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    STATE of Louisiana v. Ernest R. BLACKWELL
    NO. 18-KA-116
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Justin B. LaCour
    COUNSEL FOR DEFENDANT/APPELLANT, ERNEST R. BLACKWELL, Prentice L. White
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Defendant, Ernest R. Blackwell, seeks review of his convictions and sentences for misapplication of payment by a contractor and engaging in business without a contractor's license. For the following reasons, we affirm defendant's convictions and sentences and remand with instructions.

Statement of the Case

On November 4, 2013, the District Attorney for St. John the Baptist Parish filed a bill of information charging defendant, Ernest R. Blackwell, with misapplication of payment by a contractor in an amount greater than one thousand dollars, in violation of La. R.S. 14:202 (count one), and engaging in business without a contractor's license, in violation of La. R.S. 37:2160 (count two). Defendant was arraigned on November 20, 2013, and pled not guilty to the charged offenses. On September 15, 2015, trial commenced before a six-person jury and concluded on September 17, 2015, with a unanimous verdict of guilty on both counts.

On September 30, 2015, the State filed a multiple offender bill of information pursuant to La. R.S. 15:529.1, alleging defendant to be a second-felony offender.

On January 25, 2016, the trial court sentenced defendant on count one, misapplication of payment by a contractor, to fourteen months "incarcerated," with seven of the fourteen months suspended, and on count two, engaging in business without a contractor's license, to fifty-six months in the Department of Corrections, with thirty months suspended during which time defendant is to be placed on active probation. The trial court ordered that these sentences were to be served concurrently. Immediately after sentencing, defense counsel moved for the granting of his written motion for appeal filed on October 20, 2015, which the trial court orally granted.

On February 16, 2016, after a hearing on the multiple offender bill, the trial court found the State had met their burden of proof as to the predicate convictions alleged in the multiple bill. On May 4, 2016, a restitution hearing was conducted. On September 9, 2016, the trial court ordered defendant to pay restitution on count one in the amount of $5,510.11 to the victims in this case. The court then resentenced defendant as a second-felony offender, to five years imprisonment with the Department of Corrections on count one and six years imprisonment with the Department of Corrections on count two. The trial court further ordered defendant's enhanced sentences to run concurrently with each other and imposed a two thousand dollar ($2,000) fine on each count.

On June 19, 2017, defendant filed an application for post-conviction relief (APCR) seeking an out-of-time appeal. On August 14, 2017, finding an appeal had previously been filed on defendant's behalf, the trial court signed defendant's written motion for appeal, which was filed on October 20, 2015, and orally granted after sentencing in January of 2016.

Facts

Defendant's convictions stem from repair work done for Thomas and Michelle Calmes. Mr. and Mrs. Calmes' home in LaPlace, Louisiana, was badly damaged in 2012 by Hurricane Isaac. In mid-September of 2012, Mr. and Mrs. Calmes hired defendant to perform repair work on their home because of his competitive quote, projected timeline, and "because he portrayed himself as a contractor who would do all the subcontracting" and supervise the work. According to Mrs. Calmes, defendant indicated that he was a licensed contractor able to perform all of her home repairs and that anything he was unable to do he would hire subcontractors to do. At trial, Mrs. Calmes testified that when meeting defendant, he provided her with a flyer indicating that he was with Professional Remodeling Specialists, aka "PRS, LLC" (PRS), which contained a license number (40025) indicating an association with "Dean Walters, Residential/Commercial State Licensed Contractor," as well as two email addresses, namely "eblackwell777@yahoo.com" and "professionalrspecialists@gmail.com." Mrs. Calmes explained that she would have never hired someone who was not a licensed contractor.

Defendant personally presented Mr. and Mrs. Calmes with two contracts for repair work, which they both signed on October 11 and 13, 2012. The first contract pertained to all labor and materials for repairs to their home with a contract price of $82,500.00, and the second was for roof repairs with a contract price of $12,000.00. Mrs. Calmes testified that the company listed on the contract was "Dean Walters, d/b/a Professional Remodeling Specialists, LLC," license number 40025, and was signed on behalf of PRS by Keely Authement. Defendant told the Calmeses that Ms. Authement was a company officer, that she signed all contracts, and that he and Dean Walters were co-owners of PRS. Mr. and Mrs. Calmes never met either Ms. Authement or Mr. Walters.

Work began on the Calmeses' home on October 15, 2012. At trial, Mrs. Calmes explained that the repairs to her home would be financed by insurance money paid directly to her mortgage company, Wells Fargo, who would then release payment to her and her husband. Defendant, as the contractor/owner of PRS, signed a waiver of lien, required by Wells Fargo, related to his work on the project.

Mrs. Calmes testified that she and her husband paid defendant approximately $55,000.00. The first check, dated October 18, 2012, was from Mrs. Calmes' personal bank account for $8,000.00, written out to PRS, and was endorsed for deposit by Ms. Authement. The second check, dated October 25, 2012, was issued by Wells Fargo, made out to PRS and the Calmeses, and was for $6,032.78. Mrs. Calmes testified that she and her husband, along with defendant and Ms. Authement, endorsed the check. A third check, dated November 8, 2012, was issued by Wells Fargo and was made out to PRS and the Calmeses, for $16,661.19. The Calmeses and only defendant endorsed this check. The last check dated December 7, 2012, was from Wells Fargo, for $24,964.47, and was made out to PRS and the Calmeses. The Calmeses endorsed this check and gave it to defendant.

Mrs. Calmes recalled that once work commenced, there were problems with the sheetrock, paint, the wood flooring, and the kitchen and bathroom tile. She explained that defendant was difficult to contact and that defendant's subcontractors complained that defendant was not paying them for their work. Mrs. Calmes testified that while the contract stated that the price included labor and materials, the Calmeses spent approximately $8,000.00 of their own money purchasing materials at defendant's request. Defendant told the Calmeses that he would reimburse them for their purchases but never did.

Mrs. Calmes further testified that she and her husband selected cabinets and countertops from John Sun Kitchen and Bath (John Sun) as part of the repairs to be made to their home and that defendant only paid a portion of the money owed to John Sun, claiming that the cabinets had not been installed correctly. According to Mrs. Calmes, defendant was aware that money was owed for the cabinets and informed the Calmeses that it would be paid off. However, because the bill was not paid, a lien was placed on the Calmeses' home for the outstanding amount.

The Calmeses terminated defendant's services on January 14, 2013, and filed a complaint against him with the state licensing board. They also took out an SBA loan in the amount of $39,000.00 to cover the expenses they incurred by having to hire a new contractor.

Thomas Calmes corroborated his wife's testimony, in pertinent part, confirming that defendant submitted an estimate for their home repairs from his personal email account to his wife's email, that he signed the contract given to him personally by defendant, that defendant represented to him that he was a licensed contractor, that defendant committed to doing their home repairs, and that defendant began work on their home on October 15, 2012. Mr. Calmes also testified that he contacted the licensing board before signing the contract with defendant and confirmed that the license number in the contract (40025) was a valid license. From the outset, Mr. Calmes recalled the progression of work to be slow and the workmanship to be poor. He further noted that when he and his wife terminated defendant's employment, they had paid him approximately $55,000.00 and that their home was still not complete and was unlivable. Thus, Mr. Calmes testified that they hired a second contractor to finish the repairs.

Todd Duhe, business owner of InspecTile, was qualified as a forensic expert on tile, stone, and flooring. He testified that in January of 2013, Mr. Calmes contacted him about incomplete work performed on his home. Upon inspection of the Calmeses' home, Mr. Duhe reported that the Calmeses were living in one bedroom of the house and were using the hallway bathroom. He noted several areas of concern regarding the workmanship performed on the house in the master bathroom, the hallway bathroom, the kitchen, and the wood flooring, all requiring removal and replacement of the materials used. Mr. Duhe concluded his report finding, "This entire installation reflects improper installation methods. Contractor did not follow minimum guidelines or procedures. Remove and replace all mentioned areas."

At trial, Carl Bourque, residential compliance supervisor for the State Contractor's Board, testified that a home improvement license is required to perform residential work between $7,500.00 and $75,000.00. Mr. Bourque explained that a contractor is considered anyone who hires subcontractors, submits bids, supervises, or oversees a job. Based on licensing records, Mr. Bourque testified that defendant possessed a state license to perform residential contracting work some time in 2010 or 2011, but that his license was revoked on August 22, 2012, and then reinstated on October 22, 2012, with a retroactive date of October 18, 2012. Thus, there was a period of two months between August 2012 and October 2012 where defendant could not legally act as a residential contractor on jobs in excess of $7,500.00 under the law.

Mr. Bourque further testified that as residential compliance supervisor, he received a written complaint from the victims, Mr. and Mrs. Calmes, regarding defendant's work on their home. The Calmeses provided Mr. Bourque with a copy of their contracts with defendant dated October 11, 2012, and October 13, 2012, dates on which defendant did not possess a valid contractor's license. Mr. Bourque explained that: (1) a licensed contractor is not permitted to let another person use their license; (2) anyone who submits bids or presents a contract for residential work is required to have a valid license; (3) the person submitting a bid for home improvement work must submit it in his own licensed name; and (4) payment must be made to the licensed person submitting the bid.

During Mr. Bourque's investigation of the Calmeses' complaint, Mr. Bourque contacted Dean Walters who, through written correspondence, maintained that he had never met the Calmeses before, that he had no knowledge of the project, and that he did not give defendant permission to use his license. Mr. Bourque also testified that defendant's license was revoked a second time; that prior to 2012 there had been several complaints from other homeowners regarding his work; and that the Board had previously found him guilty of practicing without a license.

The St. John Parish Sheriff's Office detective, who investigated the Calmeses' complaint, testified that he obtained from them the flyer defendant gave them advertising his services and the $82,500.00 renovation contract they entered into with defendant. During its investigation, the Sheriff's Office found the following information. Neither defendant nor PRS had a valid license at the time the contract was entered into with the Calmeses. The Calmeses' last check to defendant for approximately $25,000.00 on December 12, 2012 was deposited into an account belonging to a different corporation, Professional Shoring Elevations. After depositing the Calmeses' $25,000.00 check, defendant transferred $8,000.00 into his personal savings account. On December 13, 2012, defendant paid John Sun $6,000.00 for the Calmeses' cabinets via check. After this payment to John Sun, there was approximately a $2,824.00 balance owed to John Sun, which defendant did not pay despite having received adequate funds from the Calmeses to cover the remaining balance. Because defendant failed to pay this balance, a lien was placed on the Calmeses' property by John Sun. There were also a series of checks totaling $7,000.00 written out to Ms. Authement from the Calmeses' check that had been deposited into defendant's personal Chase account and several checks written out from the Chase account to defendant's relatives and to Mr. Walters. Defendant also used the money received from the Calmeses to make payments on other construction projects totaling $4,000.00.

During its investigation, the Sheriff's Office discovered from the Louisiana Secretary of State's website that PRS was incorporated on September 10, 2012 by Ms. Authement, who was listed as the registered agent and principal member. In December 2012, Mr. Walters was added as a "second party."

After defendant was arrested and advised of his Miranda rights, he admitted that he performed work on the Calmeses' house and confirmed that he had been paid approximately $54,000.00 - $55,000.00 for that work. Defendant stated that he was unaware of any problems regarding his work until the Calmeses terminated him. Defendant said he used Mr. Walter's license number because he had taken "on another party to alleviate some of" his workload and confirmed that Ms. Authement was his ex-girlfriend. Defendant explained that he had not paid the outstanding balance owed to John Sun for the Calmeses' cabinets because he had not been paid enough money. Defendant admitted that the email "eblackwell777@yahoo.com" contained on the flyer provided to the Calmeses was his personal email address and that one of the phone numbers listed on the flyer was for Professional Shoring Elevations, a corporation defendant started in 2011 with Mr. Walters.

The bank records for PRS showed that this company maintained two accounts, one with Regions bank and one with Capital One bank. The account maintained at Regions was listed under the name "PRS, 225 Lee Street, Slidell," with an associated email address of "professionalrspecialists@gmail," which was consistent with the flyer provided by defendant. The signatory listed on the account was Ms. Authement. But, the Regions bank records contained several cancelled checks signed by defendant, including a check signed by defendant for work performed on the Calmeses' house. Prior to the deposit of the Calmeses' checks, the Regions account contained less than $100.00. After the deposits were made, the records showed that Ms. Authement authored checks to herself for $3,000.00 in October of 2012 and $1,000.00 in November of 2012. The PRS business account further reflected spending charges at clothing retail stores and bar establishments.

As to the Capital One account, bank records reflected defendant was signing checks made out to PRS and was writing checks to Mr. Walters and Ms. Authement. Defendant also had a personal bank account with Capital One in which two checks made out to PRS d/b/a Ernest Blackwell were deposited.

At trial, the John Sun office manager confirmed that in September of 2012, her business provided cabinets for the Calmeses' renovation. The invoice dated December 14, 2012 for $8,824.00 was billed to Professional Shoring via email address "eblackwell777@yahoo.com." John Sun received a check for $6,000.00 from Professional Shoring Elevations and signed by defendant, leaving a remaining balance of $2,824.00. Repeated attempts were made to secure payment of the outstanding balance to no avail, so a lien was placed on the Calmeses' property on March 15, 2013. The outstanding invoice was eventually paid a few months prior to trial on May 13, 2015, by cashier check listing the name of the remitter as "Mr. Walters." The outstanding fees owed for the filing of the lien in the amount of $475.00 were also paid by cashier check the day before the trial commenced, referencing Mr. Walters as the remitter and hand delivered by a woman who identified herself as "Keely."

Cynthia Butler testified that she hired defendant in May of 2011 to elevate her home after receiving a written quote from "PRS" identified as contractor's license number 880811, and signed by defendant. Ms. Butler signed a written contract with PRS, with license number 880811 and signed by Jason Collin, a proxy for defendant. Ms. Butler testified that defendant performed work on her home, which eventually led to charges filed against him in Jefferson Parish for theft and home improvement fraud.

Brian Blackwell, defendant's brother, testified on behalf of the defense. He stated that he performed work for PRS on the Calmeses' house seven days a week and that defendant acted as supervisor. He asserted that Mr. Walters and Ms. Authement, and on occasion, defendant, paid him for his work.

Lastly, Keely Authement, defendant's ex-girlfriend, testified that she has been in the construction business for many years, and that in September of 2012, she formed PRS with Mr. Walters, whom she met through defendant. She further explained that she and Mr. Walters are the only two owners of PRS and that Mr. Walters is a licensed contractor. Ms. Authement stated that she hired defendant as her foreman to perform work on houses that had been damaged in St. John Parish in 2012 as a result of Hurricane Isaac. Ms. Authement testified that as co-owner of PRS, she signed a contract with the Calmeses containing PRS' license which she authorized defendant to deliver to the Calmeses. Ms. Authement stated that she never received a check for $6,000 for roof work allegedly performed on the Calmeses' roof. She further testified that she authorized defendant to pick up the Calmeses' cabinets from John Sun and that defendant paid for the cabinets out of his own account and was then reimbursed by PRS. Ms. Authement was unaware that a lien was pending on the Calmeses' home because of outstanding fees owed to John Sun for the cabinets; however, when she became aware, the money owed was paid.

Defendant appeals his convictions and sentences, asserting that there was insufficient evidence at trial to convict him of engaging in the business of contracting without a license and misapplication of payment by a contractor; and that the trial court erred in not granting his motion for mistrial after certain statements made by a St. John Parish Sheriff's Office detective during his testimony. For the following reasons, we affirm defendant's convictions and sentences.

Assignment of Error One

In his first assignment of error, defendant challenges the sufficiency of the evidence used to convict him of engaging in the business of contracting without a license and misapplication of payment by a contractor. Based on the following, we find this assignment of error lacks merit.

The United States Supreme Court has established the standard of review for determining the sufficiency of the evidence as whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to evaluate whether the evidence at trial established guilt beyond a reasonable doubt. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. The reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ; see also State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998) ; State v. Holmes, 98-490 (La. App. 5 Cir. 3/10/99), 735 So.2d 687, 690. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208.

Engaging in Business without a Contractor's License

As to the conviction of engaging in the business of contracting without a license, defendant maintains the State failed to establish that he acted in any capacity with the Calmeses other than as a mandatary/agent for PRS, a licensed company legally able to engage in the business of contracting. He asserts that the contract signed by the Calmeses on October 5, 2012 contained a valid contractor's license number for PRS and that he neither advertised himself as a contractor nor personally signed the contract with the Calmeses. The State responds that the jury reasonably concluded from the evidence adduced at trial that PRS was defendant's alter ego and that he acted as the contractor for the renovations performed on the Calmeses' home. The State maintains that defendant represented himself to the Calmeses as a licensed contractor and owner of PRS, despite the lack of a valid contractor's license.

Defendant was convicted of engaging in business without a contractor's license, in violation of La. R.S. 37:2160(A)(1), which prohibits any person from engaging in the business of contracting or acting as a contractor without an active license as a contractor. As it pertains to this case, La. R.S. 37:2150.1(8) defines a "home improvement contractor" as "any person, including a contractor or subcontractor, who undertakes or attempts to, or submits a price or bid on any home improvement contracting project." Home improvement contracting means the:

[R]econstruction, alteration, renovation, repair, modernization, conversion, improvement, removal, or demolition, or the construction of an addition to any pre-existing owner occupied building which building is used or designed to be used as a residence or dwelling unit, or to structures which are adjacent to such residence or building.

La. R.S. 37:2150.1(7). When the cost of the undertaking exceeds seventy-five thousand dollars, any person performing home improvement contracting as provided for in La. R.S. 37:2150.1(7), supra, is considered a "residential building contractor." La. R.S. 37:2150.1(11).

In this case, in mid-September of 2012, the Calmeses hired defendant to repair damage to their home caused by Hurricane Isaac. According to the Calmeses, defendant represented himself as a licensed contractor who would supervise all of their home repairs. The advertisement flyer defendant gave the Calmeses contained defendant's contact information for the company, PRS, which they believed defendant to own. The Calmeses testified that defendant personally performed the walk-through of their home and provided them with an estimate via his personal email address.

Once the home renovation cost of $82,500.00 was agreed upon, defendant personally delivered the contract to the Calmeses who signed the contract on October 11, 2012. The contract entitled "Dean Walters d/b/a Professional Remodeling Specialists, LLC," with a Louisiana State License number of 40025, was signed by Keely Authement, "Rep. for Professional Remodeling Specialists, LLC," whom the Calmeses had never met. After questioning defendant regarding the identity of Ms. Authement, defendant's ex-girlfriend, defendant informed the couple that she was an officer of PRS and "signed all contracts." Defendant also informed the Calmeses that he and Dean Walters-whom they had also never met-were co-owners of PRS. On the same date, a conditional waiver of lien was executed by the Calmeses and defendant as "owner" of PRS and was provided to the Calmeses' home mortgage company. Work began on the property on October 15, 2012, and was terminated on January 14, 2013, after defendant's promise of job completion had not been met, and the work that was performed proved to be substandard.

The evidence at trial established that per Louisiana State Licensing records, defendant did not possess a valid contractor's license at the time of the execution of the contract with the Calmeses. Specifically, Mr. Bourque, compliance supervisor for the State of Louisiana Contractor's Board, testified that at the time defendant entered into the contract with the Calmeses, his residential contracting license had been revoked, and he was prohibited from acting as a residential contractor on jobs in excess of $7,500.00. Mr. Bourque further testified that while Dean Walters possessed a valid contractor's license during the relevant time period, neither PRS nor Ms. Authement, who signed the contract on behalf of PRS, did. Mr. Bourque explained that a licensed contractor may not permit another person to use their license and that anyone who submits bids or presents a contract for residential work is required to have a valid license.

Additionally, during the investigation of this case, the Sheriff's Office discovered that the Louisiana Secretary of State's website reflected that PRS was incorporated on September 10, 2012, and was formed by Ms. Authement who was listed as the registered agent and principal member. It was not until December of 2012, months after the signing of the contract at issue, that Mr. Walters was added as a "second party." According to Ms. Authement, defendant thought it would be "a good idea" to use the name PRS for the LLC she created because he had performed business in the past under the name PRS. The investigation also revealed that defendant received and signed checks for the work from the Calmeses, although defendant was not listed as a signatory on PRS' bank account, and that defendant deposited two checks made out to PRS d/b/a Ernest Blackwell into his personal account with Capital One.

Based on the evidence and testimony adduced at trial, neither defendant nor PRS as an entity could validly enter into a contract with the Calmeses on October 11, 2012. "If a member of a limited liability company personally acts in the capacity as a contractor without an active contractor's license accorded to himself or to the limited liability company, that member's actions constitute criminal conduct." State v. Allen, 14-0291 (La. App. 1 Cir. 6/4/15), 174 So.3d 1163, 1170, writ denied, 15-1337 (La. 9/6/16), 205 So.3d 914. Here, the license number used by defendant during and after his contract negotiations with the Calmeses belonged to Mr. Walters, who, through written correspondence, denied any knowledge of the Calmes project, had never met the Calmeses before, and had not given defendant permission to use his license, nor could he have under the law.

Considering the foregoing, we find the evidence established that defendant was the contractor for the construction project at the Calmeses' home, who at all pertinent times, did not hold an active contractor's license and was not working as an "agent" on behalf of Mr. Walters d/b/a PRS. The jury chose to reject defendant's theory that he was merely acting in a representative capacity as an employee of Mr. Walters d/b/a PRS. It is the fact-finder who weighs the respective credibility of the witnesses, and this Court will not second-guess those determinations. Smith, 661 So.2d at 443. Accordingly, we find the evidence was sufficient to convince a rational tier of fact, beyond a reasonable doubt, that defendant engaged in the business of contracting without an active contractor's license.

Misapplication of Payment by Contractor

Defendant was also convicted of misapplication of payments by a contractor, in violation of La. R.S. 14:202, which provides, in pertinent part:

No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.

To convict a defendant of misapplication of payments by a contractor, the State must prove: (1) the existence of a contract to construct, erect, or repair a building, structure, or other improvement; (2) the receipt of money on the contract; and (3) a knowing failure to apply the money received as necessary to settle claims for material and labor due under the contract. State v. Spears, 05-0964 (La. 4/4/06), 929 So.2d 1219, 1223. Proving misapplication of the funds is not enough. The State must prove that the misapplication was made knowingly. Allen, 174 So.3d at 1167. Specific intent may be inferred from the circumstances and actions of the defendant. Spears, 929 So.2d at 1223-24.

As to the misapplication of payment offense, defendant argues the State failed to establish that he knowingly failed to pay all outstanding invoices relative to the Calmeses' renovation project. The State asserts that the evidence at trial established that despite his awareness of the debt owed to John Sun for cabinets installed in the Calmeses' home, defendant refused to pay the outstanding balance with the funds the Calmeses paid him, but instead deposited the money for the cabinets into his own account and used the Calmeses' funds to pay for other projects.

John Sun's office manager confirmed at trial that an invoice dated December 14, 2012 for $8,824.00 was billed to a company called "Professional Shoring" via defendant's personal email address. She testified that John Sun received a $6,000.00 check from defendant, leaving a balance of $2,824.00 on the account which was reflected on a subsequent invoice returned to defendant. Despite repeated attempts to secure payment of the outstanding debt owed to John Sun, it was forced to place a lien on the Calmeses' property.

Mrs. Calmes testified that she was informed by defendant that he only paid a portion of the money owed for the cabinets because they had been installed incorrectly; however, he indicated the debt would be paid. This was in direct contradiction to the statement defendant provided to Detective Michael Shard during which he stated that the outstanding balance owed to John Sun had not been paid because he had not received enough money from the Calmeses.

Defendant's statement to Detective Shard was also refuted by the documentary evidence introduced at trial which showed the Calmeses gave defendant a check on December 12, 2012, for approximately $25,000.00, which defendant deposited into his Chase bank account (which had a balance of only a few dollars prior to the deposit) associated with defendant's corporation, Professional Shoring Elevations. The evidence also established that on December 13, 2012, defendant wrote a check in the amount of $6,000.00 to John Sun, drawn from his Chase bank account, leaving a balance owed to John Sun of approximately $2,824.00 despite having adequate funds paid by the Calmeses to cover the remaining balance. Detective Shard testified that after defendant deposited the Calmeses' $25,000.00 check into his Chase account, a transfer of $8,000.00 was made into defendant's savings account, and a series of checks totaling $7,000.00 were written out to various people including Ms. Authement and defendant's brother. Detective Shard also testified that defendant used the Calmeses' $25,000.00 check to make payments on other construction projects totaling $4,000.00-an amount sufficient to pay the outstanding balance owed to John Sun.

Based on the foregoing, we find the evidence was sufficient for a reasonable jury to find that defendant acted knowingly when he refused to pay the outstanding balance owed in the amount of $2,824.00 to John Sun despite having adequate funds from the Calmeses to cover the amount owed and that defendant instead utilized the money to pay for other projects and for his own gain. Accordingly, a rational trier of fact could have concluded beyond a reasonable doubt that defendant was guilty of misapplication of a payment by a contractor, in violation of La. R.S. 14:202.

Assignment of Error Two

In his second assignment of error, defendant argues the trial court erred in denying his motion for mistrial premised on witness Detective Shard's statement regarding defendant's pending charge for home improvement fraud (the misdemeanor charge being tried by bench trial simultaneously with the instant offenses). He asserts that the mention of the pending misdemeanor charge tainted the jury's impression of him and that the trial court's admonition for the jury to ignore the statement was not sufficient to overcome its prejudicial effect.

The State maintains Detective Shard's remark concerning home improvement fraud was not so prejudicial as to deny defendant a fair trial. The State maintains that Detective Shard's comment did not indicate that defendant had been charged with a third offense and that the comment could not have prejudiced defendant given the fact that the jury was already aware defendant had falsely represented himself as a licensed contractor.

At trial, during the cross-examination of Detective Shard, defense counsel questioned the detective regarding his support for the charge of misapplication of a payment by a contractor brought against defendant in this case. As part of defense counsel's questioning regarding the misapplication charge, he also asked Detective Shard whether he had formulated an opinion as to whether the work on the Calmeses' house was properly done, prompting the following response from the detective:

There was the information provided by the state board who comes to inspect things like that. There was an independent report conducted that I was afforded the opportunity to review, which, of course, would be by a person licensed to do such things as that. Just, again, based on the totality of the circumstances, it's based on the actual aesthetics. It's not something that I would enforce. It's the - you know, the situation with John Sun, having no license, speaking to Mr. Bourque, and the home improvement fraud based on false representation of fact at the time of the contract. That was the basis for my charges.

Defense counsel immediately moved for a mistrial based on the alleged reference by Detective Shard to another crime. The trial court denied defendant's motion for a mistrial and admonished the jury that they were to disregard "any reference to the crime entitled 'home improvement fraud' " given by the witness.

La. C.Cr.P. art. 771 is the article applicable to the situation presented in the instant matter. La. C.Cr.P. art. 771 provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
* * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

A mistrial is a drastic remedy and is warranted only where remarks result in substantial prejudice sufficient to deprive defendant of a fair trial. State v. Ventris, 10-889 (La. App. 5 Cir. 11/15/11), 79 So.3d 1108, 1123, writ denied, 13-1532 (La. 4/17/14), 138 So.3d 616. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Massey, 10-861 (La. App. 5 Cir. 6/14/11), 71 So.3d 367, 372, writ denied, 11-1621 (La. 4/20/12), 85 So.3d 1259.

We find no error in the trial court's denial of defendant's motion for mistrial. First, the prosecution did not deliberately elicit Detective Shard's comment. Detective Shard made the comment in direct response to defense counsel's questioning on cross-examination. Second, Detective Shard made the remark in response to an open-ended question posed by defense counsel and it was an isolated vague reference to "home improvement fraud," not a direct reference to an additional charge pending against defendant. Third, Detective Shard's remark pertaining to home improvement fraud was made in connection with his belief that defendant had made "false representation of fact at the time of the contract," a fact which was already known to the jury as defendant's misrepresentations formed the basis for the charge of engaging in business without a contractor's license.

Additionally, during cross-examination of Detective Shard, defense counsel asked numerous questions regarding the detective's expertise in the area of contractor fraud. Specifically, Detective Shard testified that at the time of the investigation of this case, he was the primary investigator for his office's contractor fraud division and further confirmed, in response to defense counsel's inquiry and without objection, that this case was his first one "dealing with any of the contracting fraud." Considering the foregoing, we do not find that the detective's passing remark about "home improvement fraud" substantially prejudiced defendant.

Moreover, it appears defendant received an adequate remedy under La. C.Cr.P. art. 771 when defense counsel requested that the jury be admonished and the court complied, instructing the jury to disregard Detective Shard's testimony pertaining to the subject remark. See State v. Lee, 618 So.2d 551 (La. App. 4 Cir. 1993) ; State v. Maiden, 463 So.2d 848 (La. App. 2 Cir. 1985).

Accordingly, because the record does not indicate that defendant suffered substantial prejudice that deprived him of any reasonable expectation of a fair trial, we find that the trial court did not abuse its discretion in denying the motion for mistrial.

Errors Patent

There are several discrepancies to note with respect to the multiple offender minute entry, multiple offender uniform commitment order (MO-UCO), and the transcript. First, the MO-UCO incorrectly reflects the offense date as September 3, 2013, while the record reflects that count one occurred on or between October 5, 2012 and February 21, 2013, and count two occurred on or about October 11, 2012 and October 13, 2012. Second, the MO-UCO incorrectly reflects the adjudication date as September 12, 2016. Defendant, however, was convicted on counts one and two on September 17, 2015, and was adjudicated a second-felony offender on February 16, 2016. Third, while the MO-UCO correctly reflects a sentence date of September 12, 2016 (the date when defendant was resentenced as a multiple offender on both counts), the date of defendant's original sentencing on the underlying charges, January 25, 2016, is not reflected. Fourth, the MO-UCO does not indicate that defendant's sentences on counts one and two were enhanced. Finally, the multiple offender minute entry and the MO-UCO reflect that the trial court imposed $38,900.00 in restitution on count two (engaging in business without a contractor's license), when the transcript reflects that the trial court imposed said restitution on defendant's misdemeanor conviction for home improvement fraud, which is before this Court in a separate appeal.

Given the above inconsistencies, we remand this case to the trial court for correction of the minute entry/UCO to accurately reflect the noted discrepancies. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied, 14-0481 (La. 11/7/14), 152 So.3d 170. We also direct the Clerk of Court for the 40th Judicial District Court to transmit the original of the corrected MO-UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Doucet, 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598, writs denied, 18-77 (La. 10/8/18), 253 So.3d 789 and 18-196 (La. 11/5/18), 255 So.3d 1052.

Decree

For the foregoing reasons, we affirm defendant's convictions and sentences. We remand this matter for correction of the minute entry/UCO to accurately reflect the noted discrepancies.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED

      On the same date, the State filed a separate misdemeanor bill of information, charging defendant with home improvement fraud. La. R.S. 14:202.1. Following a joint jury/bench trial, on December 28, 2015, the trial court found defendant guilty of this misdemeanor offense. This conviction is on appeal before this Court under case number 18-KA-118.

      Testimony revealed that Ms. Authement is defendant's ex-girlfriend and is not a licensed contractor.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Defendant does not dispute the first two elements the State was required to prove, namely the existence of a contract and the receipt of money on the contract. On appeal, defendant contests the third element, the knowing failure to apply the money received by the Calmeses to settle a debt owed to John Sun for cabinets.

      The State also established at trial that the Calmeses paid defendant over $55,000.00 in money they received from their insurance company for the repair of their home; that pursuant to the contract, defendant was to supply the labor and materials for the job; however, defendant often asked the Calmeses to pay for certain materials out-of-pocket which he indicated would be reimbursed. Receipts detailing these out-of-pocket expenses were introduced into evidence, and there was testimony that defendant never reimbursed the Calmeses. This evidence and testimony further supports defendant's misapplication of a payment by a contractor conviction.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    NEW ERA DEVELOPMENT CORPORATION v. Soniya Dumas ROBERT in Her Capacity as Administratrix of the Succession of Joseph Farley Dumas, Sr.
    NO. 18-CA-343
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, NEW ERA DEVELOPMENT CORPORATION, Christopher J. Davidson, John A. E. Davidson
    COUNSEL FOR DEFENDANT/APPELLANT, SONIYA DUMAS ROBERT, Michelle E. Scott-Bennett
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHEHARDY, C.J.

On appeal, Soniya Dumas Robert, individually and in her capacity as the administratrix of the Succession of Joseph Farley Dumas, Sr., challenges the trial court's ruling in favor of New Era Development Corporation and Tuan and Tina Dinh, dismissing her claims of fraud and damages. For the following reasons, we affirm.

Factual and Procedural History

This is the third appeal in this case, which has a long procedural history. The undisputed facts are that Joseph Farley Dumas, Sr. died intestate on October 27, 2007, leaving two children: Joseph Farley Dumas, Jr. ("Junior Dumas") and Soniya Dumas Robert ("Ms. Robert"). At the time of his death, Mr. Dumas, Sr. owned a piece of immovable property in Jefferson Parish.

On May 16, 2008, prior to the opening of his father's succession and while fraudulently representing himself to be Joseph Dumas, Sr., Junior Dumas executed a cash sale of this property to Tina and Tuan Dinh ("the Dinhs") at the office of Southern Title, Inc. Shortly thereafter, the Dinhs learned that Junior Dumas had fraudulently represented himself to be Joseph Dumas, Sr. and alerted Southern Title.

On July 18, 2008, at the offices of Southern Title, Tina and Tuan Dinh executed a Quitclaim Deed in favor of New Era Development Corporation ("New Era") in exchange for $38,881.50. On July 23, 2008, Ms. Robert opened her father's succession proceedings and was appointed administratrix.

On January 3, 2009, New Era filed a petition for partition by licitation seeking a judicial sale of the Martin Street property, claiming that it had a one-half interest in that property. In response, Ms. Robert, in her capacity as administratrix of the succession, filed exceptions and a general answer to the allegations as well as a reconventional and third party demand against New Era, Southern Title, Joseph Farley Dumas, Jr., and Tina and Tuan Dinh. In its reconventional and third party demand, the succession sought to have both the sale of the property from Junior Dumas to the Dinhs and the Quitclaim Deed executed by the Dinhs to New Era declared absolute nullities and ownership of the property returned to the succession. Further, the succession administratrix sought attorney fees and damages based on the third-party defendants' acts of bad faith and negligence.

In September of 2011, the succession moved for summary judgment, on the basis that both the May 16, 2008 sale of property and the July 18, 2008 Quitclaim Deed were absolute nullities. After a hearing, the trial judge granted summary judgment in favor of the succession, and dismissed New Era's petition for partition with prejudice. When New Era appealed that judgment, this Court affirmed the trial court's grant of summary judgment that both 2008 transactions of the Martin Drive property were absolute nullities. See New Era Dev. Corp. v. Robert , 12-304 (La. App. 5 Cir. 11/13/12), 105 So.3d 889. That judgment is now final.

Thereafter, on June 3, 2013, Ms. Robert moved to set the succession's reconventional and third-party demands for trial. In response, New Era filed a first supplemental and amended petition naming Junior Dumas as a defendant seeking damages and "return of sums not due." On March 21, 2014, Ms. Robert filed her "first supplemental and amended answer, reconventional demand, and third party demand" seeking damages for the actions of New Era and Southern Title through their agent, David J. Bourgeois, alleging that they intentionally conspired to fraudulently convert one-half of the succession's interest in the Martin Drive property. On August 7, 2014, Ms. Robert dismissed her claims against Southern Title. Shortly thereafter, Southern Title dismissed its pending appeal of a judgment in favor of Ms. Robert and the succession.

On November 25, 2014, Ms. Robert again moved to set the succession's remaining claims against New Era, the Dinhs, and Junior Dumas for trial. In response, New Era filed an exception of no right of action on the basis that Ms. Robert did not have standing as a succession representative to assert a claim for intentional infliction of emotional distress. The trial court granted New Era's exception and allowed Ms. Robert time within which to amend her petition. Meanwhile, on December 12, 2014, Ms. Robert moved for and was granted a preliminary default against Junior Dumas.

On March 24, 2015, Ms. Robert, in her individual capacity, filed a "second supplemental and amended answer, reconventional demand, and third party demand" naming New Era as defendant. In her demand, Ms. Robert sought damages for the emotional distress she suffered from New Era's conspiracy to convert succession property, as well as attorney fees and costs.

On June 20, 2017, New Era obtained a preliminary default judgment against defendant, Junior Dumas. The default judgment, in the sum of $37,572.00, plus interest and costs, was later confirmed.

Meanwhile, on September 5, 2017, Ms. Robert's reconventional demands against New Era and the Dinhs went to trial before the bench. Specifically, Ms. Robert, individually and as the succession administratrix, claimed that New Era is liable to her and the succession for filing a partition claim seeking ownership of Junior Dumas's interest in the succession property; for acquiring a quitclaim from the Dinhs as to their rights in the property; and for failing to disclose the civil suit filed by Southern Title against Junior Dumas to recover the funds paid while at the same time maintaining the partition suit.

After hearing testimony, the trial judge held the trial over to allow time for the parties to depose Derryl Bourgeois of Southern Title and to file post-trial memoranda. On November 17, 2017, the trial judge entered judgment in favor of New Era and the Dinhs and against Ms. Robert, individually and as administratrix of the succession, and dismissed Ms. Robert's reconventional demands and third party demands. In his reasons for judgment, the trial judge found that Ms. Robert failed to prove fraud on the part of New Era when it obtained a quitclaim deed from the Dinhs then attempted to partition the property. Further, the trial court found that Ms. Robert failed to establish a conspiracy between New Era and Southern Title to convert her interest in the property in question. Finally, the trial judge found that Ms. Robert failed to prove any damages, including lost rental or sale of the property or emotional distress to herself.

On November 27, 2017, Ms. Robert filed a motion for new trial, individually and on behalf of the succession, contending that the default judgment obtained by New Era against Junior Dumas is clearly against the law and the evidence as New Era only contracted with the Dinhs, not with Junior Dumas. On January 10, 2018, the trial judge granted Ms. Robert's motion for new trial with respect only to the confirmation of the preliminary default against Junior Dumas by New Era and vacated that default judgment for lack of privity. This appeal follows.

Law and Argument

On appeal, Ms. Robert contends that the trial judge erred in failing to find that New Era committed fraud in this case. In its answer to the appeal, New Era contends that the trial judge erred in vacating its final, default judgment against Junior Dumas and prayed for damages for a frivolous appeal and attorney fees for the appeal.

Jurisdictional Notes

Initially, New Era points out that Ms. Robert moved to appeal individually, not on behalf of the succession. Our review of the motion for appeal and several other motions filed in conjunction with that motion supports appellee's assertion that Ms. Robert filed an appeal individually, not on behalf of the succession. For that reason, we will address the issues raised on appeal by Ms. Robert in her individual capacity, which is that the trial court failed to find that New Era committed fraud and New Era's actions caused her emotional distress that resulted in damages to her.

Ms. Robert specifically contends that the trial judge erred in failing to find that New Era and Southern Title committed fraud. Ms. Robert asserts that New Era misrepresented the truth of the situation. First, Ms. Robert argues that, as a separate entity, New Era had no interest in making the Dinhs whole when it executed the Quitclaim Deed on the property with the Dinhs for $38,000.00. When the Quitclaim Deed was executed, Southern Title and the Dinhs were fully aware that Junior Dumas had only a one-half ownership interest in the property. Ms. Robert also points out that, in a petition filed in a separate civil action arising out of this action, Southern Title admitted that it (not New Era) "refunded the Dinhs their $38,000.00." Ms. Robert contends that the connection between New Era and Southern Title, which are owned by brothers and operate out of the same business address, and the obvious misrepresentations by both Southern Title and New Era create the nexus of the fraud allegation.

The Louisiana Civil Code defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." La. C.C. art. 1953. Fraud must be pled with particularity. La. C.C.P. art. 856. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art. 1957. A trial court's determination of whether fraud occurred is a question of fact and is subject to the manifest error standard of review on appeal. Succession of Schexnayder v. Schexnayder , 17-435 (La. App. 5 Cir. 5/30/18), 249 So.3d 995, 999.

The term "damages" refers to pecuniary compensation, recompense, or satisfaction for an injury sustained. General damages are those that may not be measured with any degree of pecuniary exactitude, are inherently speculative in nature, and cannot be fixed with mathematical certainty. See McGee v. A C and S, Inc ., 05-1036 (La. 7/10/06), 933 So.2d 770, 774. The term "general damages" includes those for mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. In re Medical Review Panel on Behalf of Laurent , 94-1661 (La. App. 1 Cir. 6/23/95), 657 So.2d 713, 722.

Generally, in the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the trier-of-fact. See La. C.C. art. 2324.1. Non-pecuniary damages for fraudulent acts can include recovery for mental anguish, aggravation, and inconvenience that the wrongful actions caused. See Meador v. Toyota of Jefferson, Inc ., 332 So.2d 433, 438 (La. 1976).

At trial, the judge heard testimony from Ms. Robert; David Bourgeois of New Era; and George Rennicker, counsel for Southern Title. Further, the parties introduced the deposition of Derryl Bourgeois of Southern Title. Here, although the testimony indicates that Ms. Robert felt cheated and betrayed, there was no testimony that the Bourgeois brothers acted in concert to defraud Ms. Robert of her ownership interest in the property at issue. Further, there was no testimony that Ms. Robert was unable to use and enjoy the property during the pendency of the suit. Furthermore, there was no evidence introduced to support Ms. Robert's claim for mental anguish, aggravation, and/or inconvenience. After hearing the testimony, the trial judge found that Ms. Robert had failed to establish fraud or conspiracy to commit fraud. Further, the trial judge found that Ms. Robert had failed to prove emotional damages in this case.

Under the manifest error standard, the reviewing court does not determine whether the trier of fact was right or wrong, but whether its conclusion was a reasonable one. Stobart v. State, through Dept. of Transp. and Dev ., 617 So.2d 880 (La. 1993). Findings based on credibility determinations are entitled to great deference. Foley v. Entergy Louisiana, Inc ., 06-0983 (La. 11/29/06), 946 So.2d 144. Where conflict exists in the testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Stobart, supra ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Our review of the appellate record reveals no manifest error in the trial court's findings. Accordingly, we find that this assignment of error lacks merit.

Answer to Appeal

In its answer to the appeal, New Era specifically questions Ms. Robert's standing to move for a new trial of its default judgment against her brother. New Era contends that its judgment against Junior Dumas, which was confirmed on September 12, 2017, was final well before Ms. Robert filed her motion for new trial on November 27, 2017. Upon review of this factual scenario, we do not need to reach the issue of standing or timeliness.

"When a judgment is absolutely null based on a jurisdictional ground, it has no legal existence, and its nullity may be shown in collateral proceedings at any time and before any court." Champagne & Rodgers Realty Co. v. Guillot , 06-237 (La. App. 5 Cir. 11/14/06), 947 So.2d 39, 45.

Here, there was no contract between New Era and Junior Dumas. Southern Title, which closed the fraudulent sale by Junior Dumas that was later found to be a nullity, might have had an actionable claim against Junior Dumas. However, New Era has taken great pains to distinguish itself as a separate legal entity from Southern Title. Because New Era was not a party to the original sale, it has no claim against Junior Dumas. Thus, New Era's default judgment against Junior Dumas was an absolute nullity under La. C.C.P. art. 2002(A)(2). Accordingly, on our own motion, we find that New Era's default judgment against Junior Dumas is an absolute nullity and vacate that default judgment as a nullity.

In addition, New Era, in its answer, sought damages for a frivolous appeal as well as costs and attorney fees, pursuant to La. C.C.P. art. 2164. "The court may award damages for frivolous appeal in civil cases as provided by law." U.R.C.A. Rule 2-19. La. C.C.P. art. 2164 authorizes an appellate court to award damages for a frivolous appeal. However, the supreme court has explained that damages are not allowed unless the appeal is "unquestionably frivolous[.]" Hampton v. Greenfield , 618 So.2d 859, 862 (La. 1993).

"Damages for frivolous appeal are only allowed when 'it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates even though the court is of the opinion that such view is not meritorious.' " Id. Further, this provision is penal in nature and is to be strictly construed. Treme v. Adams , 10-554 (La. App. 5 Cir. 1/11/11), 59 So.3d 1278, 1282.

In this case, while unsuccessful, we do not find that Ms. Robert's appeal rises to the level of "unquestionably frivolous." Accordingly, we decline to award damages. See In re J. L. C. K. , 17-496 (La. App. 5 Cir. 1/16/18), 238 So.3d 559, 566.

Decree

For the foregoing reasons, we affirm the trial court's holding in favor of New Era and against Ms. Robert. Further, we vacate New Era's default judgment against Junior Dumas as a nullity. Costs of this appeal are assessed entirely against New Era.

AFFIRMED; DEFAULT JUDGMENT VACATED .

      New Era Dev. Corp. v. Robert , 12-304 (La. App. 5 Cir. 11/13/12), 105 So.3d 889 ; New Era Dev. Corp. v. Robert , 14-526, was dismissed on August 20, 2014 on the appellant's motion.

      The property, which has a municipal location of 1101 Martin Drive in Marrero is legally described as:
      THAT CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in the Parish of Jefferson, State of Louisiana, being a resubdivision of a plan of Lots 11 and 12 Ames Farms, Section "B," and designated as KINGS MANOR SUBDIVISION, Ordinance # 8910 by the Jefferson Parish Council, dated August 22, 1968, and according to the survey of J. J. Krebs & Sons, Inc., dated July 22, 1068, [sic ] said lot is designated as follows, to-wit: Lot 1, Square 1

      On April 28, 2010, Junior Dumas pled guilty to one count of forgery, in violation of La. R.S. 14:72, in Twenty-Fourth Judicial District Court case number 09-3967. That day, the trial judge sentenced him to three years imprisonment, which Junior Dumas served.

      A copy of the Cash Sale at issue in this case was attached to the original petition brought by New Era. The document, dated May 16, 2008, indicated a transfer of Lot 1, SQ1, Kings Manor S/D, 1101 Martin Drive, Marrero, LA 70072 by Joseph Farley Dumas, Sr. to Tina Dinh and Tuan Dinh for the contract price of $38,000.00. The signature of the seller that appears on the document is "Joseph Farley Dumas, Sr." and the signature of the buyer is Tuan Dinh. The document was witnessed and notarized by George S. Ruppenicker of Southern Title, Inc.

      Initially, David Bourgeois testified that he is an abstracter for Southern Title and his brother, Derryl Bourgeois, was the sole owner of Southern Title. However, when confronted with disclosure of ownership documents from the Louisiana Secretary of State, David Bourgeois admitted that he has an ownership interest in Southern Title. David Bourgeois further admitted that he is the sole owner of New Era Development Company, a business that owns between 25 to 30 properties in Orleans Parish and Jefferson Parish.

      On August 1, 2008, Southern Title filed suit for damages against Junior Dumas and the supermarket where he cashed the $38,000 check. Southern Title, Inc. v. Joseph Farley Dumas Jr., et al , Twenty-Fourth Judicial District Court case number 662-772. That suit was not pursued and is now abandoned.

      As noted in fn. 1, infra , New Era Dev. Corp. v. Robert , 14-526 was dismissed on the appellant's motion.

      Ms. Robert as succession administratrix was again granted a preliminary default against her brother, Junior Dumas, on November 16, 2016. During trial on September 5, 2017, upon Ms. Robert's motion, the trial judge confirmed the default judgment for $37,000.00 against Mr. Dumas. Subsequently, on February 15, 2018, Ms. Robert, on behalf of the succession, obtained a default judgment against Junior Dumas for $56,487.85, plus interest and costs.

      New Era's default judgment was confirmed during trial on September 5, 2017 and in writing on September 11, 2017. As noted above, Ms. Robert's default judgment was confirmed during trial on September 5, 2017.

      If New Era had admitted to a legal relationship with Southern Title, it may have had a claim against Junior Dumas. However, that relationship could also open both entities up to allegations of collusion and/or fraud.


author: WINDHORST, J.

text:
    Norman BONCK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Linda M. Crockem
    NO. 18-CA-446
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, NORMAN BONCK, William R. Mustian, III
    COUNSEL FOR DEFENDANT/APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND LINDA M. CROCKEM, Sandra K. Cosby
    COUNSEL FOR DEFENDANT/APPELLEE, ALLSTATE INSURANCE COMPANY, James A. Stapp
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
   WINDHORST, J.

Appellant/plaintiff, Norman Bonck, appeals the trial court's May 7, 2018 judgment in favor of appellees/defendants, Linda Crockem, State Farm Mutual Automobile Insurance Company, and Allstate Insurance Company, dismissing appellant's claims with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

On October 23, 2014, after exiting the Wal-Mart located on Loyola Drive, appellant was allegedly waiting in the median to turn left (southbound) when he was struck by Ms. Crockem's vehicle, which was traveling in the left southbound lane on Loyola Drive. As a result, appellant allegedly sustained injuries. On October 20, 2015, appellant filed a petition for damages against Ms. Crockem and her insurer, State Farm. In a supplemental petition for damages, appellant added his underinsured motorist insurer, Allstate, as an additional defendant. On April 5, 2018, the matter proceeded to a judge trial.

At trial, appellant testified that on October 23, 2014, at approximately "6:30, 6:45-ish" P.M, he was leaving the Wal-Mart on Loyola Drive and heading home. Upon exiting the parking lot, he crossed the three northbound lanes and stopped in the median where he was waiting to turn left onto the southbound lane of Loyola Drive. There were three southbound lanes at this intersection, the far left lane being the left turn lane. He testified that he "[c]hecked the main lanes of travel going southbound, and as I was crossing I heard (sound) noise that startled me. I looked back to the right as I heard that noise and boom, the accident happened. I was looking straight into Miss Crockem's eyes." Appellant testified that at the point of impact, he was stopped in the median and his vehicle was "[p]erfectly straight, perpendicular" with the intersection, but conceded he was not looking in the direction that the traffic was coming, including the turning lane. He testified that his foot was on the brake when Ms. Crockem's vehicle struck his vehicle. In support of his testimony, appellant submitted into evidence video surveillance of the accident.

Ms. Crockem testified that the night of the accident she was traveling on Loyola Drive going to Subway, which is about a block further up the road from Wal-Mart. It was dark outside and she was in the left lane closest to the median, but she was not in the left turn lane. Ms. Crockem testified that she did not see the accident occur, she only remembers that appellant ran up to her vehicle afterwards and said "Miss, Miss, are you all right? I'm so sorry. I'm so sorry. I didn't see you." At that point, she looked back and saw appellant's vehicle. She testified that her vehicle was damaged from the driver's door to the back door and there was no damage to the front of her vehicle. She stated that she "[n]ever" entered the left turn lane that leads to Wal-Mart.

Officer Brian Fogarty with Kenner Police Department testified that after interviewing both parties and the damage to the vehicles, he issued a citation to appellant for failure to yield when coming from a private driveway. Appellant testified that while he received a citation after the accident, the citation was subsequently dismissed.

Discussion

On appeal, appellant contends that the trial court erred in finding that he, and not Ms. Crockem, was at fault for the accident, and for failing to award him damages as a result thereof.

A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong. Allerton v. Broussard, 10-2071 (La. 12/10/10), 50 So.3d 145, 146-147, reconsideration denied, 10-2071 (La. 1/28/11), 56 So.3d 974. Under the manifest error standard, in order to reverse a trial court's finding of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the trier of fact is clearly wrong or manifestly erroneous. Id. at 147. Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the reviewing court may feel that its own evaluations and inferences are more reasonable. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 7/1/11), 65 So.3d 1218, 1231 ; Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).

The trial court found that appellant's testimony regarding his actions prior to the accident were accurate. However, immediately prior to impact , appellant "did not have his foot on the brake as he testified and thus crossed into [Ms. Crockem's] lane of travel, striking [Ms. Crockem's] vehicle." The trial court further found that the photographic evidence of the parties' vehicles, particularly the damage to Ms. Crockem's vehicle, corroborated a finding that "it would be impossible for [Ms. Crockem] to have sideswiped [appellant's] vehicle and created only such localized damage to her vehicle. The damage to [Ms. Crockem's] vehicle is consistent with being impacted directly on the driver's side by the front passenger side of [appellant's] angled vehicle."

We have painstakingly viewed the surveillance video frame by frame, and we find no error in the observation and reasoning of the trial court. We also find persuasive, as did the trial court, that the damage to Ms. Crockem's car was in a section toward the middle of its left side, beginning near and below the left side-view mirror. The damage began relatively far from the front left corner of her car, which supports her version of how the accident occurred, and makes appellant's version unfeasible. We also note that while appellant characterized the position of his truck as in the "median," he was in fact stopped in and perpendicular to the turning lane, which Ms. Crockem's car had a right to enter. Lastly, the trial court saw the testimony firsthand, and was able to assess credibility and the weight to which the testimony was entitled.

After considering the testimony, as well as the entirety of the evidence, including the video and photographic evidence of the scene of the accident and the location of the damage to each of the parties' vehicles, the trial court clearly believed Ms. Crockem's testimony over appellant's, finding that appellant moved into appellee's lane of travel causing the accident.

Conclusion

Accordingly, we conclude that the trial court was not manifestly erroneous or clearly wrong in finding that appellant was at fault for the accident. For the reasons stated herein, we affirm the trial court's May 7, 2018 judgment.

AFFIRMED

      The parties stipulated that State Farm provided Ms. Crockem with coverage in the amount of $25,000 for bodily injury and property damage.

      The parties stipulated that Allstate provided underinsured motorist coverage to appellant in the amount of $15,000.

      The trial court's written judgment stated that the accident occurred at 7:30 P.M.; however, the surveillance video showed that the accident occurred at 7:43 P.M.

      In her reasons for example, the trial judge included that Ms. Crockem was emphatic that she did not veer into the turning lane.


author: WICKER, J.

text:
    Francesca M. LAPUYADE v. RAWBAR, INC. D/B/A Acme Oyster House
    NO. 18-CA-474
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, FRANCESCA M. LAPUYADE, Michael R. Allweiss, New Orleans, Marynell L. Piglia, New Orleans.
    COUNSEL FOR DEFENDANT/APPELLEE, JFC INTERNATIONAL, INC., Helen M. Buckley, David R. Frohn
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
   WICKER, J.

This is a tort case in which Appellant, Francesca Lapuyade, seeks review of the trial court's June 1, 2018 judgment granting Appellee's, JFC International, Inc., (JFC), motion for summary judgment and dismissing Appellant's claims against JFC. For the following reasons, we affirm the trial court's judgment.

FACTS & PROCEDURAL HISTORY

The Appellant and Appellee have previously sought this Court's review regarding a different set of procedural issues stemming from the same facts, portions of which have been reiterated below.

On October 10, 2012, Appellant filed suit against Acme Oyster House ("Acme") alleging she contracted Salmonella poisoning after eating a lettuce wedge with blue cheese dressing and artichoke soup at its establishment located on Veterans Blvd. in Metairie, Louisiana on May 6, 2012. She alleged that she became ill the day after eating at Acme and was admitted to East Jefferson General Hospital on May 9, 2012, where she remained for eight days before being discharged on May 17, 2012. Appellant asserted Acme was negligent in failing to properly store, handle and prepare the food it served to its customers. Acme answered the lawsuit on December 6, 2012, denying all allegations.

On April 2, 2014, Appellant amended her petition to add Little Tokyo Restaurant, Inc. ("Little Tokyo"), Moon Marine USA Corp. ("Moon Marine"), and their insurers as defendants. In the amended petition, Appellant alleged that she had dined at Little Tokyo restaurant located on N. Carrollton Ave. in New Orleans on April 29, 2012. She alleged that although her treating doctor originally believed the source of her food poisoning was Acme, which he noted in her medical records, her treating doctor thereafter indicated for the first time in October 2013, that there had been a Salmonella outbreak at the time Appellant became sick that had been traced to a product called "Tuna Scrape." Appellant asserted that the source of this Tuna Scrape was Moon Marine, which had distributed its product to Little Tokyo.

Appellant again amended her petition on June 26, 2015, adding JFC International, Inc. ("JFC"), appellee herein, as a defendant. Appellant alleged that JFC is an entity which purchased Tuna Scrape from Moon Marine and sold and distributed the product to various restaurants, including Little Tokyo. Appellant further alleged that JFC was advised by Moon Marine in April 2012 to contact the accounts to which JFC distributed Tuna Scrape on behalf of Moon Marine, and inform them that the Tuna Scrape had been recalled because an FDA investigation revealed the tuna was potentially contaminated with Salmonella. Appellant asserted that JFC failed to notify Little Tokyo of the recall, which occurred prior to her dining at Little Tokyo and becoming ill.

On February 9, 2015, Moon Marine filed an exception of prescription asserting that Appellant's petition against it was prescribed on its face, as it was not filed within one year from the date of loss. Thereafter, JFC and Little Tokyo filed their own exceptions of prescription, adopting Moon Marine's position.

After a hearing on Moon Marine, JFC, and Little Tokyo's exceptions of prescription, the trial court sustained the exceptions and dismissed Appellant's claims against the defendants with prejudice. Appellant appealed and on April 13, 2016, this Court reversed the trial court's decision and remanded the case for further proceedings.

On March 6, 2018, JFC filed a motion for summary judgment seeking to have Appellant's claims against it dismissed with prejudice. In its motion, JFC alleged that on April 4, 2012, it delivered Moon Marine's Tuna Scrape to Little Tokyo, and on April 13, 2012, Moon Marine advised JFC of the product's recall for suspected Salmonella contamination. JFC further alleged that on April 16, 2012, it contacted Little Tokyo to "quarantine the recalled Tuna Scrape and make arrangements for it to be collected and returned to Moon Marine." On this same day, JFC alleged that Little Tokyo informed JFC that it no longer had any of the recalled Tuna Scrape in stock. JFC's motion then reiterated Appellant's claim that she dined at Little Tokyo Restaurant in New Orleans on April 29, 2012, became ill on May 7, 2012, and was hospitalized and treated for Salmonella poisoning from May 9 to 17, 2012.

In providing the aforementioned timeline, JFC argued that it timely discharged its legal obligations with respect to the contaminated Tuna Scrape on April 16, 2012, when it contacted Little Tokyo, and that Appellant had no claim against JFC for her Salmonella food poisoning. In a subsequent memorandum in support of JFC's motion for summary judgment, which was filed on the same day as the motion, JFC argued that it discharged any duty it may have owed Appellant by "declaring the defect in the tuna" to Little Tokyo once it was advised of the defect by Moon Marine and cannot be held responsible for Little Tokyo's negligence.

On March 13, 2018, the trial court set a hearing for May 10, 2018, to show cause why JFC's motion for summary judgment should not be granted. Thereafter, the parties filed other motions not relevant to this opinion which resulted in the matter being continued to May 23, 2018. On May 7, 2018, Appellant filed a memorandum in opposition to JFC's motion for summary judgment in which she argued that although JFC advised Little Tokyo by telephone of a recall, JFC failed to inform Little Tokyo of the reason for the recall and failed to provide the specific notice recommended by Moon Marine.

At the May 23, 2018 hearing, the trial court heard JFC's motion for summary judgment and several other unrelated motions. In a judgment rendered June 1, 2018, the trial court granted JFC's motion for summary judgment and dismissed Appellant's claims against JFC with prejudice.

DISCUSSION

This tort case involves the distribution and selling of Tuna Scrape which Appellant alleges caused her to become very ill and led to her hospitalization for eight days. Appellant appeals the Twenty-Fourth Judicial District Court's judgment granting Appellee's (JFC) motion for summary judgment and dismissing Appellant's claims against JFC with prejudice. Appellant's sole assignment on appeal is that the trial court erred in granting JFC's motion for summary judgment in that there exists a material issue of fact regarding whether JFC breached its duty to Appellant by failing to advise Little Tokyo of the specific defect in the tuna or the potential dangers associated with the product and failing to provide the specific notice recommended by the manufacturer, Moon Marine. For the following reasons, we affirm the trial court's judgment and find that the trial court did not err in granting JFC's motion for summary judgment.

Appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Crosby v. Wal-Mart Stores, Inc. , 10-1015 (La. App. 5 Cir. 6/14/11), 67 So.3d 695 citing Landreneau v. Copeland's Cheese Cake Bistro, L.L.C. , 08-647 (La. App. 5 Cir. 1/13/09), 7 So.3d 703. Therefore, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether mover is entitled to judgment as a matter of law. Chambers-Johnson v. Applebee's Rest. , 12-98 (La. App. 5 Cir. 9/11/12), 101 So.3d 473, 476, citing Matthews v. Banner , 08-339 (La. App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment should 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). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). The initial burden of proof lies with the mover to show that no genuine issue of material fact exists. However, when a motion for summary judgment has been filed and supported by evidence, the adverse party may no longer rely on the mere allegations or denials of his pleadings, but his response, through affidavits or otherwise, must set forth evidence demonstrating that there is a genuine issue for trial. La. C.C.P. art. 967(B) ; Fuggins v. Burger King , 33,473 (La. App. 2 Cir. 5/10/00), 760 So.2d 605.

On May 23, 2018, the trial court held oral arguments on JFC's motion for summary judgment and after hearing arguments from both Appellant and Appellee found:

[...] no genuine issues of material fact exist concerning whether or not JFC International Inc. breached any duty owed to the Plaintiff, and that JFC International Inc. timely notified Little Tokyo Restaurant Inc. of the recall at issue in this matter.

In appealing the trial court's ruling, Appellant argues that there is a material issue of fact in that the undisputed material facts demonstrate that JFC breached its duty to her by failing to advise Little Tokyo of the specific defect in the tuna or the potential dangers associated with the product and failing to provide the specific written notice recommended by the manufacturer, Moon Marine.

Appellant argues that JFC's failure to provide Little Tokyo with "specific documentation" per the recommendation of Moon Marine demonstrates its breach of its duty to Appellant to specifically inform Little Tokyo that the recall was necessitated because the tuna was contaminated with Salmonella.

In support of her argument, Appellant points to language in the recall notice issued by Moon Marine to JFC on April 12, 2012, which identified the tuna and informed JFC that it was potentially contaminated with Salmonella. The notice also identified the effects of Salmonella as causing "serious and sometimes fatal infections in young children, frail and elderly people, and others with weakened immune systems," and indicated that Moon Marine shipped 100 cases of the possibly affected tuna to JFC. The notice and key focus of Appellant's argument stated:

If you have distributed any of this ground tuna, please immediately contact your accounts, (we suggest that you utilize the same recall letter language and response card, as we are providing), advise them of this recall situation, and have them return their outstanding recalled stocks to you.

Attached to the notice was a "Recall Return Response Form," which requested the individual completing the form to acknowledge that he or she understood the recall instruction provided on April 12, 2012, had checked stock and quarantined infested packages, and "have identified and notified my customers that were shipped or may have been shipped this product on the following date [space provided], by e-mail, FAX, visit."

The deposition testimony attached to JFC's motion for summary judgment reflects that JFC telephoned Little Tokyo to notify it of the recall. Appellant argues that JFC's phone call to Little Tokyo was insufficient in that "nowhere did Moon Marine suggest to JFC that a telephone call, much less a telephone call with no detail, would be sufficient notification." We find this claim to be without merit as we do not consider the three modes of communication provided by Moon Marine (i.e. e-mail, fax, or visit) to be the only means by which a distributer could effectively and properly notify a possibly affected party of the contaminated tuna. Nowhere in Moon Marine's notice does it mandate a specific form of notification be given to JFC's clients; instead, Moon Marine suggests that certain language be used when informing clients of the potential Salmonella infested tuna. Given the severe nature of the side-effects of Salmonella, it stands to reason that a distributor would use the quickest mode of communication available to inform its clients of the defective tuna.

The intention of the recall notice is to make possibly affected parties aware of the existence of a defect in a product and prevent it from affecting consumers. Here, JFC informed Little Tokyo of the existence of a possible defect in the food delivered by JFC. The owner of Little Tokyo testified that, although JFC failed to expressly identify the exact defect in the Tuna Scrape, he recognized the serious nature of the recall and began the process of identifying the defective tuna. He thereafter relayed to JFC that he did not have any of the defective product.

During the July 14, 2017 deposition of Mr. Kawahara, the owner of Little Tokyo, he testified that Mr. Takeda, a sales representative of JFC, called him by phone. Mr. Kawahara stated:

I got phone call from a salesman JFC and I check and I called restaurants if they have that particular box. I remember that, because it was like a very serious thing, so I call everybody. They don't have any box. I check with Asian Gourmet freezer, we don't have any more, so that's it. [sic]

After being questioned about the existence of the contaminated tuna at Little Tokyo despite Mr. Kawahara's claim to Mr. Takeda that there was none, Mr. Kawahara stated:

No. JFC, they do use so many companies to get all the tuna, grounded tuna, and we check because certain boxes had that name or whatever it is. And we had some other box that was the other company's name. It's not only one company's.
* * *
I check, we do not have, so we are not sure we use the box. I'm not sure - I'm not sure we had that box. I'm not sure they send us that box, because we have so many companies' box. [sic]

Mr. Kawahara testified that it took him about an hour from Mr. Takeda's call to check the warehouse, call his other restaurant locations and have his employees check for the tuna and return Mr. Takeda's call.

Specifically, regarding the phone conversation between Mr. Takeda and Mr. Kawahara, he stated:

Q: Right. What do you remember about the phone conversation with Mr. Takeda?
A: He said check this companies and he say this a recall and that's it.
Q: Did he say why?
A: It's a recall.
Q: Did he tell you why it was recalled?
A: No. He said recall.
Q: That's all he said?
A: Yes.
Q: Did you ask him why it was recalled?
A: To me recall is recall. I don't know what's --

This exchange indicates that while Mr. Takeda did not specifically inform Mr. Kawahara of the exact reason for the recall, Mr. Kawahara was well aware of its importance. After receiving the phone call from Mr. Takeda, Mr. Kawahara not only checked the warehouse he uses to store the Tuna Scrape, but contacted all of his stores and was informed by his employees that there was no Tuna Scrape at which point he contacted JFC's representative, Mr. Takeda, and informed him that there was no possibly infected Tuna Scrape at his store.

Since JFC orally received notice from Little Tokyo that there was no Tuna Scrape at any of its locations, it stands to reason that JFC would not send Little Tokyo a letter requesting the return of the recalled Tuna Scrape, which Little Tokyo stated it did not possess. Therefore, the trial court did not err in granting summary judgment in favor of JFC.

Inconsistent Results

Appellant further argues that the dismissal of JFC on summary judgment engenders a seriously inconsistent result in that the jury is free to consider Moon Marine's fault, but not allowed to consider the fault of JFC.

A jury may consider Moon Marine's liability in the present case because they settled with Appellant. See Castay v. ADM Growmark River Sys. , 00-1489 (La. App. 5 Cir. 3/14/01), 785 So.2d 47 ; Abadie v. Metro. Life Ins. Co. , 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46. They were, unlike JFC, not dismissed by way of summary judgment. However, as a matter of law the liability of a party in whose favor summary judgment is granted cannot be considered at trial. La. C.C.P. art. 966(G) states:

When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party's fault be submitted to the jury or included on the jury verdict form.

We find that the release of JFC's liability as a result of summary judgment does not produce inconsistent results in that JFC satisfied the duty it owed to Appellant when it notified Little Tokyo of the recalled Tuna Scrape and was informed by Little Tokyo that none existed at any of its locations. The granted summary judgment is a finding that JFC is free from fault.

Conclusion

The trial court did not err in granting summary judgment to Appellee, JFC International, Inc., in that it notified Little Tokyo of a defective product and was informed that the product was not at any of Little Tokyo's locations. Accordingly, we affirm the trial court's judgment.

AFFIRMED

      See Lapuyade v. Rawbar, Inc. , 15-705 (La. App. 5 Cir. 4/13/16), 190 So.3d 1214. (Appellant in this matter, Francesca Lapuyade, sought this Court's review regarding prescription and evidentiary issues.)

      Acme subsequently filed a motion for summary judgment that was granted on July 21, 2015, resulting in appellant's claims against Acme being dismissed with prejudice. Appellant initially appealed this judgment; however, in her appellate brief, Appellant indicated that she no longer wished to appeal the granting of summary judgment in favor of Acme and did not raise any assignments of error relating to the judgment.

      The official name of the tuna is Nakaochi Tuna Scrape AA or AAA ("Tuna Scrape").

      See Lapuyade, supra n.1.

      In its statement of uncontested material facts, JFC specifically states, "In response to the Moon Marine notice, and using his cell phone, Mr. Takeda [from JFC] telephoned Little Tokyo's owner, Mr. Yusuke Kawahara...[and] advised Little Tokyo's Mr. Kawahara about the recalled Tuna Scrape."

      The record does not reflect what occurred at the May 10, 2018 hearing.

      The court set a hearing for May 23, 2018, to show cause as to why a reasonable fee for the deposition of Dr. Cousins should not be set.

      The May 23, 2018 hearing consisted of Appellant's and Little Tokyo's motion for partial summary judgment, Appellant's motion to set reasonable fee, Little Tokyo's motion to exclude or limit the testimony of William Olge, and JFC's motion for summary judgment.

      Appellant submitted several notices mailed by JFC to other parties identifying the tuna being recalled, informing them of the Salmonella contamination and side-effects, and requesting that the items be returned to JFC, as evidencing their knowledge of what was required to satisfy its duty. The record does not reflect that JFC mailed notice of the recall to Little Tokyo. However, we find that JFC was not mandated to use only one form of communication to inform consumers of the potentially contaminated tuna.