author: WILLIAMS, J.

text:
    Gary FENNER, Plaintiff-Appellant v. Kyndal Kay SCHLEY, Defendant-Appellee
    No. 51,842-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered March 14, 2018
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP, By: Steven E. Soileau, Counsel for Appellant
    WEEMS, SCHIMPF, HAINES, LANDRY, SHEMWELL & MOORE, By: Robert H. Shemwell, Jr., Counsel for Appellee
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   WILLIAMS, J.

The plaintiff, Gary Fenner, appeals a judgment that awarded him $3,500 in damages and denied his claim for attorney fees and expert witness fees. For the following reasons, we affirm the trial court's determination that the defendant was liable to the plaintiff for conversion; we affirm the court's conclusion that the plaintiff is not entitled to attorney fees and expert witness fees; we vacate the trial court's award of damages; and we remand with instructions.

FACTS

On February 29, 2016, the plaintiff, Gary Fenner, and the defendant, Kyndal Schley, entered into a Real Estate Buy/Sell Agreement whereby the plaintiff agreed to sell the defendant a parcel of immovable property in Belcher, Louisiana. The agreement provided that the "[p]roperty being purchased includes all land, all buildings, component parts and permanently installed improvements thereon, including fencing, unless otherwise stated[.]" The buy/sell agreement also contained a provision for reasonable attorney fees and expert witness fees "[i]in the event of non-performance by either Party[.]"

The property did not include a residence. However, it contained a barn and a shed which were included in the appraisal and purchase price of the property. Further, a custom-made 1,000-gallon fuel tank had been placed on the property. The fuel tank was on "skidders" to allow it to be moved from one location to another, was secured by metal stakes that had been inserted into the ground, and it contained an electrical wire that was connected to an electrical junction box attached to a "chicken coop." The plaintiff had purchased the fuel tank in 2009 for $14,486.53.

On the day of the closing, the plaintiff informed the defendant that he had not removed all of his belongings from the property and that he would "need a few days" to retrieve them. The defendant agreed to allow the plaintiff time to remove his items. Two days later, the defendant went to the property and noticed that the shed, which was included in the purchase, had been removed. However, the fuel tank and multiple other items (including two dogs and "stuff" in the barn) remained on the property. After consulting with her realtor, the defendant demanded that the plaintiff either return the shed or pay her its replacement value. The plaintiff returned the shed and continued removing his belongings from the property. Subsequently, when the plaintiff went to the property to retrieve the fuel tank, a lock had been placed on the gate and he was unable to enter the property. Initially, the defendant testified that she believed the tank was included in the purchase of the property and that it belonged to her. She later stated that she decided to keep the fuel tank because the plaintiff "was dragging his feet on returning [the shed]." The plaintiff's attempts to regain possession of the fuel tank were unsuccessful.

Thereafter, Josh Schley, the defendant's husband, listed the fuel tank for sale on Craigslist for $1,000. Schley testified that he determined the value of the fuel tank by "research[ing] the value of similar products ... on the Internet through Google and other search engines for similar products." He stated that he decided to lower the price and sold the tank to an acquaintance for $800.

On July 5, 2016, the plaintiff filed a lawsuit for "Damages Based Upon Conversion." The plaintiff alleged that the fuel tank was not included in the real estate transaction and that the defendant had "converted, misappropriated, and refused to allow [him] to take possession of his property." Further, the plaintiff alleged that he was entitled to attorney fees in accordance with the buy/sell agreement.

At trial, several witnesses testified. However, only the fuel tank's manufacturer, Kenneth Hudson, of Kenny Hudson Construction, LLC, testified with regard to its value. Hudson, who was accepted by the trial court as an expert in construction, testified as follows: he owns and operates a construction company; he manufactured, constructed and delivered the fuel tank to the plaintiff in 2009; manufacturing fuel tanks is not a task he performs in his normal course of business; the fuel tank was a "custom" tank that he constructed from steel at the plaintiff's request; the tank was "an oilfield service tank" and was "built with a lot heavier material" than regular tanks; the tank was placed on two I-beam skids to allow it to be moved with a truck or tractor; the tank was not meant to be mounted to the ground; the total invoice price of the tank was $14,486.53; the cost of the materials used to manufacture the tank was $7,286.53, the cost of labor was $6,800, and the delivery charge was $400; due to rising costs in the industry, it would cost more than $14,000 to manufacture a similar tank in today's market; and $10,000 would be a reasonable price to pay for a used eight-year-old custom-made fuel tank.

On cross-examination, Hudson testified that it took approximately two months to construct the fuel tank. When he delivered the tank, he gave the plaintiff an invoice, and the plaintiff paid him with a check. During Hudson's direct testimony, the plaintiff had introduced an invoice from Kenny Hudson Construction, LLC, which indicated that the fuel tank had been purchased for $14,486.53. Thereafter, counsel for the defendant asked Hudson how he could have given the invoice to the plaintiff in 2009, when Kenny Hudson Construction, LLC, was not organized as a business entity until 2012. Hudson explained that he had been operating the construction company and performing jobs long before he formally received a tax identification number and filed the documents to form the limited liability company. He admitted that he was operating the company and issuing invoices in the name of "Kenny Hudson Construction, LLC" before he filed for limited liability status with the State of Texas. Hudson also testified that when he constructed the plaintiff's fuel tank, he was employed at a plant and was performing construction jobs "on the side." He reiterated that he was completing jobs and issuing invoices, despite not being "filed with the state."

At the conclusion of the trial, the trial court found that the fuel tank was a movable and was neither a component part nor a permanently installed improvement on the property. The court determined that the defendant was liable to the plaintiff for conversion and entered judgment in favor of the plaintiff in the amount of $3,500, "with interest from date of judicial demand and all costs of these proceedings." The court denied the plaintiff's request for attorney fees, finding that the provision for attorney fees in the contract "is inapplicable as said provision applies to the sale of the property, not the issue at hand[.]"

The plaintiff appeals.

DISCUSSION

The plaintiff contends the trial court erred in awarding $3,500 in damages. He argues that the evidence unequivocally established that he paid $14,486.53 for the fuel tank and the current value of the tank exceeds $10,000.

The measure of damages for wrongful conversion is the return of the property, or if it cannot be returned, the value of the property at the time of conversion. Dual Drilling Co. v. Mills Equip. Invs., Inc. , 1998-0343 (La. 12/1/98), 721 So.2d 853 ; Noel v. Landry , 531 So.2d 570 (La. App. 2 Cir. 1988), writ denied , 535 So.2d 746 (La. 1989). General damages may also be awarded when appropriate. Quealy v. Paine, Webber, Jackson & Curtis, Inc. , 475 So.2d 756 (La. 1985) ; Noel v. Landry , supra .

In the assessment of damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1 ; Martinez Mgmt., Inc. v. Caston , 39,500 (La. App. 2 Cir. 4/13/05), 900 So.2d 301. As in cases of contract, if the damages are susceptible of precise measurement, the court's discretion is circumscribed and damages will be measured by the loss sustained. La. C.C. arts. 1999, 1995 ; Martinez Mgmt., Inc. , supra ; National Union Fire Ins. Co. of Pennsylvania v. Spillars , 552 So.2d 627 (La. App. 2 Cir. 1989), writs denied , 556 So. 2d 61 (La. 1990).

In the instant case, the amount of damages was established by direct testimony. The plaintiff and Hudson provided uncontroverted testimony that the plaintiff paid $14,486.53 for the custom-made fuel tank in 2009. Hudson testified that the cost of replacing the tank in today's market would exceed $14,000. He further testified that the value of an eight-year-old used fuel tank of the same type and quality would exceed $10,000.

The defendant did not submit any evidence to contradict Hudson's testimony with regard to the value of the fuel tank. Rather, the defendant introduced into evidence a copy of Hudson Construction's business organization filing with the Office of the Secretary of State for the State of Texas. The document established that Hudson filed for a Certificate of Formation of a Limited Liability Company and registered his construction company on March 16, 2012. Hudson admitted that he did not register his company until 2012. However, he testified, without any evidence to the contrary from the defense, that he began operating his construction company under the name "Kenny Hudson Construction, LLC," long before he filed his documents with the secretary of state. We find that the date of Hudson's filing with the secretary of state has no bearing on the value of the fuel tank converted by the defendant.

As stated above, Hudson provided uncontroverted testimony that he manufactured the custom-made fuel tank and the cost of doing so in today's market would exceed the cost the plaintiff paid in 2009. Hudson also testified that the value of an eight-year-old fuel tank, made of the same material and quality as the tank converted by the defendant, would exceed $10,000. However, the trial court awarded the plaintiff $3,500 for the fuel tank without providing a basis for doing so. Consequently, we vacate the award of damages in the amount of $3,500, and we remand this matter to the trial court with instructions to provide some articulable basis for the award of damages or to revalue the fuel tank.

The plaintiff also contends the trial court erred in failing to award attorney fees. He argues that the buy/sell agreement contained a provision for the award of attorney fees "[i]in the event of non-performance by either Party[.]" In response, the defendant argues that she is not liable for attorney and expert witness fees because she did not breach the buy/sell agreement. Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract. Stutts v. Melton , 2013-0557 (La. 10/15/13), 130 So.3d 808 ; Sher v. Lafayette Ins. Co. , 2007-2441 (La. 4/8/08), 988 So.2d 186 ; Rivet v. State, Dept. of Transp. & Dev. , 1996-0145 (La. 9/5/96), 680 So.2d 1154 ; State, Dept. of Transp. & Dev. v. Williamson , 597 So.2d 439 (La. 1992). An award of attorney fees is, in essence, a type of penalty. Sharbono v. Steve Lang & Son Loggers , 1997-0110 (La. 7/1/97), 696 So.2d 1382 ; Benton v. Clay , 48,245 (La. App. 2 Cir. 8/7/13), 123 So.3d 212. They are not awarded to make the injured party whole, but rather to discourage a particular activity or activities on the part of the other party. Id.; Langley v. Petro Star Corp. of La. , 2001-0198 (La. 6/29/01), 792 So.2d 721.

In the instant case, the buy/sell agreement provided in pertinent part:

Property being purchased includes land, all buildings, component parts and permanently installed improvements thereon, including fencing, unless otherwise stated therein[.]
* * *
BREACH. In the event of non-performance by either Party, the other Party shall have the right to specific performance and/or damages and reasonable attorney fees, including the reasonable charges of an expert.
* * *

In short, by virtue of the buy/sell agreement, the plaintiff agreed to sell the property and the defendant agreed to buy it for a specified price. The buy/sell agreement did not contain any provision with regard to allowing the plaintiff additional time to retrieve his movable property. After the buy/sell agreement was executed, the parties entered into a verbal agreement that allowed the plaintiff additional time to remove his movables from the property. The defendant breached the parties' subsequent verbal agreement by refusing to allow the plaintiff to remove his items.

Additionally, the instant cause of action did not arise from a contract dispute. The plaintiff filed an action in tort (conversion). There is no statutory provision that mandates the recovery of attorney fees for a tort lawsuit for conversion. Consequently, we find that the trial court did not err in failing to award attorney fees and expert witness fees. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we affirm the trial court's determination that the defendant is liable to the plaintiff for conversion; we affirm the denial of the plaintiff's demand for attorney fees and expert witness fees; we vacate the award of damages; and we remand this matter to the trial court with instructions to provide some articulable basis for the award of damages or to revalue the fuel tank. Costs of the proceedings in the district court and this appeal are assessed to the defendant, Kyndal Kay Schley.

AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS.

      The defendant did not appeal the trial court's determination on the issue of liability. Therefore, that determination is final.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Danny Ray BRADHAM, Appellant
    No. 51,889-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    DANNY RAY BRADHAM, Pro Se
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    JANET L. SILVIE, KODIE K. SMITH, SUZANNE M. WILLIAMS, Assistant District Attorneys
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   WILLIAMS, J.

The defendant, Danny Bradham, was charged by bill of information with possession of a Schedule II, Controlled Dangerous Substance ("CDS"), a violation of La. R.S. 40:967(C). Pursuant to a plea agreement, the defendant pled guilty as charged and was sentenced to six months' imprisonment at hard labor in conformity with an agreed-upon sentence. Defendant now appeals. The defendant's appellate counsel has filed an Anders brief and a motion to withdraw, advising that he has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal. For the following reasons, we affirm defendant's conviction and sentence and grant appellate counsel's motion to withdraw.

FACTS

The record shows that on April 18, 2017, defendant was charged with possession of methamphetamine. On that same day, defendant pled guilty as charged and was sentenced to six months' imprisonment at hard labor with credit for time served.

Defendant's guilty plea was made pursuant to an agreement with the state providing for the imposition of the aforementioned sentence and the dismissal of two misdemeanor charges arising out of the same incident. According to the factual basis read into the record during defendant's guilty plea, Shreveport Police Department officers found defendant in possession of suspected methamphetamine during a "Terry" stop after he was seen walking in the street. The North Louisiana Crime Lab confirmed the substance to be methamphetamine.

During his guilty plea colloquy, defendant stated that he wanted to make a " Crosby plea." The prosecutor responded, "We don't do that. We call them Alford pleas. We don't do that in here. We don't do that." Defendant then stated, "Well, it just reserves a few rights. I was just wondering if you would accept this, but okay." Nothing more was said regarding a Crosby or an Alford plea.

The district court then informed defendant of his constitutional rights pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He stated that he understood and wished to waive his rights. Defendant also acknowledged he understood that by pleading guilty he would be sentenced to six months' imprisonment and he was waiving his right to appeal his conviction. The trial court accepted the plea and immediately sentenced defendant in accordance with the plea agreement. In May 2017, defendant timely filed a pro se motion for appeal, which the trial court denied. Following an application for writ of supervisory review, this court ordered the perfection of defendant's appeal and the Louisiana Appellate Project was appointed to represent him.

The defendant's appellate counsel has filed an Anders brief and a motion to withdraw, alleging that he could find no non-frivolous issues to raise on appeal. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176 ; State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Appellate counsel's brief outlines the procedural history of the case, the agreement under which defendant's plea was entered and the actions of the trial court. The brief also contains "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, supra . Additionally, appellate counsel certifies that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders , Jyles and Mouton, supra .

DISCUSSION

In his pro se brief, defendant seems to contend the conviction and sentence are illegal, his trial counsel was ineffective and he invoked Crosby . However, defendant does not provide any argument to support these assertions or explain how Crosby applies to his guilty plea. The state did not file an appellate brief.

Generally, a valid, unqualified plea of guilty waives a defendant's right to appeal all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby , 338 So.2d 584 (La. 1976) ; State v. Burks , 47,587 (La. App. 2 Cir. 1/16/13), 108 So.3d 820, writ denied , 2013-0424 (La. 7/31/13), 118 So.3d 1116. A defendant's guilty plea also waives any right to question the merits of the state's case and factual basis for the plea. State v. Shaw , 49,876 (La. App. 2 Cir. 5/20/15), 166 So.3d 1185, writ denied , 2015-1247 (La. 6/3/16), 192 So.3d 755. However, subject to the trial court's acceptance, a defendant may enter a plea of guilty while simultaneously reserving identified pre-plea errors for appellate review, referred to as a " Crosby plea." The function of a Crosby plea is to permit a fair and efficient review of a central issue when the pre-plea ruling on that issue, if erroneous, would mandate reversal of any resulting conviction. State v. Crosby, supra ; State v. Thomas , 28,790 (La. App. 2 Cir. 10/30/96), 683 So.2d 1272.

The courts usually review guilty pleas only to ensure that they were both counseled and voluntary. State v. Brooks , 38,963 (La. App. 2 Cir. 9/22/04), 882 So.2d 724, writ denied , 2004-2634 (La. 2/18/05), 896 So.2d 30. The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Brooks, supra ; State v. Garth , 622 So.2d 1189 (La. App. 2 Cir. 1993). A valid guilty plea requires a showing that a defendant was informed of and waived his constitutional rights to trial by jury, to confrontation and to the privilege against compulsory self-incrimination. Boykin v. Alabama, supra ; State ex rel. Jackson v. Henderson , 260 La. 90, 255 So.2d 85 (1971) ; State v. Monroe , 25,825 (La. App. 2 Cir. 3/30/94), 635 So.2d 481. Where the record establishes that an accused was informed of and waived his Boykin rights, then the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Wynne , 40,921 (La. App. 2 Cir. 4/12/06), 926 So.2d 789.

A violation of La. R.S. 40:967(C) carries a sentence of imprisonment of up to five years, with or without hard labor, and a fine of up to $5,000. A defendant cannot seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C.Cr.P. art. 881.2 ; State v. Young , 96-0195 (La. 10/15/96), 680 So.2d 1171.

Generally, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR") in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe , 418 So.2d 570 (La. 1982) ; State v. Ellis , 42,520 (La. App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied , 2007-2190 (La. 4/4/08), 978 So.2d 325.

A review of the record shows no non-frivolous issues and no arguments or rulings which arguably support an appeal. The defendant filed a pro se appellate brief, but raised no meritorious assignments of error. The record shows that defendant was properly advised of his Boykin rights, understood the plea agreement, and voluntarily pled guilty. We find no errors patent regarding the bill of information, the guilty plea, or the sentencing proceedings.

Upon pleading guilty to possession of methamphetamine, defendant was sentenced to six months' imprisonment at hard labor. This sentence is consistent with defendant's plea agreement. Thus, defendant is precluded from seeking review of his sentence as it was imposed in conformity with the plea agreement stated in the record at the time of the plea.

During the guilty plea colloquy, defendant told the trial court that he wanted to enter a Crosby plea to reserve "a few rights." However, defendant did not identify any pre-plea errors to reserve for appellate review, either at the guilty plea hearing or in his pro se appellate brief. In fact, the record reflects that there were no pre-plea rulings on any central issues that were subject to review.

Defendant's ineffective assistance of trial counsel contention is a matter more properly raised in a PCR application. In his pro se appellate brief, defendant merely makes a conclusory statement that his trial counsel was ineffective and fails to identify any instances in which his trial counsel provided ineffective assistance. To the contrary, we note that defendant received a substantial benefit from the plea agreement as two misdemeanors were dismissed and he received only six months' imprisonment at hard labor. In addition, during the guilty plea colloquy, defendant replied yes when asked by the court if he felt "comfortable" with the advice that he received from his trial counsel. Thus, defendant's assignments of error are without merit.

Based upon this record, there are no non-frivolous issues to raise on appeal. Accordingly, appellate counsel's motion to withdraw is hereby granted.

CONCLUSION

For the forgoing reasons, the defendant's conviction and sentence are affirmed. Appellate defense counsel's motion to withdraw is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; APPELLATE COUNSEL'S MOTION TO WITHDRAW GRANTED.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. John Lee WEBSTER, Appellant
    No. 51,865-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Christopher A. Aberle, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, R. LANE PITTARD, RICHARD R. RAY, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and McCALLUM, JJ.
   PITMAN, J.

Defendant John Lee Webster was charged with and convicted of illegal possession of stolen things over $1,500, in violation of La. R.S. 14:69(B)(1), and sentenced to ten years' imprisonment at hard labor. He now appeals his conviction and sentence. For the following reasons, his conviction and sentence are vacated; a conviction of illegal possession of stolen property valued at under $500, in violation of La. R.S. 14:69(B)(3), is entered; and the matter is remanded for resentencing.

FACTS

On October 26, 2015, Defendant was charged by bill of information with illegal possession of stolen things over $1,500, in violation of La. R.S. 14:69(B)(1). A trial was held February 6 and 7, 2017. The following facts were gleaned from the testimony of the state's witnesses.

John Russell Cox, formerly a detective with the Bossier City Police Department, testified that in August 2015, he was called to investigate an incident at Bobby Brannon Heating & Air ("BBH & A"). Bobby Brannon, the owner of BBH & A, complained that some blank payroll checks had been stolen from his office. Some of the stolen checks were later cashed at various places in Bossier City, Louisiana, including several Thrifty Liquor stores.

In August 2015, Det. Cox received a report that a man was at a Thrifty Liquor store in Bossier City trying to cash a payroll check, No. 28351, from BBH & A, made out to "Dustin Hall," in the amount of $1,223. He arrived at the store, recognized the check as stolen and arrested the suspect, Justin Hall. Hall told Det. Cox that he had obtained the check from Jennifer Pawlik. Subsequently, Jennifer Pawlik was apprehended. He learned from Pawlik that she had obtained the check from Defendant, who was to receive $500 from the cash proceeds of the check. The check was admitted into evidence.

At Det. Cox's request, Pawlik texted Defendant to meet her in a parking lot where Det. Cox and Pawlik, along with several other officers, waited for his arrival. Defendant arrived as scheduled, driving an old Buick, and was immediately taken into custody. The Buick was impounded and searched.

Inside the vehicle, officers found nine of the missing payroll checks and one check stub. Six of the checks were blank and were found on the rear floorboard of the car. One of the checks found in the center console of the vehicle, Check No. 28372, was written to payee "Quinton Stewart," in the amount of $380, with the payor's alleged signature, Robert S. Brannon. The back of the check was indorsed with the signature of Quinton Stewart. Check No. 28373 was written out only to "Ouin" with no amount or signature of the payor. Check No. 28374 was written to payee "Quinton Stewart" in the amount of $350, but this check did not have a signature on the line for the payor. These checks were admitted into evidence.

Mr. Brannon testified that on August 18, 2015, he received a phone call at 2:00 a.m. from a friend stating that his business was on fire. The next day he was allowed into the building. He noticed that his office door had been "kicked down" and his file cabinet, containing at least 100 payroll checks and some checkbooks, was missing. He immediately notified his bank of the theft.

Mr. Brannon identified the nine checks found in Defendant's vehicle as some of the payroll checks that were stolen from his office. He identified 17 stolen payroll checks that had been cashed. He testified that he did not know any of the persons identified as payees on the checks, one of which included payee "Quinton Stewart," and that he did not know who had forged the checks. He also testified that he did not know Defendant, that Defendant had never been an employee of BBH & A and that he had not given Defendant authority to possess any of the payroll checks. He stated that the payroll checks were purchased from a check vendor, but that he did not know the purchase price for each check since they were purchased in bulk.

Jennifer Pawlik testified that she met Defendant on Facebook in August 2015 after he posted pictures of "lots of money" saying that it was "easy money." She contacted him through Facebook and asked how she could also make "easy money." He told her that he had obtained the checks from a business that burned down, and the owner was unaware that the checks survived the fire. She stated that on August 23, 2015, she met with Defendant, and he gave her two blank payroll checks from BBH & A. She identified Check No. 28351, made payable to Dustin Hall for $1,223, as one of the two checks that Defendant had given her. She testified that Defendant instructed her to make out the checks for "around a thousand dollars," but no more than $1,500. In return, she was to give Defendant $500 from the proceeds of each of the cashed checks. She stated that she then gave the completed check to her friend, Justin Hall, to cash and that she did not expect to receive any of the proceeds from the check. She confirmed that she had facilitated the meeting with Defendant in the parking lot where he was apprehended by the Bossier City Police Department. The state rested, and the defense did not present evidence.

Defendant was convicted as charged. He filed a motion for new trial, which was denied. He was sentenced to ten years at hard labor. This appeal followed.

DISCUSSION

Defendant argues that the evidence is insufficient to establish that the value of the stolen blank checks exceeded $1,500 or even $500. He claims the evidence supports no more than a misdemeanor grade violation of La. R.S. 14:69.

Defendant does not dispute that he was in possession of stolen payroll checks. Rather, he argues that the state failed to show that the value of the checks was $1,500 or more. He contends that the value of the stolen checks in his possession was "merely the cost of the blank checks," which he argues, for purposes of gradations of a theft-related offense, is the face value of the check. He also argues that the value of the stolen checks with respect to the offense of illegal possession of stolen things is the value of the checks at the time of their theft. He asserts that checks found in his actual or constructive possession have only nominal value because they were blank at the time of their theft and no evidence was presented proving otherwise. Because the stolen checks had only nominal value, he maintains that he could have been convicted of, at most, misdemeanor possession of stolen things. Therefore, he submits that his felony conviction must be reversed.

The state contends that the value of the stolen payroll checks is the face value of all of the cashed stolen payroll checks (which the state mistakenly identified as $4,380). It asserts that, regardless of the value of the checks that were actually cashed, the face value of the completed check found in Defendant's vehicle, written for $380, and the $1,223 face value of the check forged by Pawlik, were over $1,500.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Breedlove , 51,055 (La. App. 2 Cir. 1/11/17), 213 So.3d 1195, writ denied , 17-0270 (La. 11/6/17), 229 So.3d 468. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Breedlove , supra ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297. An appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Kelly , 15-0484 (La. 6/29/16), 195 So.3d 449 ; State v. Taylor , 47,400 (La. App. 2 Cir. 7/18/12), 103 So.3d 405, writ denied, 12-1898 (La. 3/8/13), 109 So.3d 355.

In 2015, La. R.S. 14:69 provided, in pertinent part, as follows:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
B.(1) Whoever commits the crime of illegal possession of stolen things, when the value of the things is one thousand five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

There are four essential elements for the crime of possession of a stolen thing: (1) the item was stolen; (2) the item was of value; (3) the defendant knew or should have known that the property was stolen; and (4) the defendant intentionally possessed, procured, received or concealed the property. State v. Walker , 350 So.2d 176 (La. 1977) ; State v. Morris , 41,651 (La. App. 2 Cir. 12/13/06), 945 So.2d 212, writ denied , 07-0087 (La. 9/21/07), 964 So.2d 331.

The prosecution need not prove actual possession in order to obtain a conviction for possession of stolen things. Instead, a conviction may be supported by a showing of constructive possession. Such possession exists when the item is within the defendant's dominion or control. State v. Morris , supra . In some cases, possession may be established by shared control. See State v. Drake , 45,172 (La. App. 2 Cir. 5/19/10), 37 So.3d 582, writ denied , 10-1468 (La. 1/14/11), 52 So.3d 899 (holding that possession of a controlled dangerous substance can be established by shared control). See also State v. Allen , 15-231 (La. App. 5 Cir. 10/14/15), 177 So.3d 771 ; State v. Ceaser , 09-236 (La. App. 3 Cir. 11/4/09), 21 So.3d 1122, writ denied , 09-2734 (La. 6/4/10), 38 So.3d 300.

In order to convict Defendant of theft of $1,500 or more, the state must prove that the value of the stolen checks in his actual or constructive possession equaled or exceeded $1,500. The valuation of blank checks for the purposes of grading an offense is a question of first impression in Louisiana. After examining Louisiana jurisprudence concerning the value of stolen checks and examining jurisprudence from other jurisdictions concerning the value of stolen blank checks, we conclude that the state failed to show that the value of the stolen payroll checks in Defendant's actual or constructive possession was $1,500 or more.

In State v. Harris , 97-0778 (La. 3/4/98), 708 So.2d 387, the stolen checks were completed checks, with an amount payable, a payee and a payor's signature. See also State v. Thomas , 99-1985 (La. App. 4 Cir. 1/5/00), 751 So.2d 979. Specifically, in State v. Harris , supra , the defendant stole a purse which held a check made payable to the owner of the purse in the amount of $161.50. The defendant was convicted of theft of items valued between $100 and $500 because the "face value" of the check was over $100.00. The appellate court reversed. The supreme court granted the state's writ to address the res nova question of how to value a stolen check for the purposes of grading the seriousness of the offense under Louisiana's general theft statute, La. R.S. 14:67. In reaching its decision, the supreme court looked to other jurisdictions and noted that they uniformly held that the value of a stolen check, in the absence of an applicable statute, is the amount for which it is drawn prior to its theft. Reversing the appellate court and reinstating the conviction for theft of items valued at more than $100, the supreme court stated:

We hold the value of a stolen check for purposes of grading the offense under La. R.S. 14:67(B) is its face value, regardless of whether it has been endorsed by the victim. In reaching this conclusion, we are persuaded by the reasoning employed in the decisions rendered by the majority of the courts as discussed above. The face amount of the check is what the victim was entitled to receive immediately prior to the theft and is the amount the victim therefore lost.

The evidence in the case at bar established that Defendant was in actual possession of the checks found in the vehicle that he drove to the parking lot where he was arrested. Only one of those checks was completed, that to Quinton Stewart, but Mr. Brannon testified that the check was forged. At trial, the state also attributed the check found in Justin Hall's possession as being in the Defendant's shared or constructive possession. That check was forged by Pawlik. Defendant's control over the latter check, or any of the other forged and already cashed payroll checks, is irrelevant to this charge of illegal possession of stolen things because they are not evidence of a debt or a legal obligation between the payor and payee and they do not have any ascertainable value over the value of the paper upon which they are written.

No testimony was provided regarding the cost of each payroll check. Rather, Mr. Brannon stated that he had no information regarding how much he paid for each payroll check. He stated that his company buys the checks in bulk, but could not quantify the number of checks ordered with the price paid per order. Thus, the evidence reflects that the value of the checks in Defendant's actual or constructive possession was nominal. Nominal value is sufficient to support a conviction for possession of stolen things. See La. R.S. 14:2(2), which defines "anything of value." State v. Harris , supra .

We find that the state proved the four elements of the crime of possession of stolen things; however, considering the evidence in a light most favorable to the prosecution, the state failed to prove that the payroll checks in Defendant's possession were worth more than $500, much less $1,500. Despite this fact, we need not discharge Defendant, but, instead, can find that the evidence supports a conviction of a lesser and included offense, which is a legislatively authorized verdict. See State v. Wright , 36,635 (La. App. 2 Cir. 3/7/03), 840 So.2d 1271.

The responsive verdicts to the crime of illegal possession of stolen things valued at $1,500 or more includes illegal possession of stolen things valued at less than $500. See La. C. Cr. P. art. 814(D) ; La. R.S. 14:69(B)(3). The responsive verdict in this case included a verdict of illegal possession of stolen things at the lesser value. Accordingly, Defendant's conviction and sentence are vacated, a conviction of illegal possession of stolen property valued under $500 is entered and this matter is remanded for resentencing of Defendant for the crime of illegal possession of stolen property valued under $500.

CONCLUSION

For the aforementioned reasons, the conviction and sentence of Defendant John Lee Webster are vacated, a conviction of illegal possession of stolen property valued at under $500 is entered and the matter is remanded for sentencing.

CONVICTION AND SENTENCE VACATED; CONVICTION OF ILLEGAL

POSSESSION OF STOLEN PROPERTY VALUED AT UNDER $500 ENTERED; MATTER REMANDED FOR RESENTENCING .

      Defendant was charged and convicted under an earlier version of La. R.S. 14:69, which has now been amended.


text:
    Robert G. MURPHY and Pamela Murphy, Plaintiffs-Appellants v. Shauntal SAVANNAH; State Farm Mutual Automobile Insurance Company, a.k.a. State Farm; State of Louisiana, Through the Department of Transportation and Development, Defendants-Appellees
    No. 51,906-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018 Rehearing Denied May 17, 2018
    MORRIS, DEWETT & SAVOIE, LLC, By: B. Trey Morris, G. Adam Savoie, Meagan E. Shadinger, Shreveport, Counsel for Appellants, Robert G. Murphy and Pamela Murphy
    KENNETH R. ANTEE, JR., LOUISIANA DEPARTMENT OF JUSTICE, By: Gregory S. Barkley, Assistant Attorney General, Shreveport, Counsel for Appellee, State of Louisiana through the DOTD
    Before WILLIAMS, GARRETT, and STEPHENS, JJ.
   WILLIAMS, J.

In this lawsuit arising out of a collision between an automobile and a motorcycle, Robert Murphy and Pamela Murphy appeal a summary judgment dismissing their claims against the Louisiana Department of Transportation and Development. Concluding that the affidavit from the Murphys' expert presented factual issues precluding summary judgment, we reverse and remand.

FACTS

On December 5, 2012, Robert Murphy was driving his motorcycle south on a two-lane stretch of Louisiana Highway 538 in Shreveport known as Old Mooringsport Road. Highway 538 is part of the Louisiana state highway system. At the same time, Shauntal Savannah was driving her Nissan Maxima in the opposite direction on that same stretch of Old Mooringsport Road. Their vehicles collided at the intersection of Old Mooringsport Road and Ravendale Drive ("the intersection") when Savannah turned left in front of Murphy. The motorcycle struck the passenger-side door of the Maxima in Murphy's lane of traffic. The intersection has been described as a "Y-type" intersection.

In August 2013, the plaintiffs, Robert Murphy and his wife, Pamela Murphy, filed a petition for damages against the defendants, Shauntal Savannah ("Savannah"), her liability insurer, State Farm Mutual Automobile Insurance Company ("State Farm") and the State of Louisiana through the Department of Transportation and Development ("DOTD"). The Murphys alleged that DOTD was at fault because of its failure to warn motorists of a dangerous condition and failure to remedy the defective design of the intersection that created an unreasonably dangerous condition of which DOTD had actual and constructive notice.

DOTD filed an answer and amended answer denying knowledge of any alleged unreasonably dangerous condition and asserting the fault of third parties, including Savannah and Robert Murphy. In December 2013, following a settlement, the Murphys dismissed their claims against Savannah and State Farm.

In February 2017, DOTD filed a motion for summary judgment alleging that the accident was caused solely by the grossly negligent actions of Savannah and that the Murphys could not present any evidence of DOTD's negligence or liability. Attached to the motion for summary judgment were an affidavit from a DOTD civil engineer, an affidavit from an expert engineer, and excerpts from the deposition transcripts of the two drivers.

Kevin Blunck is a civil engineer employed as a District Area Engineer by DOTD in District 4, which includes all of Caddo Parish. He was charged with coordinating all maintenance operations for state highways located in Caddo and Red River Parishes, making him personally familiar with any issues, transactions, complaints, construction, and maintenance projects having to do with Highway 538 in Caddo Parish. Blunck testified that at the time of the accident, there was no record of any DOTD repairs, maintenance projects, or construction projects that were being performed on the section of Highway 538 located at or near the intersection. Blunck stated that there were no records of any complaints having been made to DOTD, within 180 days prior to the accident, regarding any alleged deficiencies or defects with respect to the section of Highway 538 located at or near the intersection.

Dr. Joseph Blaschke is a civil engineer who was retained by DOTD to investigate and evaluate the circumstances surrounding the accident. He was asked to address whether the traffic control devices on Highway 538 at or near the intersection were in compliance with the Manual on Uniform Traffic Control Devices ("MUTCD") at the time of the crash and whether there were sufficient sight distances for motorists on Highway 538 to safely observe both the traffic control devices and any oncoming traffic. As part of his investigation, Dr. Blaschke inspected the crash site twice and conducted lines-of-sight and time/distance evaluations (relative to available sight distances) for motorists operating vehicles in the vicinity of the intersection. He also reviewed photographs of the crash scene, the accident report and the deposition transcripts of Robert Murphy and Savannah.

Dr. Blaschke testified that his investigation revealed that the traffic control devices in place at the time of the accident on Highway 538 at the intersection were in compliance with MUTCD. He stated that his evaluation of the roadways did not reveal any roadway abnormalities or design deficiencies on Highway 538 at the intersection at the time of the crash that would be considered in violation of or inconsistent with any roadway design standards or guidelines applicable at the time of original construction. He added that there were sufficient lines of sight (or sight distances) available for both drivers to observe the various traffic control devices that were in place along their respective travel routes and there were sufficient stopping sight distances available for both drivers to observe the approaching intersection, see any vehicle present at or approaching the intersection, and negotiate the intersection safely.

Dr. Blaschke concluded that the area of Highway 538 at the intersection was not unreasonably dangerous. He further concluded that all of the physical evidence and the testimony of the two drivers revealed that the sole cause of the accident was Savannah's failure to yield the right of way to Robert Murphy. According to Blaschke, he reached these conclusions because both drivers had testified that there were no sight distance restrictions relative to the geometry of the roadway that prohibited either driver from seeing the other's vehicle prior to the crash and Savannah had testified that she was at fault in causing the accident.

In her deposition, Savannah testified that she lived near the accident site and that she made a left turn onto Ravendale Drive from Old Mooringsport Road every day that she drove her children to school. She described how a truck was in front of her on Old Mooringsport Road before she turned left to go onto Ravendale Drive. She claimed that her vehicle came to a complete stop and that she looked for oncoming traffic prior to starting her left turn. She also claimed that her left turn signal was on. Savannah asserted that she was at fault for the accident because she never saw Murphy's motorcycle before making her turn. She denied that a curve on Old Mooringsport Road prevented her from seeing the oncoming motorcycle.

Murphy testified in his deposition he was familiar with the section of Old Mooringsport Road near the intersection as that was his regular route to work each morning. He recalled that there was not much traffic that morning. Murphy denied that there were any sight obstructions preventing him from seeing oncoming traffic as he drove on a curve toward the intersection. His deposition testimony contradicted Savannah's testimony that she came to a complete stop and had activated her left turn signal before commencing her turn. He maintained that Savannah was still approaching the intersection when he first saw her vehicle.

Plaintiffs argued in opposition to the motion for summary judgment that the intersection was unreasonably dangerous because it was constructed at a 20-degree acute angle which made it susceptible to left-turning crashes. Attached to plaintiffs' opposition was an affidavit from V.O. Tekell, Jr., a traffic operations engineer licensed by the Institute of Transportation Engineers. Tekell had served as the Transportation Engineer for Lafayette Parish Consolidated Government. He noted that Ravendale Drive formed a "Y" intersection with Old Mooringsport Road, and that the intersection was constructed at an extremely acute angle of less than 20 degrees. He quoted the 1940 AASHO (American Association of State Highway Officials) publication, which stated that for such intersections, "at any but slow speeds these nearly head-on crossings at a small angle are dangerous." He added that the publication advised that regardless of the type of intersection, it is desirable that intersecting roads meet at right angles for both safety and economy. He also testified that AASHO has continually reaffirmed that intersecting roads should meet at or nearly at right angles for economy and safety, and that acute-angle intersections increase the exposure time of vehicles crossing the main traffic flow.

Tekell noted that for over 70 years, AASHO has cautioned state officials that acute angle intersections, especially ones as extreme as the intersection at issue, are particularly susceptible to left-turning crashes similar to the one that occurred between Murphy and Savannah. Tekell further noted that although it was not known when the intersection was constructed, there had been over 50 years of notice that the design is flawed and accident-prone. Finally, Tekell concluded that the layout of the intersection was a contributing factor in causing the crash that occurred.

DOTD filed a motion to strike the exhibits attached to Tekell's affidavit except for his curriculum vitae. DOTD contended that the documents were not properly authenticated and did not fall within the category of documents authorized under the Code of Civil Procedure to be filed in support of or in opposition to the motion for summary judgment. The Murphys countered that Tekell would be able to rely upon hearsay or otherwise inadmissible documents at trial, and that the documents became properly authenticated for this summary proceeding when Tekell incorporated them by reference in his affidavit. The trial court granted the motion to strike.

After a hearing, the trial court sustained the motion for summary judgment, noting that Tekell never rendered an opinion that the intersection was unreasonably dangerous, and dismissed all of the Murphys' claims. The Murphys appeal the judgment.

DISCUSSION

Summary Judgment

The Murphys contend the trial court erred in granting summary judgment. They argue that a genuine issue of fact exists as to whether the design of the intersection was a cause of the accident.

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the district court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880.

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764.

The supreme court recently restated what is required of the moving party and the non-moving party on a motion for summary judgment:

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See La. C.C.P. art. 966(D)(1) ; see also Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.
When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B) ; see also Dejoie v. Medley , 2008-2223 (La. 5/5/09), 9 So.3d 826, 832. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall , 2003-1488 (La. 4/23/04), 874 So.2d 131, 137.

Larson v. XYZ Insurance Company , 2016-0745 (La. 5/3/17), 226 So.3d 412.

In ruling on a motion for summary judgment, the district judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett , supra .

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 2000-2507 (La. 12/8/00), 775 So.2d 1049 (per curiam).

DOTD's Liability

Louisiana law allows plaintiffs to pursue tort claims against public entities such as the DOTD based on La. C.C. arts. 2315 and 2317 and La. R.S. 9:2800. Henderson v. Nissan Motor Corp. , 2003-0606 (La. 2/6/04), 869 So.2d 62 ; Skulich v. Fuller , 46,733 (La. App. 2 Cir. 12/14/11), 82 So.3d 467. Regardless of the theory of recovery, the legal analysis is the same. Passon v. Fields , 50,635 (La. App. 2 Cir. 5/18/16), 196 So.3d 645. Plaintiffs must show that: (1) DOTD had custody of the thing that caused the plaintiffs' injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs' injuries. Fontenot v. Patterson Ins. , 2009-0669 (La. 10/20/09), 23 So.3d 259.

The duty placed upon DOTD was discussed in Fontenot :

The primary duty of the DOTD is to continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. It is the DOTD's knowledge, constructive or actual, which gives rise to the obligation to take adequate measures necessary to prevent injury. Notably, the DOTD's duty of care extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive.
Nonetheless, this Court is also cognizant that the DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Nor is the DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. This Court has also held that the DOTD's failure to design or maintain the state's highways to modern standards does not establish the existence of a hazardous defect in and of itself. In other words, we will not impose liability for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Whether the DOTD breached its duty, that is, whether the intersection was in an unreasonably dangerous condition is a question of fact and will depend on the facts and circumstances of each case.

Id. , 2009-0669 at pp. 15-16, 23 So.3d at 270-271 (citations omitted).

Unreasonable risk of harm

DOTD has no duty to bring old highways up to current safety standards, unless the highway has undergone major reconstruction. Nevertheless, the State has a duty to correct conditions existing on old highways that are unreasonably dangerous. Cormier v. Comeaux , 98-2378 (La. 7/7/99), 748 So.2d 1123 ; Toston v. Pardon , 2003-1747 (La. 4/23/04), 874 So.2d 791.

In Broussard v. State ex. rel. Office of State Bldgs. , 2012-1238 (La. 4/5/13), 113 So.3d 175, the supreme court discussed the analysis to determine the presence of an unreasonable risk of harm:

We have described the question of whether a defect presents an unreasonable risk of harm as "a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts." Reed v. Wal-Mart Stores, Inc. , 97-1174, p. 4 (La. 3/4/98), 708 So.2d 362, 364 (quoting Tillman v. Johnson , 612 So.2d 70 (La.1993) (per curiam) ). As a mixed question of law and fact, it is the fact-finder's role-either the jury or the court in a bench trial-to determine whether a defect is unreasonably dangerous. Thus, whether a defect presents an unreasonable risk of harm is "a matter wed to the facts" and must be determined in light of facts and circumstances of each particular case. E.g. , Dupree v. City of New Orleans , 99-3651, pp. 13-14 (La. 8/31/00), 765 So.2d 1002, 1012 (citation omitted); Reed , 97-1174 at p. 4, 708 So.2d at 364.
To aid the trier-of-fact in making this unscientific, factual determination, this Court has adopted a risk-utility balancing test, wherein the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the social utility of the thing, and the cost and feasibility of repair. See , e.g. , Reed , 97-1174 at p. 5, 708 So.2d at 365 ; Boyle v. Board of Sup'rs, Louisiana State Univ. , 96-1158 (La. 1/14/97), 685 So.2d 1080, 1083 ; Specifically, we have synthesized this risk-utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. E.g. , Dauzat v. Curnest Guillot Logging, Inc. , 08-0528, p. 5 (La. 12/2/08), 995 So.2d 1184, 1186-87 (per curiam); Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533, pp. 9-10 (La. 2/20/04), 866 So.2d 228, 235 ; Pitre v. Louisiana Tech. Univ. , 95-1466, pp. 12-16 (La. 5/10/96), 673 So.2d 585, 591-93.

Broussard , 2012-1238 at pp. 9-10, 113 So.3d at 183-84.

Broussard should not be interpreted as a limit on summary judgment practice involving issues of unreasonable risk of harm. Allen v. Lockwood , 2014-1724 (La. 2/13/15), 156 So.3d 650. The granting of summary judgment is not precluded in cases where the plaintiff is unable to produce factual support for his claim that a complained-of condition or thing is unreasonably dangerous. Id. In such a procedural posture, the court's obligation is to determine if there is a genuine issue of material fact as to whether the condition or thing created an unreasonable risk of harm. Id.

DOTD notes that it is well settled that compliance with the provisions of the MUTCD, which is mandated by La. R.S. 32:235, is prima facie proof of DOTD's absence of fault when an injured motorist attempts to predicate DOTD's liability on improper signalization or road marking. See Skulich v. Fuller , supra . Prima facie proof is sufficient only if not rebutted or contradicted. Id. However, plaintiffs are predicating DOTD's liability in this matter mainly on the design of the intersection, not the signalization or road marking of the intersection.

We are mindful of the role of expert witnesses. La. C.E. art. 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. To defeat a properly supported motion for summary judgment, an expert's opinion must be more than a conclusory assertion about ultimate legal issues. Lee v. McGovern , 49,953 (La. App. 2 Cir. 7/1/15), 169 So.3d 814.

In the present case, Dr. Blaschke concluded that the area of Highway 538 at or near the intersection was not unreasonably dangerous. Although plaintiffs' expert Tekell did not expressly testify that the intersection was unreasonably dangerous, that omission is not fatal in light of other assertions made by Tekell in his affidavit. For example, in Willis v. Medders , supra , a summary judgment case, the supreme court noted that the statement in the affidavit from the plaintiff's engineering expert that a proposed alternative design was being used allowed the reasonable inference that such alternative was economical and satisfied the risk-utility standard. In Dupas v. Travelers Property Cas. Ins. Co. , 2000-12 (La. App. 3 Cir. 5/3/00), 762 So.2d 127, writ denied , 2000-1541 (La. 6/30/00), 766 So.2d 548, the defendant argued that a directed verdict should have been granted because although the plaintiff's expert testified that a display platform at a store created a hazard, he did not testify that this hazard was unreasonably dangerous. Dismissing this argument, the appellate court noted that "unreasonably dangerous" is a conclusion which only the trier of fact may draw. The court determined that the evidence and inferences allowed a reasonable person to find that the platform presented an unreasonably dangerous condition.

In his affidavit in this case, Tekell characterized the intersection as a "Y" intersection with an extremely acute angle of less than 20 degrees. He stated that according to AASHO: (i) it is desirable that intersecting roads meet at right angles for economy and for safety; (ii) acute angle intersections increase the exposure time of vehicles crossing the main traffic flow; and (iii) acute angle intersections are particularly susceptible to left-turning crashes. Tekell added that there had been over 50 years of notice that this design is flawed and accident prone. He concluded that the layout of the intersection was a contributing factor in causing the crash. After considering these statements in Tekell's affidavit, a fact finder could reasonably draw the inference that the intersection was unreasonably dangerous. Accordingly, a genuine issue of material fact exists regarding whether the design of the intersection constituted an unreasonable risk of harm.

Notice

A public entity's liability for a defective thing within its custody or care is ordinarily analyzed under La. R.S. 9:2800(C), which provides that a person shall not have a cause of action based solely on liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence and failed to remedy the defect after a reasonable opportunity to do so. Broussard v. State ex. rel. Office of State Bldgs., supra .

Constructive notice is the existence of facts which infer actual knowledge. La. R.S. 9:2800(D). This definition allows for the inference of actual knowledge to be drawn from the facts demonstrating that a defective condition had existed for such a period of time that it should have been discovered and repaired if the public entity had exercised reasonable care. Johnson v. City of Bastrop , 41,240 (La. App. 2 Cir. 8/1/06), 936 So.2d 292.

DOTD civil engineer Blunck asserted in his affidavit that there were no records of any complaints to DOTD by any person, entity, agency, or municipality regarding any alleged deficiencies or defects having to do with the section of Highway 538 located at the intersection within at least 180 days prior to the accident. However, Tekell testified that for over 70 years, AASHO had cautioned that acute angle intersections were particularly susceptible to left-turning crashes. He also testified that there was over 50 years of notice from AASHO that the design of acute angle intersections was flawed and accident prone. These statements by Tekell created a genuine issue of material fact regarding the element of DOTD's notice of the defect.

Causation

DOTD contends that the accident was solely caused by the grossly negligent actions of Savannah when she failed to yield and made a left turn in the path of the oncoming motorcycle.

"The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard." La. R.S. 32:122. Because a left turn is one of the most dangerous maneuvers for a driver to execute, there is a presumption of negligence on a left-turning motorist involved in a motor vehicle accident. Green v. Nunley , 42,343 (La. App. 2 Cir. 8/15/07), 963 So.2d 486.

However, the inquiry regarding causation does not end there. For example, this court has recognized that notwithstanding the presumption of negligence attributed to a left-turning driver, a favored motorist can still be assessed with comparative fault if his substandard conduct contributed to the cause of the accident. Baker v. State Farm Mut. Auto Ins. Co. , 49,468 (La. App. 2 Cir. 1/21/15), 162 So.3d 405.

Although Savannah accepted fault for causing the accident, her statement does not preclude the possibility that another party, such as DOTD, may have been partially at fault. Savannah testified that she guessed she did not see the motorcycle because of a truck in front of her. While Savannah claimed only that the truck in front of her prevented her from seeing the motorcycle, this does not discount the role that the intersection design may have played in putting her in a position where her view of oncoming traffic was obscured by a truck in front of her that continued traveling on Old Mooringsport Road.

We note that the failure of a driver to maintain control of a vehicle does not relieve DOTD of its duty to keep the highways safe. The fact that more than one party can contribute to the harm is the reason for our comparative fault system. See Campbell v. Louisiana Dept. of Transp. & Development , 94-1052 (La. 1/17/95), 648 So.2d 898. Moreover, causation is a factual issue to be determined by the fact finder. Cay v. State, DOTD , 93-0887 (La. 1/14/94), 631 So.2d 393.

Tekell opined in his affidavit that the layout of the intersection was a contributing factor in causing the accident, contradicting Blaschke's opinion that the accident was caused solely by the fault of Savannah. This conflicting expert testimony creates a genuine issue of material fact regarding the element of causation. Based upon this record, we conclude that genuine issues of material fact exist as to whether the design of the intersection is unreasonably dangerous, whether DOTD had notice of the hazard and whether the intersection design was a cause of the damages. Consequently, the district court erred in granting summary judgment.

Motion to strike

The Murphys contend the trial court erred in striking documents that were attached to Tekell's affidavit. The Murphys argue that the exhibits were incorporated by reference in Tekell's affidavit and were properly certified for the purpose of summary judgment.

When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. La. C.C.P. art. 1636(A). It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives the right to complain of the exclusion on appeal. Hudspeth v. Smith , 42,647 (La. App. 2 Cir. 11/7/07), 969 So.2d 793.

The Murphys made no proffer of the documents which were stricken from the record. Accordingly, they waived their right to complain of this exclusion on appeal. The assignment of error lacks merit.

CONCLUSION

Based on the foregoing reasons, the district court's judgment granting the motion for summary judgment is reversed and this matter is remanded for further proceedings. Costs of this appeal in the amount of $324.50 are assessed to DOTD.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GARRETT, STONE and STEPHENS, JJ.

Rehearing denied.

      AASHO was later known as AASHTO (American Association of State Highway and Transportation Officials). For the sake of simplicity, AASHO will also refer to the later name.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Eldrick Dontrail CARTER, Appellant
    No. 51,827-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, HOLLY A. CHAMBERS-JONES, Assistant District Attorney, Counsel for Appellee
    Before STONE, COX, and MCCALLUM, JJ.
   STONE, J.

A jury found Eldrick Dontrail Carter guilty of the second degree murder of Willie James, the attempted second degree murder of Rodney Chaney, and the aggravated battery of Chiquita Williams. The trial court sentenced Carter to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, 20 years at hard labor with the first 10 years without benefit of probation, parole, or suspension of sentence, and five years at hard labor with the first year without benefit of probation, parole, or suspension of sentence, respectively. The sentences were imposed to run concurrently.

Carter now appeals his convictions and sentences. Carter's appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging there are no nonfrivolous issues upon which to base an appeal. Carter filed a pro se brief alleging three assignments of error. For the following reasons, appellate counsel's motion to withdraw is granted, and Carter's convictions are affirmed. We amend Carter's sentences, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

On June 16, 2013, Willie James ("James") hosted a Father's Day celebration at his home located at 3814 White Street, Monroe, Louisiana. One of the invited guests, Chiquita Williams ("Williams"), attended the party with her ex-boyfriend, Eldrick Dontrail Carter ("Carter"). At some point during the party, a disagreement ensued between Carter and another guest. After Carter failed to settle the disagreement amicably, James asked Williams to take Carter home, but Carter refused to leave. James also told Carter he needed to leave the party. Thereafter, Carter retrieved a gun from Williams' vehicle and began shooting into a crowd of people at the party. Rodney Chaney ("Chaney") and Williams suffered gunshot wounds and were rushed to the hospital. James suffered multiple gunshot wounds and was pronounced dead at the scene. Several witnesses identified Carter as the shooter.

On November 14, 2013, Carter was charged by bill of indictment with the second degree murder of James in violation of La. R.S. 14:30.1, and the attempted second degree murder of both Chaney and Williams in violation of La. R.S. 14:30.1 and La. R.S. 14:27. Carter's trial commenced on July 20, 2015. On July 24, 2015, a 12-person jury found Carter guilty of the second degree murder of James and the attempted second degree murder of Chaney. The jury found Carter guilty of the aggravated battery of Williams, which is a responsive verdict to attempted second degree murder.

Trial counsel filed a motion for new trial alleging the police failed to disclose possible exculpatory evidence by not including in its pretrial report the names of all persons who were present during the shooting and interviewed by police. Carter filed a pro se motion for new trial raising numerous complaints about his trial counsel, the district attorney, and the state's witnesses. Following a contradictory hearing on September 14, 2016, the trial court denied both motions.

On September 15, 2016, the trial court sentenced Carter to serve mandatory life imprisonment without benefit of probation, parole, or suspension for the second degree murder conviction. Carter was sentenced to 20 years at hard labor with the first 10 years without benefit of probation, parole, or suspension of sentence for the attempted second degree murder conviction, and five years at hard labor with the first year without benefit of probation, parole, or suspension of sentence for the aggravated battery conviction. The sentences were imposed to run concurrently. Carter filed a motion to reconsider sentence which was denied by the trial court.

Carter's motions for appeal and designation of the record were granted on March 31, 2017. Despite trial counsel raising the exculpatory evidence issue again in the motion for appeal, the record lodged on appeal lacked the transcript of the September 14, 2016, contradictory hearing on Carter's counseled and pro se motions for new trial.

The Louisiana Appellate Project was appointed to represent Carter on appeal. On August 14, 2017, upon lodging of the "incomplete" appellate record, Carter's appointed appellate counsel filed a motion to withdraw, together with an Anders brief, alleging he could find no nonfrivolous issues to raise on appeal. See, Anders, supra ; State v. Jyles , 1996-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 04/28/95), 653 So.2d 1176 ; and State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). On August 24, 2017, the district court clerk supplemented the record on appeal with the transcript of the September 14, 2016, contradictory hearing on the counseled and pro se motions for new trial. On September 20, 2017, this court ordered Carter's appellate counsel to review the supplemented appellate record and file a new brief that demonstrated compliance with Anders , Jyles , Mouton , and Benjamin and addressed the assignments of error raised by trial counsel.

On October 19, 2017, appellate counsel filed a second Anders brief in accordance with this court's order, along with another motion to withdraw. The brief reviewed the procedural history of the case and stated that after a thorough review of all the pleadings filed in the trial court, the court proceedings, and all transcripts contained in the record, including the September 14, 2016, contradictory hearing on the motion for new trial, no nonfrivolous issues could be advanced for appellate review. Further, appellate counsel verified that copies of the second motion to withdraw and Anders brief were properly mailed to Carter, in accordance with Anders , Jyles , Mouton , and Benjamin .

On September 5, 2017, the state filed a brief agreeing there were no nonfrivolous issues to raise on appeal. The state chose not to file a supplemental brief after defense counsel filed the second Anders brief.

On September 11, 2017, Carter filed a pro se brief asserting three assignments of error.

DISCUSSION

After a thorough review of the record, we agree with appellate counsel that there are no nonfrivolous issues to be raised on appeal. We examined all the pleadings filed in the district court, the court proceedings, the bill of indictment, and all transcripts contained in the record. Carter was properly charged by bill of indictment. He was present in court and represented by counsel at all pertinent stages of the proceedings.

Carter demonstrated that he acted with specific intent to kill when he fired a gun multiple times into a crowd of unarmed people. State v. Fields , 42,761 (La. App. 2 Cir. 01/9/08), 973 So.2d 973, 977, writ denied , 08-0469 (La. 9/26/08), 992 So.2d 983 ("Specific intent to kill can be implied by the intentional use of a deadly weapon such as a knife or a gun."). Eyewitnesses testified that they saw Carter shoot James multiple times outside James' home. Chaney testified Carter pointed the gun toward him and shot him in the torso. Williams testified she was shot in the buttocks while holding the front door of the house shut. The evidence established Carter used intentional force or violence upon Williams with a dangerous weapon and shot James and Chaney with the specific intent to kill. Any rational trier of fact could have found the essential elements of all three crimes beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Furthermore, we find no constitutional issues with Carter's sentences. Carter received a mandatory life sentence for his second degree murder conviction and midrange sentences for his attempted second degree murder and aggravated battery convictions. His sentences neither shock the sense of justice nor do they constitute purposeless and needless inflictions of pain and suffering. State v. Weaver , 01-0467 (La. 01/15/02), 805 So.2d 166.

In his pro se brief, Carter argues the trial court abused its discretion in overruling trial counsel's objections to prospective jurors for cause. Specifically, Carter complains that prospective juror Joshua Foy ("Foy") was confused about the concept of reasonable doubt, and prospective juror Stan Wyant ("Wyant") expressed his belief that a law enforcement officer's testimony would automatically carry more credibility. Ultimately, Foy was empaneled on the jury and Wyant was not.

Under La. C. Cr. P. art. 797, the state or the defendant may challenge a juror for cause on the grounds that the juror is not impartial or that the juror will not accept the law as given to him by the court. If the juror declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence, then there would not be a sufficient ground to challenge a juror. Id.

The trial court is vested with broad discretion in ruling on challenges for cause; his ruling will be reversed only when a review of the entire voir dire reveals an abuse of discretion. State v. White , 36,935 (La. App. 2 Cir. 06/06/03), 850 So.2d 751, writ denied , 03-2616 (La. 05/14/04), 872 So.2d 510 ; State v. Ellis , 28,282 (La. App. 2 Cir. 06/26/96), 677 So.2d 617, 623-24, writ denied , 96-1991 (La. 02/21/97), 688 So.2d 521. A challenge for cause is not warranted where a prospective juror's statement appears prejudicial to the defense, but on further inquiry the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence. Id.

After reviewing the voir dire , we find the trial court did not err in denying defense counsel's challenges for cause. While Foy admitted to being confused about the concept of reasonable doubt during examination by defense counsel, he stated his confusion stemmed from defense counsel's equivocal line of questioning regarding the concept. Upon further inquiry, Foy stated he understood the state had to prove with legal certainty that Carter committed the crimes, and affirmed he would find Carter not guilty if the state failed to prove its case beyond a reasonable doubt. Similarly, Wyant confirmed he would not consider any particular witness more credible than another simply because of their job or position if instructed by the trial court. Since both jurors demonstrated the ability and willingness to decide the case impartially according to the law and evidence, we cannot find the trial court abused its discretion in denying defense counsel's challenges for cause.

Moreover, Carter complains the trial court's recitation of the jury instructions should have been included in the record. Carter's complaint regarding the jury instructions is based on his contention that the jury did not understand the concept of reasonable doubt. He argues the jury's request for a second reading of the instructions regarding aggravated battery constituted evidence that the jury did not understand the concept of reasonable doubt, or alternatively, had reasonable doubt as to whether the elements of aggravated battery were met. Carter provides no support for his argument that the jury misunderstood the concept of reasonable doubt. The jury clearly understood the concept of reasonable doubt regarding the attempted second degree murder of Williams because the jury returned the responsive verdict of aggravated battery.

Next, Carter complains appellate counsel was ineffective because counsel filed an Anders brief, along with a motion to withdraw, when the appellate record was incomplete. The appellate record was lodged on July 20, 2017, and did not contain the transcript of the September 14, 2016, contradictory hearing on the motions for new trial. The transcript was not supplemented into the record until August 24, 2017. Therefore, the record was incomplete at the time counsel filed the original Anders brief on August 14, 2017. Notwithstanding, after the transcript was supplemented into the appellate record, counsel was ordered to thoroughly review the record again and provide a new brief. After reviewing the supplemented appellate record, counsel filed a second Anders brief on October 19, 2017. Thus, Carter provides no evidence his appellate counsel was ineffective.

Additionally, Carter requests this court review the record for errors patent, which is automatic in all criminal appeals. Our error patent review revealed three errors in sentencing. First, the trial court did not state that Carter's sentence for second degree murder was at hard labor. However, the penalty for second degree murder is life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Accordingly, we amend the sentence to life imprisonment, at hard labor, without benefit of probation, parole, or suspension of sentence.

Secondly, the trial court erred in imposing only the first 10 years of Carter's 20-year sentence for attempted second degree murder without benefits. As noted above, the penalty for second degree murder is life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:27(D)(1)(a) provides that "[i]f the offense so attempted is punishable by death or life imprisonment, the person shall be imprisoned at hard labor for a term not less than 10 years, nor more than 50 years, without benefit of probation, parole, or suspension of sentence." By operation of law, the trial court was required to impose Carter's entire 20-year sentence without benefits. Consequently, we amend the sentence to 20 years at hard labor without benefit of probation, parole, or suspension of sentence.

Thirdly, the trial court erred in imposing the first year of Carter's five-year sentence for aggravated battery without benefits. The penalty for aggravated battery is provided as follows in La. R.S. 14:34(B) :

Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated battery was committed because of that status.

No evidence was presented to suggest Carter shot Williams based on her status as a current or former member of the armed services. Since the trial court had no discretion to impose any part of Carter's five-year sentence without benefits, we amend the sentence to five years at hard labor.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and Carter's convictions are affirmed. Carter's sentence for second degree murder is amended to reflect it be served at hard labor. His sentence for attempted second degree murder is amended to 20 years at hard labor without benefit of probation, parole, or suspension of sentence; his sentence for aggravated battery is amended to five years at hard labor. As amended, Carter's sentences are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED.

      La. R.S. 14:30.1(A)(1) provides:
      A. Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm[.]
      To sustain a conviction for attempted second degree murder, the state must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. La. R.S. 14:27 and 14:30.1 ; State v. Bishop , 2001-2548 (La. 01/14/03), 835 So.2d 434, 437.
      Pursuant to La. R.S. 14:33 and 14:34, aggravated battery is the intentional use of force or violence upon the person of another by use of a dangerous weapon.


author: CHEHARDY, C.J.

text:
    Lucien H. DAUTERIVE and Laura A. Dauterive v. TILE REDI, LLC and Tile Redi Manager, Inc.
    NO. 17-CA-606
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, LUCIEN H. DAUTERIVE AND LAURA A. DAUTERIVE, Stephen J. Caire, Gretna.
    COUNSEL FOR DEFENDANT/APPELLEE, TILE REDI, LLC, TILE REDI MANAGER, INC., AND MARYLAND CASUALTY COMPANY, Jason P. Wixom, New Orleans, Thomas H. Barnett, Aaron J. Weidenhaft, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

Plaintiffs, Lucien and Laura Dauterive, appeal the district court's July 24, 2017 judgment sustaining the peremptory exception of prescription and dismissing with prejudice their redhibition claims against defendants, Tile Redi, LLC, Tile Redi Manager, Inc., and Maryland Casualty Company. For the reasons that follow, we find plaintiffs are entitled to relief and reverse this judgment of the district court.

FACTUAL AND PROCEDURAL HISTORY

In the process of rebuilding their home following Hurricane Katrina, plaintiffs purchased a custom shower pan for their shower enclosure from Tile Redi on March 3, 2007 and installed it themselves according to the manufacturer's drawings and specifications provided by Tile Redi. Four years later, on April 29, 2011, plaintiffs discovered that the shower pan had been leaking through pinholes in the side of the pan. The leak caused water damage to nearby wood, attracting termites and compounding the damage. Plaintiffs sent photographs of the damage to Tile Redi, complaining that a manufacturing defect of the shower pan was the cause of the damage. Thereafter, Tile Redi allegedly accepted the shower pan for repairs, but did not resolve the complaint before plaintiffs filed suit on April 26, 2012, in which they raised an action in redhibition, alleging that the pinholes in the shower pan constituted a redhibitory defect. They sought rescission of the sale, restitution of the purchase price, and damages in excess of $50,000 for repairs of the property, relocation expenses, and emotional distress. They also sought costs and attorney's fees.

Tile Redi, a company domiciled in Florida, was served and excepted to the lawsuit on the grounds of lack of personal jurisdiction. After this was resolved in plaintiffs' favor, Tile Redi filed its answer on November 14, 2012. Discovery ensued and trial was set for July of 2017. Prior thereto, Tile Redi pled the peremptory exception of prescription on July 10, 2017, arguing that because Tile Redi was not the manufacturer of the shower pan, plaintiffs' action was prescribed pursuant to La. C.C. art. 2534(A)(1). In response, plaintiffs maintained that La. C.C. art. 2534(A)(1) did not control and that their action was not prescribed on the face of the petition because they had alleged that Tile Redi was both the seller and manufacturer of the shower pan, and was therefore deemed to know of redhibitory defects pursuant to La. C.C. art. 2545. As a result, La. C.C. art. 2534(B) controlled and their claim was not prescribed.

At the hearing on the exception on July 12, 2017, no evidence was introduced by either party and the district court sustained the exception of prescription. In its written judgment that followed on July 24, 2017, the court dismissed plaintiffs' claims against Tile Redi with prejudice. Plaintiffs moved for a new trial, which was denied, and thereafter devolutively appealed the district court's judgment of July 24, 2017.

DISCUSSION

On appeal, plaintiffs assign as error the district court's judgment sustaining Tile Redi's peremptory exception of prescription.

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Specialized Loan Servicing, L.L.C. v. January , 12-2668 (La. 6/28/13), 119 So.3d 582, 584. If, on the other hand, evidence is not introduced at the hearing on the exception, and the issue before the court is the interpretation of the prescriptive statute, the case presents a question of law that is subject to the de novo standard of review. See id. ;

Halliburton Energy Servs. v. Bossier Par. Bd. of Review , 50,734 (La. App. 2 Cir. 8/10/16), 200 So.3d 385, 386. In the latter scenario, without introduction of evidence, the exception of prescription must be decided on the facts as alleged in the petition with all allegations therein accepted as true. See Tenorio v. Exxon Mobil Corp. , 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 273, writ denied , 15-1145 (La. 9/18/15), 178 So.3d 149. Ordinarily, the exceptor bears the burden of proof on the peremptory exception; however, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id. at 273-74.

Here, plaintiffs' petition asserted a cause of action in redhibition, wherein they alleged that the shower pan had redhibitory defects and that Tile Redi, as both the seller and manufacturer of the pan, was deemed to have knowledge of those defects pursuant to La. C.C. art. 2545.

The prescriptive period for actions in redhibition is governed by La. C.C. art. 2534. It provides:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

Tile Redi asserted, and the district court agreed, that plaintiffs' claim was prescribed pursuant to La. C.C. art. 2534(A)(1). By contrast, plaintiffs argued that because Tile Redi was both the seller and manufacturer of the shower pan, by operation of La. C.C. art. 2545, Tile Redi is deemed to have knowledge of redhibitory defects, and La. C.C. art. 2534(B) governs their claim. Under this provision, they contended their claim was not prescribed on the face of their petition.

Tile Redi, as the exceptor, bore the burden of proof on the exception, yet neither party presented evidence at the hearing. Thus, accepting as true the facts as alleged in the petition, Tile Redi was both the seller and manufacturer of the shower pan, and plaintiffs' action is governed by La. C.C. art. 2534(B). Under this provision, plaintiffs' action is not prescribed because it was filed within one year of the discovery of the alleged defect. Upon our de novo review, we conclude the district court erred in concluding otherwise.

DECREE

For the foregoing reasons, we reverse the district court's July 24, 2017 judgment sustaining the peremptory exception of prescription and dismissing with prejudice Lucian and Laura Dauterive's claims against Tile Redi, LLC, Tile Redi Manager, Inc., and Maryland Casualty Company.

REVERSED

      Tile Redi, LLC and Tile Redi Manager, Inc. are collectively referred to herein as "Tile Redi."

      La. C.C. art. 2545 : "A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing."