author: Judge Terri F. Love

text:
    STATE of Louisiana v. Conell GALLE
    NO. 2019-K-0043
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 20, 2019
    Sheila C. Myers, 700 Camp Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT/RELATOR, CONNELL GALLE
    Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Kyle Daly, Assistant District Attorney, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR RESPONDENT, STATE OF LOUISIANA
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Terri F. Love

This application for supervisory review arises from defendant's application for post-conviction relief, which the trial court denied. After review based on defendant's assertions of ineffective assistance of counsel, we find that defendant failed to meet to the burden outlined in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As such, the trial court did not err in denying his application for post-conviction relief. The writ is granted, but relief is denied.

PROCEDURAL HISTORY

Relator, Conell Galle, and his codefendant, Allen Scott (hereinafter "Defendants"), were jointly charged with two counts each of attempted second-degree murder and one count each of possession of a firearm by a convicted felon. The trial court denied Mr. Galle's motion in limine to have grand jury testimony of victim, Thomas Williams, who was allegedly unavailable as a trial witness, read into the record. This Court denied Mr. Galle's writ application seeking review of that decision. Following a trial by a twelve-person jury, Defendants were found guilty as charged of the attempted second degree murder of Nykeisha Jackson (count one); not guilty as to attempted second degree murder of Mr. Williams (count two); and guilty as charged of possession of a firearm by a convicted felon.

Mr. Galle was sentenced on count one to forty years at hard labor and on count three to ten years at hard labor, both sentences to be served consecutively and without benefit of parole. On appeal, this Court affirmed Mr. Galle's convictions and sentences. The matter was remanded for imposition of the mandatory fine as to count three. Mr. Galle challenged the denial of his motion in limine to have the grand jury testimony of Mr. Williams read into the record. State v. Galle, et al. , 11-0930 (La. App. 4 Cir. 2/13/13), 107 So.3d 916, writ denied , 13-0752 (La. 10/30/13), 124 So.3d 1102.

Subsequently, Mr. Galle filed a counseled application for post-conviction relief asserting two claims: 1) the grand jury testimony of Mr. Williams should have been presented to the jury; and 2) that he was entitled to an evidentiary hearing. On the same day, Mr. Galle filed a pro se application for post-conviction relief asserting two claims: 1) ineffective assistance of counsel for failing to object to an erroneous jury instruction regarding attempted second degree murder and the corresponding responsive verdicts; and 2) he was denied his constitutional right to confront his accuser because the victim, Mr. Williams, did not testify.

The trial court issued a judgment denying Mr. Galle's application for post-conviction relief. Mr. Galle sought supervisory writs from this Court, which were denied. State v. Galle , 15-0584, unpub. (La. App. 4 Cir. 8/20/15). The Louisiana Supreme Court initially denied writs, but then granted reconsideration, vacating the trial court's ruling and remanding the matter to the trial court for an evidentiary hearing. State v. Galle , 15-1734 (La. 3/13/17), 212 So.3d 1164. The Supreme Court stated:

The district court's ruling denying post-conviction relief is vacated and the matter is remanded to the district court for an evidentiary hearing to determine whether exclusion of the grand jury testimony at trial, which the state disclosed before trial pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), impeded relator's fundamental right to present a defense and whether trial counsel rendered ineffective assistance with regard to litigating the admissibility of this evidence and demonstrating its importance to the defense. Notwithstanding that the Fourth Circuit on direct review found no error in the trial court's ruling excluding the grand jury testimony, see State v. Galle , 11-0930 (La. App. 4 Cir. 2/13/13), 107 So.3d 916, writ denied , 13-0752 (La. 10/30/13), 124 So.3d 1102, and the procedural bar against repetitive claims, the interest of justice requires revisiting these issues in a case in which relator's defense was that the state's sole eyewitness misidentified him and the state parted the usual cloak of secrecy which surrounds grand jury proceedings to disclose the testimony at issue because it directly contradicted that eyewitness account. See La.C.Cr.P. art. 930.4(A) ; see also State v. Galle, supra (Lombard, J., dissenting); see generally Stewart v. Wolfenbarger , 468 F.3d 338, 357 6th Cir. 2006), as amended on denial of reh'g and reh'g en banc (Feb. 15, 2007) (finding prejudice as a result of the exclusion from trial of exculpatory evidence that "went to the very heart of Petitioner's defense.").

Galle , 15-1734, pp. 1-2, 212 So.3d at 1165.

The trial court conducted an evidentiary hearing on Mr. Galles' application for post-conviction relief and denied his application. Mr. Galle's present application for supervisory review followed.

FACTUAL BACKGROUND

We previously summarized the facts surrounding Mr. Galle's alleged crimes in his previous appeal as follows:

The matter went to trial on March 14, 2011. During the three-day trial before a twelve-person jury, the following evidence was adduced. Among the State's witnesses were Ms. Jackson and the NOPD officers involved in the investigation. The State did not present Mr. Williams as a witness.
New Orleans Police Department Officer George Jackson was qualified by joint stipulation as an expert in the taking, examination, and comparison of fingerprints. Officer Jackson testified that he had taken defendant Scott's fingerprints in court the previous day. He matched those known fingerprints of defendant Scott to fingerprints on an arrest register, a bill of information, and a plea of guilty form evidencing what the officer said was Scott's 2006 conviction for illegal discharge of a firearm. Similarly, Officer Jackson testified that he had taken defendant Galle's fingerprints in court the previous day. He matched those known fingerprints to documents evidencing Galle's arrest and 2004 conviction for possession of cocaine.
The audio recordings of the 911 calls received in the early hours of March 21, 2009, two reporting gunshots and one reporting a person having been shot, were identified by Gesielle Roussel, the NOPD division supervisor and custodian of 911 audio recordings, and played for the jury. Ms. Roussel also identified the incident recall dated March 21, 2009, at approximately 4:23 a.m., from General Taylor and Loyola Streets, pertinent to the 911 calls and confirmed that at no point during any of the three calls was the alleged shooter identified.
Officer Vara testified as to his role in the events of March 21, 2009, stating that at approximately 4:20 a.m., he and his FTO were dispatched to the 2200 block of General Taylor Street as a result of 911 calls of gunshots. Upon turning onto General Taylor Street, Officer Vara saw the male later identified as Mr. Williams standing in the street covered in blood from a gunshot wound to the neck. In addition, as he approached the residence at 2204 General Taylor Street, Officer Vara observed the female later determined to be Ms. Jackson lying on the ground with a gunshot wound to her head and another one to her chest area. Inside the residence, Officer Vara observed blood on all the walls except the middle bathroom. He identified photos of the scene, which were subsequently admitted into evidence. Officer Vara testified that the victims described the perpetrators to him only as two black males and, although he spoke to neighbors, none of them witnessed the shootings. Officer Vara related that he and his FTO brought Mr. Williams into the residence and sat him down on a couch inside to await medical assistance. A crack pipe and a push rod were found in the residence, but Officer Vara was unaware of any arrests being made in connection with those items. He did not recall any weapons or spent cartridge casings being found inside the residence.
On cross-examination, Officer Vara indicated that the shootings occurred in the middle bedroom, the room in which drug paraphernalia and money were found. He based this conclusion on a neighbor's report of hearing gunshots fired in the center of the residence. Although Officer Vara was absent from the scene when it was processed, he confirmed that photographs of the middle bedroom showed a crack pipe and push rod, a ten-dollar bill and a five-dollar bill, a box of Arm & Hammer Baking Soda, and an open box of plastic sandwich bags. Officer Vara did not recall seeing a plastic bag inside a toilet, as depicted in a crime scene photograph, but stated that it could have been there at the time he was in the residence. When asked how blood had been spread throughout the residence, Officer Vara refreshed his recollection by referring to his police report and then stated that when Thomas Williams was shot in the neck, he ran into the back of the residence and then ran back to the front.
NOPD Crime Scene Technician Bessie Patrolia testified that she processed the crime scene and identified a copy of her report. She stated that although she took eleven blood samples from the crime scene, none were submitted for a laboratory exam nor (to her knowledge) were any DNA profiles generated from the blood samples. She did not collect any latent fingerprints from the scene or from any object at the scene, specifically a twenty-dollar bill recovered; a crack pipe; or the metal push rod. To her knowledge, no ballistics report had been generated regarding the one spent bullet collected by her.
Bobby Dickerson testified that he was then in custody in Washington Parish with charges pending against him and had a 1991 conviction for possession of crack cocaine. He stated that he did not want to be in court that day, that he did not want to participate in the trial in any way, and that he did not want to answer any questions the prosecutor asked of him. After being declared a hostile witness on motion by the State, Dickerson denied knowing either defendant but referred to Mr. Williams as "Uncle." Dickerson recalled meeting with Detective McGhee, the crime scene investigator, on the day of the incident and confirmed talking with him about what happened when Mr. Williams got shot, but insisted "they" coerced him to say those things. Dickerson confirmed that he and Mr. Williams had gone to Ms. Jackson's residence to purchase drugs. He further confirmed that when they got to the residence, he stayed in the car while Mr. Williams went into the residence to meet with Jackson. When asked whether "Duke" (later identified as Galle) and somebody else subsequently showed up at the residence, Dickerson said he did not know. When asked immediately thereafter whether, after Duke and the other person showed up, Duke and Ms. Jackson talked for a second, Dickerson replied that he did not know what they talked about inside.
When asked whether he saw Duke take out a gun and hand it to the other person, Dickerson said he did not see that happen. When asked whether he saw or heard Duke tell the other person to "lay that bitch down," Dickerson replied that he had not seen that, but had been coerced "to say all that what I just said in my first statement." When asked whether he had told Detective McGhee those things, Dickerson confirmed that he had, stating, "[h]e coerced me to say that." Dickerson said he was on narcotics at the time. Dickerson denied seeing Jackson get shot in her head. He denied seeing the person who was with Duke shoot Mr. Williams in the neck. Dickerson stated that he left after the shooting but returned to the scene to check on Mr. Williams. After Mr. Williams and Ms. Jackson were taken to the hospital, Dickerson met with Detective McGhee and told him "all of these things." He reiterated that he was coerced by the detective into saying what he did in his statement.
On cross-examination, Dickerson stated that he was parked across the street from Jackson's residence. He said the screen door on the residence was closed, and the porch light was off. It was around 4:00 a.m. or 5:00 a.m., and dark. Dickerson conceded he had been using drugs all night, "smoking and using heroin," and confirmed that the whole night was a blur to him. He replied in the affirmative when asked whether the recorded statement Detective McGhee said Dickerson made to him had been coerced and influenced by the detective. According to Dickerson, the detective talked to him before the recorded statement was made so he would know what to say on the recorded statement.
On redirect examination, Dickerson stated that he heard shots that morning, but did not know from where they came. He confirmed that he saw Williams with a gunshot wound to his neck.
NOPD Detective Nathan McGhee testified that when he responded to the shooting at 2204 General Taylor Street on March 21, 2009, he met with the two initial responding officers, one of whom was Officer Vara. When he entered the residence he observed the first victim, Ms. Jackson, lying on the floor of the living room with a gunshot wound to her head, one to her abdomen, and one to her leg. She appeared to be very near death. He also observed Mr. Williams sitting on a sofa holding a towel to a gunshot wound to his neck, which was bleeding profusely. Detective McGhee developed a suspect, "Duke," whom he later determined was defendant Galle. Detective McGhee testified that Mr. Williams was reluctant to say anything and provided no relevant information; he said Mr. Williams was just screaming for medical attention. Detective McGhee spoke to a witness named Freddie Davis, who told the detective he had been in the back of the residence when the shootings occurred. Davis did not witness the shootings; he only heard and saw one of the victims running to the rear of the residence.
Detective McGhee also spoke to Bobby Dickerson, who told him that he had observed a subject he knew as "Duke." Detective McGhee said Dickerson was cooperative and that Dickerson knew both victims. Dickerson said that he had dealings with Ms. Jackson in the past.
Dickerson worked with Mr. Williams and had come to the General Taylor Street residence in Mr. Williams' vehicle. After Detective McGhee developed defendant Galle as a suspect, he included his photo in a six-photo lineup and displayed it to Bobby Dickerson on March 24, 2009. Detective McGhee said this was the second time he had contact with Dickerson, the first time being the morning of the shootings. Detective McGhee said Dickerson came to him, presumably to a police station, to make the identification. After Dickerson identified Galle, Detective McGhee prepared an arrest warrant for Galle. When asked whether he told Dickerson who to pick out of the photo lineup, Detective McGhee said he had not, noting that Dickerson knew the subject and had had dealings with him in the past.
Detective McGhee testified that he met with Ms. Jackson on April 13, 2009, and showed her a photo lineup in which she identified defendant Galle who was known to her as "Duke." Detective McGhee stated that he did not force, threaten or coerce Ms. Jackson into identifying Galle or promise or give her anything in exchange for identifying him as the individual who handed the gun off to the shooter. Detective McGhee testified that he also learned on that date that Ms. Jackson could identify the individual who had fired the shots during the incident, although she did not know his name. She claimed to have been to that individual's residence in the company of defendant Galle. Detective McGhee testified that when Ms. Jackson was well enough, he picked her up with the assistance of the District Attorney's Office and brought her to a location where she pointed out an apartment in the Willowbrook Apartments where the shooter had been present. He later confirmed on cross-examination that this had occurred on July 29, 2009. At the apartment complex, Ms. Jackson described for the detective a female who lived in the apartment. Detective McGhee subsequently set up surveillance with another detective and observed the described female. He subsequently discovered that a male living in the apartment was defendant Scott. On August 3, 2009, Detective McGhee displayed a photo lineup to Ms. Jackson containing a photo of defendant Scott and she identified him as the shooter without Detective McGhee forcing, threatening, or coercing her, or promising or giving her anything in exchange. Detective McGhee identified the respective photo lineups shown to Ms. Jackson in which she identified defendants Galle and Scott. Detective McGhee testified that Ms. Jackson identified Scott as the shooter, the person to whom Conell "Duke" Galle had handed the gun. Detective McGhee identified Galle and Scott in court.
On cross-examination, Detective McGhee testified that when he displayed the photo lineup containing defendant Galle's photo to Ms. Jackson, he asked her if she recognized the person she knew as "Duke" in the lineup. The detective made no request for the testing of any blood samples because he had no information that either of the perpetrators had been injured. No testing was done on the bullet because, Detective McGhee said, police had no gun to link to the bullet. The detective confirmed that he met with Bobby Dickerson on three occasions: the day of the incident; the day following the incident; and on the date he displayed the photo identification to him. Detective McGhee said that Dickerson told him he and Mr. Williams stopped to purchase drugs on their way to work.
Under further cross-examination, Detective McGhee confirmed that Dickerson gave a description of one suspect as being 6'4?, weighing 180 pounds, while police reports in the case reflected that defendant Scott was 5'9?. Detective McGhee confirmed that there was no evidence connecting defendant Scott to the crime or to the crime scene except for the word of Ms. Jackson.
Warren Spears, the supervisor over property and evidence for the Office of the Clerk of Criminal District Court, testified that his job entailed maintaining evidence brought to the clerk's office by law enforcement, primarily the NOPD. He detailed the procedure.
Ms. Jackson identified a previously-admitted photograph of the General Taylor Street residence in which she resided on March 21, 2009. She stated that in the early morning hours of March 21, 2009, she was drinking and indulging in drugs, having begun doing so the night before, around 9:00 p.m. A friend, Freddie Davis, who lived out of town, came over around 10:30 or 11:00 p.m. to spend the night in a spare bedroom. Davis brought a six-pack of beer with him, but he did not consume any drugs with Jackson. Someone from the neighborhood she knew as "Thomas" knocked on her front door around midnight or 1:00 a.m. Ms. Jackson opened her iron security door, let Mr. (Thomas) Williams inside, and told him to lock the door. Ms. Jackson testified that she had already consumed drugs (she later stated that she had smoked crack cocaine earlier that day) and was no longer high, but was still drinking and was intoxicated.
Ms. Jackson said Mr. Williams related to her that he had seen Galle at a gas station earlier that day and that Galle had told him to come to her residence. Ms. Jackson knew Galle by the name "Duke" and she identified him in court. Ms. Jackson stated that she had known Galle for seven or eight months and that they had an on and off sexual relationship, but did not have a boyfriend/girlfriend relationship. She said Mr. Williams was seeking to purchase drugs from Galle. She telephoned Galle, who, upon being informed by Ms. Jackson that Mr. Williams was at her residence to purchase drugs, said: "Bitch, I already know that. Open up the door." When Ms. Jackson opened her interior door and exterior security door, she saw defendants Galle and Scott. She stated that although she did not know defendant Scott's name, he usually was with defendant Galle when she saw him and, in addition, she had spoken with Scott and been invited several times to "their" residence in Willowbrook Apartments in eastern New Orleans where she met Scott's girlfriend.
According to Ms. Jackson, after defendants Galle and Scott entered her residence in the early morning hours of March 21, 2009, she was standing in the front room with the defendants and Mr. Williams. Freddie Davis was still in the back bedroom. Ms. Jackson said she noticed that defendant Galle had rage in his eyes, questioning why Mr. Williams was in the house. She said Galle had a large firearm with a big drum (apparently meaning a large-capacity drum magazine) inserted into the firearm. Galle said to Mr. Williams: "Man, what the fuck you doing up in here?" Ms. Jackson said at that point to Galle: "What is he doing in here?" Ms. Jackson then said to Mr. Williams: "Didn't you tell me that he said for you to come here?" Mr. Williams replied in the affirmative, trying to explain himself to defendant Galle. Ms. Jackson said that at that point she was furious, and stated:
"Man, guess what? All y'all get the fuck up out my house."
Ms. Jackson testified that defendant Galle then removed a handgun from his waist, passed it to Scott, and told Scott, "Lay the bitch down." The next thing she knew, she was on the floor. She stated that she must have been out for a few seconds because she did not know what had happened. Unbeknownst to her at the time, she had been shot in the head. Her vision was blurred momentarily. When she regained it, Ms. Jackson observed Mr. Williams with blood spurting out of both sides of his neck. She said she did not remember being shot in the head or remember Mr. Williams being shot. She exclaimed: "Man, y'all done shot this nigger in my house." At that point, defendant Galle said to defendant Scott: "The bitch ain't dead. Man, this bitch ain't dead. Shoot her again." Ms. Jackson testified that defendant Scott then shot her in her chest, stomach, and one of her knees. She said she was still on the ground when that happened. Ms. Jackson said defendant Galle said to her: "See what you made me do, you bitch? You know I loved you." Galle and Scott then left the residence.
Ms. Jackson detailed the serious extent of her injuries resulting from the gunshots. She identified the clothing she wore on the morning she was shot, including a new wig she had purchased with money given to her by defendant Galle, along with a new stocking cap she had been wearing underneath the wig. She manipulated it to show a hole which she assumed must have been a bullet hole because the stocking had been brand new. She was shot four times. Ms. Jackson said she had probably been to doctors thirty or forty times for treatment related to her injuries and had been in and out of the hospital. She went to a neurologist for her head and another physician for treatment of her stomach and gastrointestinal problems. She was shot in the chest and stomach, and still had a bullet lodged in her abdomen, resulting in gastrointestinal problems, including bowel obstructions. She testified that half of her intestines had been removed and her liver repaired, and that she had staples from the top of her breastbone to her navel. She still had bullet fragments in her left knee. She had to learn how to walk all over again, and used a walker for two months.
Ms. Jackson identified a crack pipe that had been in her pants pocket that night, and an accompanying metal push rod. She remembered Detective McGhee being on the scene and checking on her. She implored him not to let her die. Ms. Jackson replied in the affirmative when asked whether she believed she was going to die. When asked whether she remembered talking to anyone else that night, she said she just remembered asking and pleading for Detective McGhee not to leave her and not to let her die. Once she got out of the hospital, towards the end of March or beginning of April, 2009, she met with Detective McGhee at her residence. She told him about defendant Galle, but did not know defendant Scott's name at the time. She identified defendant Galle, or "Duke," in a photo lineup presented to her by Detective McGhee. She said defendant Galle was the person who told defendant Scott to shoot her. She later met with Detective McGhee in July, when he presented her with a photo lineup in which she selected a photograph of defendant Scott as the person who shot her.
Ms. Jackson testified on cross-examination that she might have smoked four rocks of crack cocaine between 9:00 p.m. and 11:00 p.m. in the hours before the shootings, which occurred early the next morning. She confirmed that she had been drinking since approximately 3:00 p.m. or 4:00 p.m., having drunk two or three beers during an afternoon second-line parade and three beers from the six-pack that Freddie Davis had brought when he came over that night.
After deliberations, the jury found both defendants guilty as charged of the attempted second degree murder of Ms. Jackson, but not guilty as to the attempted second degree murder of Mr. Williams. In addition, both defendants were found guilty of being convicted felons in possession of a firearm.

Galle , 11-0930, pp. 2-13, 107 So.3d at 920-25.

INEFFECTIVE ASSISTANCE OF COUNSEL

Mr. Galle contends that the trial court erred in denying his application for post-conviction relief by (1) ruling that the exclusion of Mr. Williams' grand jury testimony did not impede Mr. Galle's fundamental right to present a defense; (2) ruling that Mr. Williams was not "unavailable" as a witness under La. C.E. article 804(A) ; and (3) finding that trial counsel was not ineffective for failing to raise Mr. Williams' unavailability at the time of trial.

The trial court found that Mr. Galle's claim of ineffective assistance of counsel was without merit, i.e., that Mr. Galle did not suffer any prejudice from any alleged failure of trial counsel to raise and/or prove Mr. Williams was an "unavailable" witness at the time of trial. The trial court further determined that there was no error in its refusal to admit Mr. Williams' grand jury testimony into evidence at trial.

This Court set forth the applicable jurisprudence on ineffective assistance of counsel in State v. Rubens, 10-1114, pp. 58-59 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, 66-67, as follows:

Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Brooks, 94-2438, p. 6 (La. 10/16/95), 661 So.2d 1333, 1337 (on rehearing); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, the defendant must show both that: (1) counsel's performance was deficient; and (2) he was prejudiced by the deficiency. Brooks, supra; State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. Counsel's performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064 ; State v. Ash, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different; "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693, 104 S.Ct. at 2068 ; State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236.

Accordingly, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. A convicted defendant's claim that his counsel's ineffective assistance entitles him to a new trial has two component parts. Id. at 687. "First, the defendant must show that counsel's performance was deficient." Id. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. "Unless a defendant can make both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Id. Consequently, and importantly for our purposes here, we need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

"[I]f an alleged error falls 'within the ambit of trial strategy' it does not 'establish ineffective assistance of counsel.' " State v. Bordes, 98-0086, p. 8 (La. App. 4 Cir. 6/16/99), 738 So.2d 143, 147, quoting State v. Bienemy , 483 So.2d 1105, 1107 (La. App. 4th Cir. 1986). " '[O]nce a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney.' " State v. Small , 13-1334, pp. 14-15 (La. App. 4 Cir. 8/27/14), 147 So.3d 1274, 1284 (quoting State v. Bradford , 02-1452, p. 24 (La. App. 4 Cir. 4/23/03), 846 So.2d 880, 895 ). The appellate court cannot "second-guess strategic and tactical choices made by trial counsel." State v. Myles, 389 So.2d 12, 31 (La. 1979).

We find that Mr. Galle did not receive ineffective assistance of counsel regarding the admissibility of Mr. Williams' grand jury testimony. Trial counsel's decision not to pursue the matter after the trial court denied the motion in limine and this Court denied supervisory writs, constituted trial strategy, which cannot be second-guessed after trial. Counsel stated at the hearing on the application for post-conviction relief that he did not pursue the issue further because the trial judge indicated that she was not going to allow the grand jury testimony into evidence. Trial counsel was also aware that there was an adequate remedy on appeal. This Court considered the issue on appeal and found that Mr. Williams' testimony was properly excluded.

Moreover, the evidence did not support a finding that Mr. Williams was unavailable as a witness. La. C.E. article 804(A) defines when a witness or "declarant" is unavailable:

A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
(3) Testifies to a lack of memory of the subject matter of his statement;
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause; or
(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

Once the trial court has declared a witness unavailable, a party may offer "[t]estimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." La. C.E. art. 804(B)(1). The determination of whether a witness is unavailable "is a preliminary question for the trial court." State v. Ball, 00-2277, p. 26 (La. 1/25/02), 824 So.2d 1089, 1112. See also La. C.E. art. 104(A). A trial court's finding as to whether a witness is unavailable is "reviewed for manifest error and will not be overturned, absent an abuse of the trial court's discretion. Id. A witness is not "unavailable" unless "a diligent and good faith effort to obtain his presence at trial" has been made. State v. Armstead , 14-0036, p. 21 (La. App. 4 Cir. 1/28/15), 159 So.3d 502, 517.

Testimony presented at the hearing on the application for post-conviction relief revealed that Mr. Williams was known to Mr. Galle and trial counsel prior to trial. Trial counsel was Mr. Galle's attorney prior to his arrest and was present when Mr. Galle turned himself in to the police. About a week after Mr. Galle's arrest, Mr. Williams met with trial counsel and executed an affidavit in which he swore that Mr. Galle, while present at the scene, had no involvement in the shooting. Trial counsel presented the affidavit to the District Attorney's office and facilitated Mr. Williams' presence and testimony before the grand jury. Trial counsel stated that he was made aware of Mr. Williams by Mr. Galle and obtained Mr. Williams' contact information through Mr. Galle's family. Trial counsel stated that he could not locate Mr. Williams prior to trial. However, trial counsel admitted that he did not seek to subpoena Mr. Williams and did not provide evidence of how he attempted to locate Mr. Williams. There was no evidence that trial counsel or Mr. Galle attempted to reach out to Mr. Williams through Mr. Galle's family. In light of the lack of evidence concerning the attempt to locate Mr. Williams prior to trial, the trial court did not err when it found that Mr. Galle had not proved Mr. Williams was unavailable.

The finding that Mr. Williams was not an "unavailable" witness and the exclusion of Mr. Williams' grand jury testimony did not impede Mr. Galle's fundamental right to present a defense. Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. This standard of fairness requires "that criminal defendants be afforded a meaningful opportunity to present a complete defense." California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). Additionally, the Sixth Amendment grants a criminal defendant the right to present a defense. U.S. Const. amend. 6 ; La. Const. Art. 1 § 16 ; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ; State v. Gremillion, 542 So.2d 1074 (La. 1989) ; State v. Vigee, 518 So.2d 501 (La. 1988).

The fundamental right to present a defense may not be superseded by evidentiary rules. Gremillion , 542 So.2d at 1078. The defendant in Gremillion attempted to introduce evidence that third parties, rather than the defendant, had killed the victim. Id. at 1076. The evidence consisted of a statement that the victim had made to a sheriff's deputy who investigated the crime. Id. at 1077. The statement was that he had been attacked and beaten by three white males. Id. at 1076. The trial court and the appellate court both held the statement was inadmissible hearsay. Id. The Court agreed that the statement was hearsay and that it did not meet any applicable exception to the hearsay rule. Id. at 1077. However, the Court held that normally inadmissible hearsay may be admitted if it is reliable, trustworthy and relevant, and if to exclude it would compromise the defendant's right to present a defense. Id. at 1078. The Court found that exclusion of the statement "impermissibly impaired" the defendant's fundamental right to present a defense. Id. at 1079. The Court described the nature of the statement as follows:

While the statement does not fit into any of the recognized exceptions to the hearsay rule, it should have, nevertheless, been admitted into evidence due to its reliability and trustworthy nature. The statement to Deputy Bowden, while not identical to the one given to the admitting physician who took Dupuy's history, was corroborated by that statement, in which Dupuy stated that he was attacked by "several others." The defendant and Dupuy were close friends, yet in two separate statements Dupuy failed to identify the defendant as his attacker. The statement indicating that Dupuy was attacked by "three white males" was given to a police officer investigating the crime, and there is no circumstance to suggest that the statement was untrustworthy. The state suggests that Dupuy may have been motivated by his friendship with the defendant when he failed to identify him as his attacker. There is no particular support for it in the record. Dupuy left the bar around 2:00 a.m., and there is no indication of his whereabouts from that time until 10:00 a.m. the next day, when he checked into the hospital. The possibility exists that Dupuy was attacked during this time, and the credibility of this defense should have been presented to the jury to assess.
While hearsay should generally be excluded, if it is reliable and trustworthy and its exclusion would interfere with the defendant's constitutional right to present a defense, it should be admitted.

Gremillion , 542 So.2d at 1078.

Similarly, this Court, in State v. Everett , 11-0714, p. 23 (La. App. 4 Cir. 6/13/12), 96 So.3d 605, 624, considered a case wherein the defendants contended on appeal that they were misidentified as the perpetrators and their right to present a defense of misidentification was hampered by the exclusion of a statement made to a police officer. The defendants asserted that the statement cast doubt on the identifications made by other witnesses. Id. The statement at issue was made by a witness, Karl Allen, who drove the victim, Arthur Jackson, to the hospital. 11-0714, p. 24, 96 So.3d at 624. The witness told the police officer that his son, Karl Stokes, and the victim

were passengers in his vehicle. Allen drove to R.N. Auto Shop to meet with the owner, only know as "Riley", to inquire about having his car repaired. Allen stated he parked in front of the business and they exited the vehicle. They stopped in the street, next to his car to talk with 'Kareem', 'Riley' and several other unknown black males. Allen said about four to five minutes later he heard six or seven gunshots, Allen threw his son to the ground and heard Jackson yell he was shot. Allen looked up and observed a dark colored unknown type vehicle speed off westbound on N. Galvez Street. Allen did not see the shooter or the driver.

Everett , 11-0714, p. 24, 96 So.3d at 624. The police officer noted that Karl Stokes' statement corroborated Allen's statement and that "Stokes added he saw an unknown dark skin black male, wearing a dark shirt shooting from across the street." Id. The defendants averred that even though the statement may have been hearsay, it should have been admitted into evidence because it exonerated them and contradicted the testimony of two other witnesses. Id. , 11-0714, p. 29, 96 So.3d at 627.

This Court recognized that the Louisiana Supreme Court held that "under compelling circumstances a defendant's right to present a defense may require admission of statements which do not fall under any statutorily recognized exception to the hearsay rule." Id. , 11-0714, p. 29, 96 So.3d at 627. "Normally inadmissible hearsay may be admitted if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant's right to present a defense." Id. , 11-0714, p. 30, 96 So.3d at 627. "This right to present a defense, however, does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice." Id.

The Everett Court found the statement in question was not admissible because it was not reliable or trustworthy. Id. , 11-0714, pp. 31-32, 96 So.3d at 628. The Court stated:

In this case, the defense contends that reading Allen's statement in conjunction with his son's statement to the police proves that the defendants were not the perpetrators. The defense bases its conclusion on Stokes' (alleged) description of one of the shooter's [sic] as having "dark skin," when neither defendant has dark skin, and the assumption that Allen's statement to the police was similar to his son's because "Stokes' statements corroborated with the above."
The evidence in this case does not support the defense assertion. The MORF authored by Detective Matthews says, "Allen did not see the shooter ...". If Allen did not see the shooter, he could not corroborate something he did not see, nor could he have agreed with his son's "description" of the shooter as "dark skinned." In fact, at trial Stokes consistently and unequivocally denied describing the shooters as dark skinned; he said the shooters had light skin. In fact, none of the witnesses at trial described the shooters as having dark skin. Stokes also testified that immediately prior to the shooting, his father identified the perpetrators as "Pookie and Herb."
* * *
Turning to the argument that the statement was crucial to the defendants' case because it contradicted the testimony of Nekeia and Sanders, it appears that the defense intended to use the statement to impeach the Sanders' testimony. However, La. C.E. art. 608, which deals with the use of statements for impeachment purposes, provides that a witness may be impeached only by his/her prior inconsistent statement, not through the testimony of another witness whose testimony may vary. Consequently, the statement provided by Allen supposedly exonerating the defendants may not be used to impeach Sanders' and Nekeia's identification of the defendants.
Nevertheless, even if the defense interpretation of the evidence that Allen's statement exonerates the defendants was accurate, the statement lacks reliability and is uncorroborated. Allen identified the defendants moments before the shooting began, and there is no evidence identifying anyone but the defendants as the shooters. However, Allen's statement, which follows, is fraught with inconsistencies:
Allen and his son, Karl Stokes (10 years old) and the victim Arthur Jackson were passengers in his vehicle. Allen drove to R.N. Auto Shop to meet with the owner[.] Allen stated he parked in front of the business and they exited the vehicle. They stopped in the street, next to his car to talk with 'Kareem', 'Riley,' and several other unknown black males ... Allen threw his son to the ground[.] Allen looked up and observed a dark colored unknown type vehicle speed off westbound on N. Galvez Street. Allen did not see the shooter or the driver.
The statement indicates that Allen was driving the van on the day of the shooting, but trial testimony contradicted that part of the statement, and, instead, placed the victim behind the wheel and Allen as a passenger. Further, trial testimony indicated that the victim, Allen, and Stokes remained in the van. But the statement indicates they exited the van and were standing next to it when the shooting began.

Everett , 11-0714, pp. 30-32, 96 So.3d at 627-628.

We find that the facts of the present case are analogous to Everett . A review of Mr. Williams' testimony at the hearing on the application for post-conviction relief reveals that his testimony was sought to contradict Ms. Jackson's testimony and attack her credibility. Mr. Williams stated that Mr. Galle had no involvement with the shooting, and was on the porch with him when the shooting took place. Mr. Williams stated that the perpetrator ran past both he and Mr. Galle on the porch, went into the house, and shot Ms. Jackson. The perpetrator then came back out, shot Mr. Williams in the neck, and ran off. Mr. Williams allegedly ran through the house towards the back, and then ran to the front of house, exited the house and was in the street, when the police arrived. Mr. Williams acknowledged that the perpetrator arrived with Mr. Galle. Therefore, Mr. Williams' testimony placed Mr. Galle on the scene at the time of the shooting and indicated Mr. Galle had some type of connection with his co-defendant.

On cross-examination, Mr. Williams admitted he had several prior convictions, which could have been used at trial to attack his credibility. Testimony relating to Mr. Williams' relationship with Mr. Galle was also introduced - Mr. Galle was Mr. Williams' drug dealer. Mr. Williams went to the house to purchase drugs from Mr. Galle. This testimony would have been corroborated by Ms. Jackson and the original statement of Mr. Williams' friend, Bobby Dickerson, who accompanied Mr. Williams to Ms. Jackson's house. Mr. Dickerson also informed police that Mr. Galle and his co-defendant, Mr. Scott arrived at the house together.

Mr. Galle knew, prior to trial, the content of Mr. Williams' testimony. Mr. Williams provided defense counsel with an affidavit exonerating Mr. Galle. Mr. Williams provided the same testimony to the grand jury. Mr. Galle also knew that if Mr. Williams testified, his credibility would have been attacked, and there was the potential and probability that Mr. Williams' testimony would not have been accepted by the jury. In fact, Mr. Williams' testimony placed Mr. Galle at the crime scene at the time of the offense. Counsel's failure to ensure presentation of Mr. Williams' testimony, which was contradicted by Ms. Jackson and Mr. Dickerson's statement to police and had internal contradictions, was not prejudicial to Mr. Galle. Mr. Williams' testimony was not accepted and/or believed by the grand jury, which indicted Mr. Galle for the attempted second degree murders of Mr. Williams and Ms. Jackson. Counsel's alleged error in failing to effectively litigate the underlying issue to the trial and appellate courts, which both considered and rejected the claim that the grand jury testimony should have been introduced, did not render the trial unfair or the verdict suspect. As such, we find that the trial court did not err by denying Mr. Galle's application for post-conviction relief, and deny relief.

DECREE

For the above-mentioned reasons, we find that Mr. Galle did not demonstrate that he was prejudiced by alleged deficiencies committed by his former counsel. Therefore, he failed to meet his burden for relief pursuant to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The application for supervisory review of the trial court's denial of the application for post-conviction relief is granted, but relief is denied.

WRIT GRANTED; RELIEF DENIED

      State v. Galle , unpub., 11-0265 (La. App. 4 Cir. 2/25/11), writ denied , 11-0441 (La. 3/11/11), 60 So.3d 1237.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Ryan LOVAS v. GALLAGHER BASSETT SERVICES, INC. and Turner Industries Group, LLC
    NO. 2018-CA-0801
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 20, 2019
    Charlsey Wolff, Michael W. Margiotta, Jr., THE LAW OFFICE OF WOLFF & WOLFF, 2800 Veterans Memorial Blvd., Suite 204, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Caitlin B. Carrigan, Charles J. Duhe, Jr., TAYLOR WELLONS POLITZ & DUHE, APLC, 1515 Poydras Street, Suite 1900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   JUDGE SANDRA CABRINA JENKINS

This is a workers' compensation case. Claimant Ryan Lovas appeals the June 21, 2018 judgment of the Workers' Compensation Judge ("WCJ") finding that Mr. Lovas had forfeited his entitlement to additional compensation benefits from his former employer, Turner Industries Group, LLC ("Turner"). We conclude that the WCJ was not manifestly erroneous in finding that Mr. Lovas willfully made a false statement or representation for the purpose of obtaining benefits or payments, in violation of La. R.S. 23:1208 ; and that he failed to respond truthfully to Turner's questionnaire about his previous medical history, in violation of La. R.S. 23:1208.1. We also conclude that Turner did not waive its affirmative defense of fraud. Accordingly, we affirm the WCJ's judgment dismissing Mr. Lovas's workers' compensation claim, with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

On June 30, 2017, Mr. Lovas filed a Disputed Claim for Compensation ("Claim") due to a work-related injury he sustained on or about July 7, 2016. The accident is not disputed. Mr. Lovas was employed as a machinist at Turner, which was a subcontractor at the Phillips 66 Belle Chasse facility ("Phillips 66"). Mr. Lovas claimed that his shirt became caught when he was bushing in a lathe to disassemble a pump assembly. According to Mr. Lovas, because there were no safety guards on the machine, his shirt jerked him into the machine, with the jerking motion causing his right ankle to twist. Mr. Lovas said that when he was jerked around, he heard a pop in his ankle, and his left shoulder was pulled forcefully against the machine. In his Claim, Mr. Lovas asserted that he injured his left arm, left shoulder, back, right ankle, right leg, and left foot.

After the accident, Mr. Lovas was taken by a Phillips 66 ambulance to an on-site nurse, who put Mr. Lovas's ankle in a cardboard splint. Mr. Lovas was then transported by Plaquemines EMT to Ochsner emergency room in Gretna. According to Mr. Lovas, the emergency room ("ER") physician tried to reset the bones and placed Mr. Lovas's right leg in a splint. He was discharged from the ER at 9:00 p.m., with a referral to see an orthopedic surgeon. The next day, Mr. Lovas saw Dr. Douglas Lurie, an orthopedist recommended by Turner. Dr. Lurie diagnosed Mr. Lovas with a right ankle dislocation, right tib-fib syndesmotic disruption/dislocation, posterior malleolar fracture and proximal fibular fracture.

On July 8, 2016, Dr. Lurie performed an open reduction, internal fixation surgery on Mr. Lovas's right leg at Touro Infirmary. Dr. Lurie released Mr. Lovas to return to work on the same date as the surgery. After the surgery, a Turner employee picked up Mr. Lovas at home and drove him to work every day until he was released to drive. Mr. Lovas stated that he did not work, but took pain medication and sat in his wheel chair all day until it was time to be driven home. Turner continued to pay Mr. Lovas his full wages, and he received rehabilitation over the course of several months until he returned to full-duty work at his pre-injury position with Turner.

On January 9, 2017, a Phillips 66 safety inspector noticed that Mr. Lovas was failing to use the safety guard on the lathe machine, which resulted in Mr. Lovas being terminated from his employment with Turner. Mr. Lovas received unemployment benefits until he was hired as a machinist with Simmons Plating and Grinding on February 7, 2017. On October 13, 2017, Mr. Lovas was laid off from this position due, in part, to a reduction in the workforce.

On June 29, 2017, nearly a year after the accident, Mr. Lovas reported to Dr. Lurie that he was experiencing back pain and "foot drop," which Mr. Lovas attributed to the July 7, 2016 accident. Dr. Lurie evaluated him and released him to return to work. On that same day, Mr. Lovas filed his Claim with the Office of Workers' Compensation ("OWC"). Turner filed an Answer to the Claim, asserting the affirmative defense of fraud under the workers' compensation statutes.

The WCJ held a trial on the merits on March 22, 2018. In its June 21, 2018 judgment, the WCJ decreed that, although Mr. Lovas injured his right ankle as a result of the work-related accident on July 7, 2016, Mr. Lovas suffered from preexisting back injuries and did not meet his burden of showing a causal connection between the work accident and his current complaints of back pain and foot drop. The WCJ also found that Mr. Lovas made false statements for the purpose of obtaining workers' compensation benefits in violation of La. R.S. 23:1208, and false statements in a medical questionnaire that prejudiced the employer's rights under La. R.S. 23:1208.1. The WCJ ruled that Mr. Lovas forfeited his right to any additional workers' compensation benefits due to his violations of La. R.S. 23:1208 and 23:1208.1. The WCJ dismissed the action, with prejudice. Mr. Lovas appealed.

DISCUSSION

Standard of Review

We review the factual findings of the WCJ under the manifest error/clearly wrong standard of review. Dow v. Chalmette Rest., Ltd. , 15-0336, p. 8 (La. App. Cir. 5/18/16), 193 So.3d 1222, 1228. "However, 'when legal error interdicts the fact-finding process in a workers compensation proceeding,' our review of those findings is conducted de novo ." Id. (quoting Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp. , 11-0179, p. 3 (La. App. 4 Cir. 6/29/11), 70 So.3d 988, 990 ). "We likewise review the WCJ's legal conclusions de novo ." Dow , 15-0336, p. 8, 193 So.3d at 1228.

In this appeal, Mr. Lovas lists two assignments of error.

Assignment of Error No. 1

In his first assignment of error, Mr. Lovas contends that the WCJ committed legal error in finding that Mr. Lovas committed fraud because Turner failed to allege fraud in its Pre-trial Statement.

Mr. Lovas concedes that the WCJ, in its written reasons for judgment, noted that Turner filed an Answer to Mr. Lovas's Claim in which it asserted, as an affirmative defense:

FOURTEENTH DEFENSE
TURNER provides notice that should a misrepresentation of defense develop under law, it will seek dismissal of any claims and assert its right to recovery of all funds and expenses per LSA-R.S. 23:1208 or 23:1208.1.

Mr. Lovas asserts that Turner's failure to allege fraud in its Pre-trial Statement or in a reconventional demand precludes the WCJ from considering the issue of Mr. Lovas's alleged fraud under La. R.S. 23:1208 and 23:1208.1. According to Turner, under LWC Hearing Rule 6007, the pre-trial statement "shall" include "issues to be litigated," and "no new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties." See La. Admin. Code tit. 40, Pt. I, § 6007. Mr. Lovas asserts that "[t]he mandatory language of Hearing Rule 6007 does not permit a party to present issues at trial that were not listed in its pre-trial statement, and thereby prevents the manifest injustice that undue surprise imposes upon an opposing party." Thus, according to Mr. Lovas, Turner's claims of fraud were waived even though they appeared in Turner's Answer to Mr. Lovas's Claim.

We disagree. Louisiana courts have held that an allegation of fraud in a workers' compensation case is an affirmative defense that must be specially pled in the answer. See Messina v. Isle of Capri Casino , 04-1061, p. 6 (La. App. 3 Cir. 12/22/04), 891 So.2d 780, 785 ; Gotte v. Barnes Personnel Mgmt., Inc ., 13-420, p. 4 (La. App. 3 Cir. 3/12/14), 133 So.3d 1274, 1278 ; Varnado v. Sanderson Farms, Inc. , 14-1305, p. 2 (La. App. 1 Cir. 3/6/15), 166 So.3d 340, 341 ; Wise v. J.E. Merit Constr., Inc. , 97-0684, pp. 5-6 (La. 1/21/98), 707 So.2d 1214, 1217 ("A claimant's untruthful statement regarding his permanent partial disability which prejudices his employer's ability to seek reimbursement from the fund gives rise to an affirmative defense under La. R.S. 23:1208.1...."); Jackson v. M.R. Pittman , LLC , 08-0966, p. 1 (La. App. 4 Cir. 2/11/09), 5 So.3d 906, 908.

Because Turner properly pled fraud as an affirmative defense in its Answer to Mr. Lovas's Claim, there was no undue surprise or manifest injustice. Thus, we find no merit in Mr. Lovas's argument that Turner's fraud claims were waived because they were not asserted in Turner's Pre-trial Statement.

Assignment of Error No. 2

In Mr. Lovas's second assignment of error, he contends that even if Turner had properly alleged fraud, the WCJ nonetheless abused its discretion in finding that Turner satisfied its burden of proving fraud under La. R.S. 23:1208 and 23:1208.1.

La. R.S. 23:1208.1

Mr. Lovas contends that the WCJ erred in finding that he violated La. R.S. 23:1208.1, the forfeiture statute which provides as follows:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical condition are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

"The purpose of La. R.S. 23:1208.1 is to allow the employer to ask prospective or current employees about prior injuries." Boh Bros. Constr. Co. v. Price , 00-2233, p. 3 (La. App. 4 Cir. 8/29/01), 800 So.2d 898, 901. "It applies to employment-related questioning of an employee or prospective employee, by an employer, concerning a prior injury, when there is no pending workers' compensation claim." Id .

The requirements for forfeiture are: (1) an untrue statement; (2) prejudice to the employer; and (3) compliance with the notice requirements. Alexis v. Alton Ochsner Found. Hosp ., 07-0355, p. 5 (La. App. 4 Cir. 8/29/07), 966 So.2d 673, 676-77.

Untruthful Statements

We first look at whether Mr. Lovas made untruthful statements on Turner's Second Injury Fund Questionnaire (the "Questionnaire") that Mr. Lovas completed and signed on April 14, 2016. At the top of the Questionnaire was the following bold-faced, typed notice: "FAILURE TO ANSWER TRUTHFULLY AND/OR CORRECTLY TO ANY OF THE QUESTIONS ON THIS FORM MAY RESULT IN A FORFEITURE OF YOUR WORKERS COMPENSATION BENEFITS UNDER LA R.S. 23:1208.1. "

The Questionnaire asked, "Do you currently have or have you ever had the following." Following that statement was a single-spaced list of various medical conditions, diseases, and situations to which the respondent was to mark "yes" or "no." Mr. Lovas responded "no" to the question, "Have you ever injured/had trouble with your back or worn a back brace/support?" Mr. Lovas also responded "no" to the question of whether he had ever been a patient in a hospital or clinic.

At trial, when asked about his responses to the Questionnaire, Mr. Lovas testified that he understood the back-pain question as asking whether he was having back pain at the time he completed the Questionnaire. He also testified that, "in his mind" he did not have an injury to his back, but that his sore back resulted from working long hours. Mr. Lovas denied that he was ever treated for low back pain before the accident.

Mr. Lovas's medical records introduced at trial confirm that, although Mr. Lovas answered "no" to both questions, he did, in fact, have prior back problems, and he did go to a hospital or clinic for treatment of his complaints. Specifically, these records show that in the year before he completed the Questionnaire, Mr. Lovas sought treatment for chronic back pain at least five times.

At trial, Mr. Lovas was asked about his February 28, 2015 visit to Urgent Care, where he complained of constant lower back pain on a scale of 10/10 (with 10 being the "worst imaginable"). The records show that he described his back pain as "sharp, dull, aching, throbbing, spasmodic and shooting." The records also reflect that Mr. Lovas received a muscular injection of Medrol, and a prescription for a narcotic pain medication. He was directed to follow up with his PCP for "chronic back pain management." Mr. Lovas testified that he didn't remember this February 2015 visit and treatment at Urgent Care.

On March 15, 2015, Mr. Lovas presented to Ochsner West Bank Emergency Room for shooting and throbbing sciatica pain, which he said he had experienced for the previous eight months, and which was radiating into his lower right leg. The records show that the medical care provider prescribed Oxycodone to Mr. Lovas, gave him an intramuscular injection for pain, and recommended that Mr. Lovas consult with an orthopedic specialist. At trial, Mr. Lovas testified that he could not recall this visit and treatment, although he recalled that he was experiencing pain in his buttocks.

On March 20, 2015, Mr. Lovas presented to Urgent Care complaining again of constant lower back pain. Mr. Lovas reported that the problem was made worse by exertion, movement, sitting, and standing. Upon examination, Mr. Lovas exhibited symptoms consistent with sciatica. He was directed to follow up with physical therapy. At trial, Mr. Lovas recalled this visit, where he complained of constant low back pain, which he said arose from pulling a muscle in his back.

On April 16, 2015, Mr. Lovas presented to Ochsner West Bank Emergency Room complaining of "worsening" back pain. He reported having "chronic back pain in the past." Mr. Lovas stated that he was cleaning and "threw out [his] back." The records show that he described the pain as radiating through his right buttocks. Mr. Lovas did not recall that he ever received injections for back pain, although they are reflected in the medical records. He did recall telling the ER doctor that he had scheduled a pain management appointment with Dr. Kirby, although he did not go. He also scheduled a visit with Dr. Craig at the Bone and Joint clinic for the pain.

Mr. Lovas also recalled going back to the Ochsner ER three days later, April 19, 2015, for his back pain. Mr. Lovas was told that the ER could not continue to treat his back pain, and that he needed to follow up with his orthopedist or pain management physician.

These medical records confirm that, even though Mr. Lovas denied that he ever had a back injury or ever received treatment for low back pain, he repeatedly sought treatment for continuing back pain in 2015, and was given narcotic medication and intramuscular injections. We see no manifest error in the WCJ's finding that Mr. Lovas gave untruthful answers on the Questionnaire.

Notice Requirements

Because untruthful answers alone do not result in the forfeiture of benefits, the second step is to determine whether Turner's Questionnaire complied with the notice requirements of the statute by advising the employee that his failure to answer truthfully may result in forfeiture of workers' compensation benefits. Boh Bros , 00-2233, pp. 6-7, 800 So.2d at 903. The notice on Turner's Questionnaire is in bold-faced, block lettering of no less than ten-point type. It informs an employee/applicant who falsifies or misrepresents an answer on a medical questionnaire regarding preexisting medical conditions that his claim for workers' compensation benefits may be jeopardized. Thus, we find the notice provision in this case to be sufficient.

Prejudice to the Employer

[T]he legislature imposes the penalty of forfeiture only when the employer is prejudiced." Alexis , 07-0355, p. 5, 966 So.2d at 676. An employer is prejudiced by one of two circumstances. Id ., 07-0355, p. 5, 966 So.2d at 677. An employer is prejudiced only when the false statement: (1) directly relates to the medical condition for which a claim is made; or (2) affects the employer's ability to receive reimbursement from the Second Injury Fund. Id .

In the first circumstance, the employee's untruthful answer must directly relate to the medical condition that is the subject of the claim. Id ."A direct relation is established when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition." Id.

Based on the evidence in the record, we find that the pre-employment condition of Mr. Lovas's back made the injury for which the present claim was filed inevitable or very likely to occur. Mr. Lovas's duties as a machinist required heavy lifting, bending, reaching, and turning, which made him susceptible to injury because of the presence of his pre-existing history of back pain. The physical demands of Mr. Lovas's job required Mr. Lovas to use his previously injured back. A recurrence of that condition was likely to happen while Mr. Lovas performed his regular duties for Turner.

Thus, we find that Turner demonstrated that Mr. Lovas's untruthful answers on the medical questionnaire directly related to the medical condition that is the subject of the instant claim, thereby satisfying the "prejudice to the employer" element under La. R.S. 23:1208.1. We find that the WCJ was not manifestly erroneous in concluding that Mr. Lovas forfeited additional workers' compensation benefits because of violations of La. R.S. 23:1208.1.

La. R.S. 23:1208

In addition to La. R.S. 23:1208.1, in which the claimant makes a falsity on an employer's medical questionnaire before the accident or injury, the workers' compensation statutes have a separate anti-fraud forfeiture provision by which employers may affirmatively defend against paying a claim. Wise , 97-0684, p. 6, 707 So.2d at 1217. La. R.S. 23:1208 applies to situations in which, during a pending claim, a claimant has made a false statement or misrepresentation for the specific purpose of obtaining workers' compensation benefits. Id . La. R.S. 23:1208 provides that:

[i]t shall be unlawful for any person, for the purposed of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

In additional to criminal and civil penalties, the fraud provisions state that any person violating Section 1208 "may be ordered to make restitution" and "shall forfeit any right to compensation benefits under this Chapter." La. R.S. 23:1208(D), (E). Fraudulent statements encompass those made to anyone, including the employer, physicians, or insurer. Resweber v. Haroil Constr. Co., 94-2708, pp. 1-2 (La. 9/5/95), 660 So.2d 7, 9.

In its reasons for judgment, the WCJ found that Mr. Lovas forfeited his entitlement to compensation under La. R.S. 23:1208 because he denied prior back pain or injuries in his medical history provided to doctors, and in his trial testimony.

Mr. Lovas contends that he did not violate La. R.S. 23:1208 because any prior medical treatment for back pain was inconsequential and not related to any particular injury. According to Mr. Lovas, he did not have any prior operations, surgeries, injections or any serious and ongoing low back issues. He asserts that he suffered some occasional back pain due to the heavy manual labor he performed as a machinist, but that this back pain was "transitory, inconsequential and was treated by conservative measures."

In its written reasons for judgment, the WCJ explained the basis for its finding that Mr. Lovas made willful misrepresentations or false statements in order to obtain workers' compensation benefits:

A claimant can receive workers' compensation benefits when a work accident aggravates a pre-existing condition, but Claimant denied prior back pains or injuries in his discovery, the Second Injury Fund questionnaire, medical history provided to doctors, deposition testimony and trial testimony. Upon reviewing the record regarding Claimant's prior medical history, the Court notes several occasions wherein Claimant treated for back pain and received injections and/or medication.... The Court reviewed the record in this matter and upon doing such, the Court finds that Claimant made willful misrepresentations for the purpose of obtaining workers' compensation benefits.... Claimant gave false information regarding his past medical history ... [and] [h]e also omitted his medical history regarding prior back complaints to doctors who treated him after the July 7, 2016 [accident]. Claimant's past medical condition was significant to his claim for workers' compensation benefits as it was directly related to the back complaints he is alleging as a result of the July 6 [sic], 2016 work accident.... Claimant has violated La. R.S. 23:1208 and La. R.S. 23:1208.1. Claimant has forfeited and is not entitled to any further benefits under the Louisiana Workers' Compensation Act, including penalties and attorney fees.

The WCJ's written reasons reflect that Mr. Lovas's credibility was a significant consideration in the WCJ's conclusion that he had committed fraud in violation of La. R.S. 23:1208 and La. R.S. 23:1208.1. Based on a thorough review of the record, we do not find that the WCJ committed manifest error or was clearly wrong in its determination. The WCJ was allowed to view Mr. Lovas in person and to hear his responses to questions posed by both his and Turner's attorneys. The WCJ had access to Mr. Lovas's prior statements and medical records that had been admitted into evidence. The record evinces discrepancies between Mr. Lovas's medical records -- which indicate that he has sustained injuries similar to the instant matter -- and his trial and deposition testimony. The WCJ could have determined that Mr. Lovas was able to understand the object of the question when he was asked about past back problems. The WCJ could have found that Mr. Lovas was able to deduce that these past problems were, in fact, "injuries," which could have led it to determine that a forfeiture of benefits was justified. Accordingly, we affirm the WCJ's findings that Mr. Lovas forfeited additional workers' compensation benefits because of his untruthful statements and willful misrepresentations.

CONCLUSION

For the foregoing reasons, the WCJ's June 21, 2018 judgment dismissing Mr. Lovas's suit is affirmed.

AFFIRMED

      "Foot drop" is dropping of the foot from a peroneal or tibial nerve lesion that causes paralysis of the anterior muscles of the leg. Dorland's Illustrated Medical Dictionary 696 (29th ed. 2000).

      Mr. Lovas marked "no" to every single medical question presented on the Questionnaire.

      "Sciatica" is defined as "[p]ain in the lower back and hip radiating down the back of the thigh into the leg ... now known to usually be due to herniated lumbar disk compromising the L5 or S1 root." Steadman's Medical Dictionary 1580 (26th ed.1995).

      We need not, therefore, address whether the untruthful answers affected Turner's ability to recover from the Second Injury Fund.


author: Judge Daniel L. Dysart

text:
    Yolanda GREENUP v. Hargett ROOSEVELT, Individually and on Behalf of Black Pearl Restaurant
    NO. 2018-CA-0892
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 20, 2019
    LOBRANO, J., CONCURS IN THE RESULT, Patrick B. Sanders, SANDERS AND FORD, L.L.C., 4480 General DeGaulle Drive, Suite 203, New Orleans, LA 70131, COUNSEL FOR PLAINTIFF/APPELLANT
    Alexandre E. Bonin, R. Christian Bonin, Jean-Marc V. Bonin, BONIN LAW FIRM, 4224 Canal Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Daniel L. Dysart

Yolanda Greenup appeals a judgment of the trial court involuntarily dismissing, with prejudice, her lawsuit against defendants, Hargett Roosevelt, individually, and on behalf of Black Pearl Restaurant. For the reasons that follow, we affirm.

BACKGROUND:

Yolanda Greenup purchased a meal consisting of fried catfish, macaroni and cheese, potato salad and cornbread from Black Pearl Restaurant at approximately noon on July 1, 2016. Ms. Greenup returned to work with her meal and began to consume it between 12:15 and 12:20 p.m. She testified that after eating about three bites of the potato salad, she decided that it tasted "weird" and threw the remainder of the lunch away.

Ms. Greenup first testified that she left work early because of stomach pains, but that she did not experience vomiting and diarrhea until later that night. On cross-examination, she testified that the vomiting and diarrhea began before she left work between 4 and 5 p.m. She also admitted on cross-examination that she had consumed a turkey sandwich at approximately 6 p.m. on June 30, 2016, and a chicken breast with a meal on June 29, 2016.

Ms. Greenup attempted to treat herself with Pepto-Bismol, but when the symptoms continued, she went to the Touro Infirmary emergency room on July 3, 2016. She reported to the emergency room doctor that her pain began two days earlier after eating potato salad. She complained of pain in her stomach, vomiting three times a day for two days, and diarrhea five or six times a day for one day. She gave a history of fibromyalgia, Hepatitis C and respiratory issues. The Touro records indicate that Ms. Greenup was administered medications for nausea and inflammation, and blood was drawn. All of her lab results were normal. She was discharged with prescriptions for Toradol and Zofran and told to follow-up with her regular physician, if necessary.

Ms. Greenup saw Dr. Rachel Oreck on July 5, 2016. She gave a history of having anxiety disorder, depression, asthma and fibromyalgia. Ms. Greenup explained that she had eaten potato salad Friday (July 1), and started having stomach pains, diarrhea and vomiting thereafter. She claimed to have had no solid food since Friday, only water, soup and fruit. Dr. Oreck discharged Ms. Greenup after giving her an injection for nausea. Her diagnosis was bacterial foodborne intoxication, unspecified.

Ms. Greenup did not see another physician until February 21, 2017, when she visited Dr. William W. Alden, on the recommendation of her counsel. She complained of severe pain in the joints of her spine and upper and lower extremities, and pain upon urination. The doctor noted that she appeared to also have conjunctivitis. Dr. Alden concluded that Ms. Greenup had salmonella induced Reiter's syndrome based on her reported history, complaints, and physical findings. His findings were based strictly on the history given to him by Ms. Greenup of having eaten allegedly tainted potato salad on July 1, 2016. Dr. Alden opined that more probably than not, with a reasonable degree of medical certainty, Ms. Greenup's condition was related to the ingestion of food tainted with salmonella, which she had purchased from Black Pearl Restaurant.

A bench trial was held on October 30, 2017. At the close of the plaintiff's case, counsel for the defendants moved for an involuntary dismissal pursuant to La. Code Civ. Proc. art. 1672 B. The trial court granted the motion, dismissing plaintiff's claims, with prejudice. This appeal follows.

DISCUSSION:

Louisiana Code of Civil Procedure art. 1672 B provides:

In an action tried to the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Further, an involuntary dismissal should be granted only if the plaintiff fails to prove his case by a preponderance of the evidence. Brown v. Sargent , 17-0838, p. 3 (La.App. 4 Cir. 3/21/18), 241 So.3d 1115, 1117, citing Kelly v. Housing Authority of New Orleans, 02-0624, p. 5 (La.App. 4 Cir. 8/14/02), 826 So.2d 571, 574.

When considering a motion for involuntary dismissal, the trial court must first weigh and evaluate all the evidence presented to that point and determine whether the plaintiff established a prima facie case by a preponderance of the evidence. Next, unlike the motion for directed verdict in a jury trial, the trial judge reviews the evidence without any special inference favorable to the party opposed to the motion. On appeal, a dismissal pursuant to Article 1672 B should not be reversed absent manifest error. Brown, 17-0838, p. 3, 241 So.3d at 1117.

Ms. Greenup asserts two assignments of error. First, she argues that the trial court committed manifest error in finding that she did not produce sufficient evidence to prove that she, more probably than not, sustained some injury as a result of consumption of a meal sold to her by the defendant. In her second assignment she argues that the trial court abused its discretion when it disregarded the uncontroverted expert opinion of Dr. Alden as to causation. She asserts that the record does not contain any evidence that would cast suspicion on the reliability of his opinion.

As the two assignments of error are interrelated, we will address them together. First, to meet her burden of proof, Ms. Greenup must prove that the food she purchased from Black Pearl Restaurant was tainted when she purchased it. She must next prove the existence of a causal relationship between the illness or injury and the consumption of the food. Crosby v. Wal-Mart Stores, Inc., 10-1015, p. 4 (La.App. 5 Cir. 6/14/11), 67 So.3d 695, 697 (citing Landreneau v. Copeland's Cheesecake Bistro, L.L.C. , 08-647 (La.App. 5 Cir. 1/13/09), 7 So.3d 703 ). Ms. Greenup need not negate every conceivable cause. However, she must show that it is more likely than not that the food's condition caused the injuries of which she complains. Id. Further, "[c]ausation is a factual issue." Levine v. Allstate Ins. Co., 17-0896, p. 2 (La.App. 4 Cir. 4/18/18), 243 So.3d 1286, 1288 (citing D'Angelo v. Guarino , 10-1555, p. 6 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 688 ).

The trial judge found that there was no dispute that Ms. Greenup contracted food poisoning. The real issue was whether the potato salad purchased from the defendant caused the food poisoning, or whether it was some other food Ms. Greenup had eaten. The judge was particularly concerned with Dr. Alden's testimony concerning the history related to him by Ms. Greenup. The doctor was not aware at the time he treated the plaintiff that she had consumed poultry products on the two days preceding July 1, 2016.

Based on the trial court's statements, it is evident that it was not convinced by Dr. Alden's testimony that the potato salad purchased from Black Pearl Restaurant was the cause of Ms. Greenup's injuries. And, it is well-settled that a trial court is not bound by the testimony of an expert. "Credibility determinations, including evaluating expert witness testimony, are for the trier of fact." Jones v. Harris, 04-0965, p. 15 (La.App. 4 Cir. 2/2/05), 896 So.2d 237, 246 (citing Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La. 10/19/99), 748 So.2d 417, 421 ). "Such credibility determinations are factual findings governed by the well-settled manifest error standard of review." Id.

Dr. Alden testified that the onset of illness caused by salmonella bacteria could be anywhere from six hours to a couple of days. He opined that the onset of symptoms within four hours would require a lot of bacteria, stating "[s]he would have had to have a large bacteria load from that potato salad." He admitted that a treating physician is not necessarily interested in the source of the salmonella as the symptoms are treated the same regardless of what caused the illness.

Contrary to plaintiff's argument that the trial court disregarded Dr. Alden's uncontroverted testimony, it is clear that the trial court gave great weight to Dr. Alden's opinion that Ms. Greenup contracted Reiter's syndrome from foodborne salmonella poisoning. However, the trial court did not find that Dr. Alden's opinion was sufficient to carry Ms. Greenup's burden of proof as to the source of the salmonella. The trial court was well within its discretion to make such a determination.

Likewise, as the only evidence submitted to prove her case was Dr. Alden's testimony, the medical records from Touro and Dr. Oreck, and Ms. Greenup's own conflicting testimony, we cannot say that the trial court was manifestly erroneous in finding that Ms. Greenup did not prove by a preponderance of the evidence that she contracted food poisoning from food purchased from Black Pearl Restaurant. The medical evidence was all based on the history Ms. Greenup provided to the doctors. As Ms. Greenup revealed on cross-examination, she consumed two different types of poultry on the two days preceding her purchase from Black Pearl Restaurant. That testimony coupled with Dr. Alden's testimony that it usually takes at least six hours for symptoms of food poisoning to manifest, supports the trial court's finding that the cause of Ms. Greenup's illness was not proven.

Accordingly, for the reasons set forth herein, we affirm the ruling of the trial court.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      Toradol is a non-steroidal anti-inflammatory drug and Zofran is an anti-nausea drug.

      Reiter's syndrome, also known as reactive arthritis, is a type of arthritis that occurs as a reaction to an infection somewhere in the body. Most infections that cause the disease originate in the genitourinary tract (the bladder, urethra, penis, or vagina) and are spread through sexual intercourse, a form of the disease called genitourinary Reiter's syndrome, or urogenital Reiter's syndrome. Other infections that can cause reactive arthritis include gastrointestinal infections due to eating contaminated food or handling contaminated substances, a form of the disease called gastrointestinal Reiter's syndrome, or enteric Reiter's syndrome. Source: stanfordhealthcare.org/medical-conditions/bones-joints-and-muscles/reactive-arthritis /diagnosis.html


author: Judge Joy Cossich Lobrano

text:
    ELYSIAN, INC. and Cusachs Family Collection, L.L.C. v. NEAL AUCTION COMPANY, INC., Philip B. Alford, John J. Booth, Celeste W. Lingle, and John Doe Insurance Company
    NO. 2018-CA-0683
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 20, 2019
    Isaac H. Ryan, Kermit L. Roux, III, DEUTSCH KERRIGAN & STILES, L.L.P., 755 Magazine Street, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Mary Ellen Roy, Dan Brian Zimmerman, Lauren E. Burk, PHELPS DUNBAR LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, George Read Coleman, SAMUEL AND COLEMAN, LLC, 3421 N. Causeway, Blvd., Suite 201, Metairie, LA 70002, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Joy Cossich Lobrano

Plaintiffs, Elysian, Inc. and Cusachs Family Collection, L.L.C., (hereinafter "plaintiffs"), filed the instant appeal from the district court's judgment that granted an exception of lis pendens , and dismissed their complaint without prejudice. After reviewing the record and applicable law, we find that lis pendens does not apply, reverse the judgment of the district court, and remand the matter for further proceedings.

The case concerns the sale of items contained in an art collection that was on display at the New Orleans Museum of Art for over a century. The Gaspar Cusachs Collection (the "collection") is a large group of historical artifacts originally assembled and owned by Gaspar Cusachs (1855-1929). Plaintiffs equally share ownership of the collection.

In May 2015, Neal Auction Company, Inc. and Philip B. Alford, president and senior auctioneer (hereinafter "Neal"), began discussions with plaintiffs about allowing Neal to sell by auction the items in the collection. In February 2016, Neal and plaintiffs executed a written consignment agreement permitting Neal to place the collection for auction; they were the only parties to the agreement.

John Booth, Jr. and Celeste Lingle, as Cusachs' descendants, both claimed an interest in the collection. On November 10, 2016, Booth and Lingle filed a petition for preliminary injunction, temporary restraining order and permanent injunction ("Injunction suit") against: (1) Neal (without Alford); (2) Dawn Storms, individually and as manager of the Cusachs Family Collection, L.L.C. (plaintiff herein); (3) David Lingle, individually and in his capacity as trustee for the Elysian Fields Trust, a trust formed to deal with the collection; (4) Elysian, Inc. ("Elysian"), a corporation to which David Lingle purportedly transferred the assets of the collection (plaintiff herein); and (5) an unnamed insurance company. The Injunction suit, filed less than one month before the scheduled auction, sought to deposit one-half of the proceeds from the auction into the registry of the court, less the amount due Neal, so the court could determine who was entitled to the remainder of the proceeds. Once the auction was held, one-half of the proceeds were immediately distributed to plaintiff, the Cusachs Family Collection.

Elysian filed a motion for summary judgment, seeking to dismiss the entire suit on the merits. Before the summary judgment could be heard, Elysian filed a motion to dissolve the preliminary injunction so that the proceeds held in the registry of the court could be properly disbursed.

Both motions were heard by the district court and, in June 2017, the court granted the motion to dissolve, thereby vacating its preliminary injunction. Conversely, the court denied Elysian's motion for summary judgment without reasons.

On October 27, 2017, while the Injunction suit was pending, plaintiffs filed a new lawsuit against various defendants including Neal and alleged fourteen separate causes of action, including inter alia, fraud, breach of contract, conversion, conspiracy, abuse of process, and bad faith ("Auction suit"). The Auction suit was assigned to a different division of the court but was later transferred to the same division where the Injunction suit was pending. The district court, however, denied plaintiffs' motion to consolidate the two matters.

On November 17, 2017, Elysian re-urged its motion for summary judgment in the Injunction suit. The motion was granted. Elysian was instructed to submit a proposed judgment.

In response to the Auction suit filed on October 27, 2017, Neal filed a declinatory exception of lis pendens and a dilatory exception of nonconformity of the petition in late December 2017. Relying on La. C.C.P. art. 531, Neal argued that the Injunction suit and the Auction suit were both pending, both suits involved the same "transaction or occurrence," and both involved the same parties in the same capacities. Plaintiffs opposed the motion.

On January 22, 2018, the district court signed the proposed summary judgment that dismissed the Injunction suit with prejudice. No appeal was taken by the parties.

On March 23, 2018, the district court granted Neal's exception of lis pendens and dismissed plaintiffs' Auction suit without prejudice.

On March 26, 2018, plaintiffs filed a motion for leave to file incidental demands in the Injunction suit. The motion was denied on May 22, 2018.

This timely appeal by plaintiffs followed. Their assignments of error concern whether the exception of lis pendens was properly granted and the district court's jurisdiction to order a supplement of the record on appeal.

A trial court's ruling on a lis pendens exception, pursuant to La. C.C.P. art. 531, presents a question of law; thus, it is reviewed de novo . Parker v. Tulane-Loyola Fed. Credit Union , 15-1362, p. 5 (La.App. 4 Cir. 5/25/16), 193 So.3d 441, 444-45. On issues of law, the appellate court's standard of review is simply whether the trial court's interpretive decision is legally correct. First Bank and Trust v. Simmons , 14-1210, 14-1211, p. 24 (La.App. 4 Cir. 4/22/15), 165 So.3d 1025, 1040 ; An Erny Girl, L.L.C. v. BCNO 4 L.L.C., 16-1011, p. 9 (La.App. 4 Cir. 3/30/17), 216 So.3d 833, 839, writ denied, 17-0815 (La. 6/29/17), 222 So.3d 48.

An exception of lis pendens is governed by La. C.C.P. art. 531, which provides as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The jurisprudence has identified the following three requirements for lis pendens to apply:

1. There must be two or more suits pending;
2. The suits must involve the same transaction or occurrence; and
3. The suits must involve the same parties in the same capacities.

Aisola v. La. Citizens Prop. Ins. Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269. All three requirements must be met. Id.

At first blush, it appears that the first requirement for lis pendens, that two suits are pending, is satisfied because the Auction suit was filed before the Injunction suit was dismissed. However, "[b]ecause lis pendens does not address the merits of the disputes between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment." Parker, 15-1362, p. 10 n. 10, 193 So.3d at 447 (citing Trahan v. 2010 Beglis, L.L.C., 11-365, p. 4 (La.App. 3 Cir. 12/14/11), 81 So.3d 192, 195 (quoting Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 34,796, p. 2 (La.App. 2 Cir. 8/22/01), 796 So.2d 66, 68 ) ); La. Cotton Ass'n Workers' Compensation Group Self-Insurance Fund v. Tri-Parish Gin. Co. Inc., 624 So.2d 461, 464 (La.App. 2nd Cir. 1993). "Extending that principle, a trial court likewise is entitled to consider the procedural and factual climate that exists at the time of its review of the exception." Parker, 15-1362, p. 10n. 10, 193 So.3d at 447. A review of a grant of lis pendens requires this court to examine not only whether the district court was correct when the exception was granted, but whether the exception is still correct at the time of appeal. Brooks Well Servicing, Inc., 34,796, pp. 2-3, 796 So.2d at 69.

The Injunction suit was not pending when the exception was granted by the district court and is not pending on appeal. Thus, lis pendens does not apply. Therefore, we reverse the judgment of the district court granting Neal's exception of lis pendens and remand the matter to the trial court for further proceedings consistent with this opinion.

REVERSED; REMANDED.

      Although the Injunction suit named a number of parties, its prayer is directed to David Lingle and Dawn Storms and sought to enjoin them from obtaining any of the remaining proceeds from the auction.

      The appellate record contains the transcript of the March 23, 2018 hearing on the exception of lis pendens, at which time, Neal's counsel admitted that "the injunction suit is no longer pending."

      Even a lawsuit on appeal can be considered pending for the purposes of lis pendens. Glass v. Alton Ochsner Medical Foundation , 02-0412, p. 4 (La.App. 4 Cir. 11/06/02,) 832 So.2d 403, 406.

      Because we reverse the judgment granting the exception of lis pendens, we pretermit discussion of the propriety of the district court's supplementation of the record on appeal.