14, 222 So.3d at 688. Thus, it cannot be said that NOBR was successful as to the "object" of its suit. Similar to the plaintiff in Roper , NOBR was successful as to some of its claims, but not all. Roper , 2016-1025, p. 28, 244 So.3d at 468. Thus, this Court does not conclude that the trial court erred in finding that NOBR only prevailed in part. Thus, this assignment is without merit.

Assignments of Error No. 2 and 3

NOBR's second and third assignments of error are that the trial court failed to specifically consider the Williamson factors and erred in only awarding NOBR $ 5,000.00 in attorney's fees.

The Louisiana Supreme Court established ten factors to be considered in determining the reasonableness of attorney's fees:

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court's own knowledge.

Williamson , 597 So.2d 439 at 442, (citing State through Department of Transportation and Development v. Jacob , 491 So.2d 138 (La.App. 3d Cir. 1986) ; State v. Ransome , 392 So.2d 490 (La.App. 1st Cir. 1980) ).

LSPCA argues the Williamson factors are inapplicable when a party only prevails in part. When a party prevails, "he [or she] shall be awarded reasonable attorney fees and other costs of litigation." La.R.S. 44:35(D). However, when a party prevails only in part, "the court may in its discretion award him [or her] reasonable attorney fees or an appropriate portion thereof ." Id. (emphasis added). Courts have employed the Williamson factors to serve as a guide in determining the reasonableness of fees, a determination which must be made whether a party prevails in full or in part. Thus, this Court finds it appropriate to apply the Williamson factors in this case even though we have found NOBR prevailed only in part.

The first factor requires this Court to analyze the ultimate result obtained by NOBR. This Court finds that the result obtained was indeed a successful one, albeit only partial. Prior to the institution of this lawsuit, LSPCA denied NOBR's public records request asserting it was not a public body subject to the PRL. However, due to the efforts of NOBR, this matter was litigated and appealed to both this Court, as well as the Louisiana Supreme Court, which rendered rulings making clear the applicability of the PRL.

The second and third factors require this Court to analyze the responsibility incurred by NOBR and the importance of the litigation. The Court of Appeal Fifth Circuit provided that the second factor "has more to do with the responsibility incurred in the litigation ..." Brandner v. Staf-Rath, LLC, 12-62, p. 9 (La.App. 5 Cir. 5/31/12), 102 So.3d 186, 192. Here, NOBR had to prove that LSPCA was subject to the PRL. In its efforts, NOBR litigated the matter before this Court and the Louisiana Supreme Court. NOBR had to present oral arguments before this Court and the Louisiana Supreme Court. Upon remand to the trial court, LSPCA asserted objections to NOBR's request and sought an agreement to limit the scope of documents it was required to produce. NOBR had to file a motion for a status conference in the trial court asking the court to order LSPCA to produce the documents responsive to its request. NOBR was successful in this effort. The trial court did order LSPCA to produce all uncontested documents. Additionally, NOBR recorded a total of 131.75 billable hours. As it relates to the importance of the litigation, it is an undisputed fact that this litigation presented issues that were res nova in Louisiana courts. In turn, this litigation expanded the PRL to encompass private entities that engaged in public functions.

The fourth factor requires considering the amount of money involved, and the seventh factor requires looking at the number of appearances made. NOBR's counsel asserts that it should be awarded $ 22,493.75 in attorney's fees, based on a total of 131.75 hours worked, which was supported by invoices for fees associated with this litigation. Further, NOBR made several court appearances, having presented oral arguments before this Court twice and before the Louisiana Supreme Court. NOBR also presented evidence and arguments at the motion hearing that resulted in the appeal before us.

The fifth factor considers the extent and character of the work performed, and the eighth factor considers the intricacies of the facts in dispute. NOBR presented arguments twice before this Court-before both a three judge panel and a five judge panel-and the Louisiana Supreme Court. NOBR was proactive in ensuring LSPCA produced the responsive documents to their requests upon remand. As to the intricacy of facts in dispute, we note again that this litigation presented issues that were res nova in Louisiana.

The sixth factor considers the legal knowledge, and the ninth factor considers the diligence and skill of the counsel. NOBR's counsel has over thirty (30) years of combined experience in the practice of law. We note again that this litigation resulted in an expansion of the PRL and NOBR was successful in securing the production of certain requested documents. We find this to be an illustration of diligence and skill.

Lastly, the tenth factor considers the trial court's own knowledge. NOBR asserts that the trial court had no familiarity with the issues in the litigation. This Court acknowledges that great discretion is given to trial courts because of their "greater familiarity with the issues involved in the overall case..." Billieson , 2015-0858, p. 6, 186 So.3d at 790. Upon review of the trial court's recitation of the facts and issues in this matter we find that the court was sufficiently familiar with the underlying facts of this case, even though a different judge presided over the hearing to address the award of attorney's fees.

In its related third assignment of error, NOBR asserts that the trial court erred in awarding only a portion of what it argued would be a reasonable fee. While NOBR argues that it prevailed in full and should be entitled to the full amount of attorney's fees, LSPCA argues that NOBR prevailed in part and it acted in good faith throughout this litigation in objecting to NOBR's request. Due to their "good faith," LSPCA argues the trial court's award is appropriate.

NOBR, however, argues that the good faith argument is of no relevance in determining attorney's fees when a party prevails. NOBR also argues that the trial court improperly relied upon the "white paper" to support its position that LSPCA

acted in "good faith," which is an argument we reject. In Ferguson , 623 So.2d at 715, this Court stated:

While we do not rule out the possibility that exceptional circumstances might warrant consideration of a custodian's good faith in determining whether to award attorney's fees under R.S. 44:35(D), that must be the exception rather than the rule .

(Emphasis added).

Similarly, in Innocence Project New Orleans v. New Orleans Police Department , 2013-0921, p. 7 (La.App. 4 Cir. 11/6/13), 129 So.3d 668, 673, this Court rejected a custodian's good faith assertion in reasoning that "The statute, however, does not provide for such an exception, and, in light of the need to protect the public's right to access public records, we see no justification to judicially create such an exception." LSPCA argues its opposition to the public body classification was based on a good faith interpretation of the PRL. It is undisputed that this litigation presented res nova issues. While "good faith" is not a determinative factor in this case, we nonetheless find that it is a factor worth consideration given the facts of the case before us.

Attorney fees are not allowed unless authorized by contract or statute. Brandner, 12-62, p. 4, 102 So.3d at 189, (citing Rivet v. State, Department of Transportation and Development , 96-0145, p. 10 (La. 9/5/96), 680 So.2d 1154, 1160 ). In this matter, attorney's fees are authorized pursuant to La. R.S. 44:35(D)(1). The trial court also considered the award of attorney's fees pursuant to La. R.S. 44:35(F).

La. R.S. 44:35(F) provides:

An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for the employment of outside counsel.

In accordance with this statute, the trial court reviewed the "Maximum Hourly Fee Schedule" published by the Louisiana Attorney General on February 8, 2016. NOBR asserts that one counsel has thirty (30) years of experience practicing law and the other counsel has less than three (3) years of experience practicing law. The Fee Schedule provides the maximum hourly fee for attorneys with ten years or more is $ 225.00; the maximum hourly fee for attorneys with less than three years is $ 125.00.

In Roper , the First Circuit Court of Appeal stated "if a plaintiff only prevails in part, an award of attorney fees is discretionary with the court." Roper , 2016-1025, p. 28, 244 So.3d at 469. In other words, the court has the option to award only a portion of what it deems to be reasonable fees. An appellate review of these decisions is conducted under the abuse of discretion standard. Id. An abuse of discretion generally results from a conclusion that is reached "capriciously or in an arbitrary manner." Id. The trial court awarded $ 5,000.00 in attorney's fees and the full amount for litigation costs. The Roper court reasoned that "the trial court may render judgment for costs, or any part thereof, as it may consider equitable, and its assessment of costs will not be reversed on appeal in the absence of an abuse of discretion." Id. The trial court noted it found that NOBR prevailed in part, and we agree. In considering a reasonable award of attorney's fees, the trial court noted it considered the award pursuant to La.R.S. 44:35(F) and reviewed the "Maximum Hourly Fee Schedule" published by the Louisiana Attorney General. The trial court reviewed this schedule in conjunction with the invoices provided by NOBR. Further, the trial court noted it considered the Williamson factors. This Court does not find that the trial court erred in awarding NOBR a partial amount in attorney's fees. We agree NOBR only prevailed in part. However, we do find that the trial court abused its discretion in awarding only $ 5,000.00 in attorney's fees in light of the applicable Williamson factors. In Brandner, the Court reasoned that courts "must consider each factor in light of the specific facts of each case." Brandner , 12-62, p. 5, 102 So.3d at 189. Therefore, based on our review of the Williamson factors, we find that the award for attorney's fees should be increased to $ 10,000.00.

CONCLUSION

For the foregoing reasons, we affirm the trial court judgment granting, in part, and denying, in part, NOBR's Motion to Assess Attorney's Fees and Penalties, and granting, in part, and denying, in part, LSPCA's Motion for Declaratory Judgment. However, this Court amends the trial court's award of attorney's fees to $ 10,000.00.

AMENDED, IN PART, AND AFFIRMED AS AMENDED.

      The release of veterinary records is prohibited pursuant to La. Admin. Code Title 46, Part LXXXV, § 701(B)(1), which provides in part: "the veterinarian shall maintain such records and shall not release the records to any person other than the client or a person authorized to receive the records for the client." The release of veterinary records is also a violation of Section VII(C) of the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association, which provides in part: "Ethically, the information within veterinary medical records is considered privileged and confidential. It must not be released except by court order or consent of the owner of the patient."

      This "White Paper" was published in May 2017 by the Louisiana Legislative Auditor entitled "The Public Record Law and Private Entities Engaging in Public Functions Re: New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals."

      NOBR's fourth assignment of error asserts that the trial court erred in concluding the "white paper" had any applicability to its claim for attorney's fees. LSPCA argues the trial court's reference to the "white paper" is to support the fact that this litigation expanded the PRL. We agree. We find the trial court cited this "white paper" to reference the Louisiana Supreme Court's finding that this litigation expanded the PRL to private entities that previously were not considered public entities under the law. Thus, we find this assignment of error has no merit and a robust discussion of it is not necessary for us to reach our conclusions.

      La.R.S. 44:35(D)(1) was not designated as such at the time this matter was litigated. This statute was amended by Acts 2018, No. 394 § 1 to add La.R.S. 44:35(D)(2) ; thus, making the above cite La.R.S. 44:35(D)(1).


author: KEATY, Judge.

text:
    Wilbert S. PORCHE v. SUTHERLANDS LUMBER AND HOME CENTER, INC., et al.
    18-551
    Court of Appeal of Louisiana, Third Circuit.
    February 13, 2019
    Christopher J. Roy, Sr., Chris J. Roy, Sr. Law Office, L.L.C., George C. Gaiennie, III, Gaiennie Law Firm, L.L.C., 1920 Jackson Street, Alexandria, Louisiana 71301, (318) 767-1114, Counsels for Plaintiffs/Appellants: Rosana Scott Vanburen, Blanche P. Wallace, Kimberly Yvonne Guidy
    Mark F. Vilar, Aaron L. Green, Paul Boudreaux, Jr., Vilar & Green, L.L.C., 1450 Dorchester Drive, Alexandria, Louisiana 71301, (318) 442-9533, Counsel for Defendants/Appellees: Sutherland Building Material Centers, L.P., Wesco Insurance Company
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Substituted party plaintiffs appeal a trial court judgment granting defendants' exception of prescription and dismissing their wrongful death claims as prescribed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Wilbert Porche was injured on September 8, 2008, when he fell at a lumber store after tripping on the fork portion of a forklift that was partially obstructing an aisle. He filed suit against Sutherland Building Material Centers, L.P., and its liability insurer, Wesco Insurance Company on September 4, 2009, to recover for the damages he sustained a result of the accident. Porche died on May 23, 2012, and in January 2013, his mother, Blanche Smith; two sisters, Rosana Vanburen and Blanche Wallace; and niece, Kimberly Guidry, filed a motion to be substituted as parties plaintiff in Porche's personal injury lawsuit. The trial court allowed the substitution by order dated January 9, 2013. The substituted plaintiffs (hereafter referred to as "Plaintiffs") filed an Amending and Supplemental Petition in September 2013 wherein they disclosed that Porche had no children and was not married at the time of his death. In that pleading, Plaintiffs further alleged that Smith had assigned to the remaining Plaintiffs:

[A] one fourth undivided interest each in her cause of action for the damages incurred by the deceased as a result of the accident alleged in the original petition, and each of the petitioners now owns a one fourth undivided interest in the cause of action set forth in the original petition.

By order dated September 9, 2013, the trial court allowed the Amending and Supplemental Petition to be filed and granted Plaintiffs' request to strike from their motion to substitute parties the allegation that Porche died "from natural causes unrelated to the injuries for which he claimed damages in his Petition."

In November 2017, Defendants filed peremptory exceptions of peremption and prescription in which they asserted that any potential wrongful death cause of action arising in favor of Plaintiffs with regard to Porche had prescribed, as no such claim had been brought within one year of his May 2012 death. In response, Plaintiffs filed a Third Amending and Supplemental Petition in which they alleged that the injuries Porche suffered in the accident made subject of this lawsuit "caused or contributed to" his death and that Porche's mother, Smith, suffered damages and incurred expenses as a result of Porche's death. Therein, Plaintiffs disclosed that Smith died testate in 2014 and that by a judgment rendered in her succession, they were sent into possession of Smith's "right, title, and interest in the survival action and the wrongful death action which Blanche Scott Smith had arising out of the injuries sustained by Wilbert S. Porche at the Sutherland store on or about September 8, 2008." Plaintiffs also filed a memorandum in opposition to Defendants' exceptions wherein they alleged that they had amended and supplemented their petition to set forth a wrongful death claim that was not prescribed because it arose from the accident that served as the basis for Porche's timely filed original petition.

At the conclusion of a March 5, 2018 contradictory hearing, the trial court granted Defendants' exception of prescription in open court and dismissed Plaintiffs' wrongful death claim. Plaintiffs appeal, arguing in their sole assignment of error that the trial court erred in sustaining the exception of prescription as to their wrongful death claim.

DISCUSSION

Prescription statutes are intended to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period. Ordinarily, the burden of proof is on the party pleading prescription; however, if on the face of the petition it appears prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period.... The prescriptive period for a wrongful death action is controlled by La.C.C. art. 3492, the one-year liberative period applicable to delictual actions.

Brown v. Our Lady of The Lake Reg'l Med. Ctr. , 00-2548, p. 3 (La.App. 1 Cir. 12/28/01), 803 So.2d 1135, 1137 (citations omitted). "When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review." Specialized Loan Servicing, L.L.C. v. January , 12-2668, pp. 3-4 (La. 6/28/13), 119 So.3d 582, 584.

Survival actions are governed by La.Civ.Code art. 2315.1(A), which provides, in pertinent part, that:

If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased.

Wrongful death actions are governed by La.Civ.Code art. 2315.2, which provides, in pertinent part, that:

If a person dies due to the fault of another, suit may be brought by the following [later enumerated] persons to recover damages which they sustained as a result of the death[; however, t]he right of action granted by this Article prescribes one year from the death of the deceased .

La.Civ.Code art. 2315.2(A) and (B) (emphasis added).

Both survival and wrongful death rights of action are "heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period." La.Civ.Code arts. 2315.1(C) and 2315.2(C). Louisiana Code of Civil Procedure Article 1153 provides that "[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading."

In their memorandum in opposition to Defendants' exceptions, Plaintiffs acknowledged that "[a]t the time of the filing of the exceptions no wrongful death claim had been made." They asserted, however, that since then, they had "amended and supplemented their petition to set forth a wrongful death claim as well as the previously asserted survival claim." Citing La.Code Civ.P. art. 1153, Plaintiffs alleged that because their wrongful death claim arose out of the accident upon which Porche's original petitions was based, the amendment should relate back to that pleading, thus making their wrongful death claim timely such that Defendants' exceptions should be denied. Moreover, Plaintiffs submitted that La.Code Civ.P. art. 1153 should apply despite the fact that survival and wrongful death claims are separate causes of action, as was the result reached in Scott v. Haley , 632 So.2d 793 (La.App. 1 Cir. 1993). Scott was a medical malpractice case in which the first circuit allowed "an amending petition asserting a wrongful death claim, filed more than a year after the decedent's death, [to] relate back to a timely filed original petition which asserts a survival action." Id. at 794. The plaintiffs in Scott were the surviving children of Mr. W. Bennett Scott, Sr., whom, as disclosed in their petition, had died after experiencing complications from eye surgery. In holding that the plaintiffs' wrongful death claim was timely, the first circuit noted:

The essence of interruption of prescription by suit is notice. In this case, the same parties are named in both petitions. While the original petition does not specifically mention wrongful death, it states that Mr. Scott died on January 23, 1991. Furthermore, the original petition explicitly sets forth the acts of malpractice which allegedly contributed to Mr. Scott's death.
Under these facts, there is identity of interest between the parties and there is sufficient factual connexity between the original and supplemental petition to give defendants notice of plaintiffs' amended claim.

Id. at 795.

Defendants counter that after Scott was decided, the fourth circuit clarified that " LSA-C.C.P. art. 1153 which provides for relation back refers only to amended petitions, not supplemental petitions." Smith v. Cutter Biological , 99-2068, p. 36 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, 412. In Smith , a hemophiliac filed suit in 1993 against the manufacturer of an allegedly tainted clotting factor. Following his death and while his suit was pending, his parents filed a motion to be substituted as plaintiffs in 1997. After a jury found the defendants liable for negligence and fraud, awarding the parents survival and wrongful death damages, the trial court entered a judgment dismissing the parents' claims as prescribed. The parents appealed, and the first circuit affirmed. In deciding the matter before it, the Smith court noted:

[I]n Scott there are several factors favoring the doctrine of relation-back that do not exist in the instant case: 1) a timely filed original petition; 2) the same parties that filed the original petition filed the amendment; 3) the death of the decedent was referred to in the original petition; and 4) the Scott court was not being asked to relate the wrongful death claim back to a time prior to the time it arose.

Id. at 411. In pondering the issue before it, the Smith court "observe[d] that it seems strange to contemplate the relation back of a claim or cause of action to a time prior to the time at which the claim or cause of action came into existence." Id. at 410. Ultimately, the fourth circuit held that the son's "untimely filed original petition does not support the relation-back of a new cause of action asserted by new parties." Id. at 413. In so holding, the Smith court payed special attention to La.Code Civ.P. art. 1153's positioning in the Louisiana Code of Civil Procedure. Article 1153 is found between Article 1151, which provides for amended petitions and answers, and Article 1155, which provides for supplemental petitions and answers "setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer ." La.Code Civ.P. art. 1155. Based on their analysis, the fourth circuit "reach[ed] the inescapable conclusion that when the legislature failed to provide for the relation-back of supplemental petitions it was not through oversight, but through reason." Smith , 770 So.2d at 412. The Smith court later reiterated that the "touchstone element giving rise to a claim of wrongful death is the death of the decedent[, a]nd La.C.C.P. art. 1153 permits post-prescription amendment only if the original pleading gives fair notice of the general factual situation from which the amended demand arises." Brown , 803 So.2d at 1139.

Recently, this court addressed the difference between amending pleadings and supplemental pleadings in the context of an oilfield legacy litigation, stating:

The rights sought to be bestowed in the assignments were not exigible at the time of suit in 2010. Therefore, the claims in the new petition were supplemental, not amending, no matter how the caption of the petition reads, and the relation back of La.Code Civ.P. art. 1153 applies only to amending petitions.
....
In this case, the evidence in the record confirms that Grace Ranch filed its original petition in 2011. In 2013, Grace Ranch sought several assignments of tort claims from the Leblancs and/or their heirs. According to La.Civ.Code art. 3493, "[w]hen damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage." In 2017, Grace Ranch filed a "First Amended Petition for Damages," asserting the tort claims it was previously assigned in 2013. According to the dictates of Boone [ v.Conoco Phillips Co ., 13-1196 (La.App. 3 Cir. 5/7/14), 139 So.3d 1047 ], the rights sought to be bestowed in the assignments were not exigible at the time Grace Ranch filed suit in 2011. Thus, the claims asserted in Grace Ranch's 2017 pleading were supplemental rather than amending. Since relation back under La.Code Civ.P. art. 1153 applies only to amending petitions, the claims asserted in Grace Ranch's 2017 supplemental petition do not relate back to the original petition's filing. Since the claims do not relate back, the newly alleged tort claims prescribed before they were asserted.

Grace Ranch, LLC v. BP Am. Prod. Co. , 17-1144, pp. 17-18 (La.App. 3 Cir. 7/18/18), 252 So.3d 546, 557-58 (quoting Boone , 139 So.3d 1047 ).

In the instant matter, after hearing the arguments of counsel, the trial court stated that La.Code Civ.P. art. 1153 did not apply to these facts so as to allow Plaintiffs' supplemental pleading to relate back to the date Porche's original petition was filed. Thereafter, it granted Defendants' exception of prescription as to Plaintiffs' "wrongful death claim only," thus noting the viability of Plaintiffs' survivor claims.

As previously noted, the right to bring a wrongful death action "prescribes one year from the death of the deceased." La.Civ.Code art. 2315.2(B). Porche, the original plaintiff herein, died on May 23, 2012. Thus, any right of action pertaining to his wrongful death prescribed on May 23, 2013. When Porche's mother, Smith, died in 2014, she had not asserted a wrongful death claim in regard to her son. Accordingly, she possessed no wrongful death claim to assign to the remaining Plaintiffs while she was alive or to transmit to the remaining Plaintiffs by testament upon her death. In addition, Plaintiffs herein admittedly did not file a Third Amending and Supplemental Petition in which they attempted to set forth any wrongful death claims until December 27, 2017, long after any such claims had already prescribed. Accordingly, the trial court did not err in determining that Plaintiffs' wrongful death claims were prescribed. This matter will be remanded to the trial court for the adjudication of Plaintiffs' survivor claims.

DECREE

For the foregoing reasons, the judgment of the trial court granting the exception of prescription in favor of Defendants, Sutherland Building Material Centers, L.P., and Wesco Insurance Company with regard to the wrongful death claims asserted by Plaintiffs, Rosana Scott Vanburen, Blanche P. Wallace, and Kimberly Yvonne Guidry is affirmed. This matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against Plaintiffs.

AFFIRMED AND REMANDED.

      Sutherland Lumber and Home Center, Inc. was improperly named as an original defendant but was later removed by supplemental and amending petition.

      We will use the term "Plaintiffs" to refer to the substituted plaintiffs despite the fact that Smith died during the pendency of this action.

      The trial court designated the ruling as a final judgment per La.Code Civ.P. art. 1915(B).

      The trial court had reserved the issue of prescription to be tried by the bench.