author: ROTHENBERG, C.J.

text:
    Nadezda A. SOLONINA, Petitioner, v. ARTGLASS INTERNATIONAL, LLC, etc., Respondent.
    No. 3D18-1893
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Weinstein Law, P.A., and Morgan L. Weinstein (Hollywood), for petitioner.
    The Strauss Law Firm, P.A., and David A. Strauss (Fort Lauderdale), for respondent.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   ROTHENBERG, C.J.

Nadezda A. Solonina ("Nadezda"), the plaintiff below, petitions this Court for a writ of certiorari to quash the trial court's order which she contends: (1) denies her the ability to take the depositions of three key witnesses; and (2) denies Nadezda, herself, a critical witness, to be present at her own trial. Because we conclude that the trial court's order is a departure from the essential requirements of law which will cause material injury for which there is no adequate remedy on plenary appeal, we grant the petition and quash the order on review.

Jurisdiction

A. The denial of a party's right to depose a material witness

Generally, orders denying discovery are not reviewable by certiorari. Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). The exception to the general rule is where the discovery order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. Adkins v. Sotolongo, 227 So.3d 717, 719 (Fla. 3d DCA 2017) (citing Banco Latino (S.A.C.A.) v. Kimberly, 979 So.2d 1169 (Fla. 3d DCA 2008) ).

A trial court's denial of a party's right to depose a material witness has been found to constitute irreparable harm subject to certiorari review. See Adkins, 227 So.3d at 719-20 ; Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So.3d 1232, 1234-35 (Fla. 2d DCA 2009) (footnote omitted) ("[W]hen the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings."); Ruiz, 599 So.2d at 199 ("[I]n circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.") (internal quotation marks omitted); see also Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004) ; Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000) ; Criswell v. Best W. Int'l, Inc., 636 So.2d 562, 563 (Fla. 3d DCA 1994).

B. The denial of a party's motion for a continuance

"Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party's behalf ... and the denial of this right is fundamental error." Julia v. Julia, 146 So.3d 516, 520 (Fla. 4th DCA 2014) (quoting Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998) ). While the trial court possesses broad discretion in granting or denying a continuance, "there are instances in which a trial court's denial of a motion for continuance may be an abuse of discretion." Thompson v. Gen. Motors Corp., 439 So.2d 1012, 1013 (Fla. 2d DCA 1983).

In Julia, the Fourth District Court of Appeal noted that "[w]hile courts have broad authority to control their dockets, trial judges must use this authority to manage their courtrooms so that the people's business may be conducted fairly, efficiently, and expeditiously," Julia, 146 So.3d at 522 (internal quotation marks omitted), and further recognized the difficulty in balancing a party's right to have his day in court with the need to manage one's docket and to consider the interests of the opposing party. Id. In balancing these competing interests, the court concluded that where the wife was not afforded the opportunity to present her case fully, her due process rights were violated. Id. at 518.

Likewise, the Second District Court of Appeal in Thompson granted Thompson's petition for writ of certiorari after the trial court denied his motion for a continuance due to his counsel's illness. Thompson, 439 So.2d at 1013-14. The Second District found that the trial court had departed from the essential requirements of law and that it could not say that Thompson would have had an adequate remedy on appeal because there would be no way to determine how counsel's illness affected his performance at trial. Id.

Application of the Law to the Instant Case

This case involves a contract dispute between the parties. Nadezda claims to be the only witness with personal knowledge of the terms of the contract and thus she claims she is a necessary witness at trial. Nadezda also submitted an affidavit outlining her counsel's unsuccessful attempts to depose three material witnesses. Specifically, she explained that her counsel attempted on several occasions to coordinate the depositions of these witnesses with defense counsel but on each occasion her counsel was advised that the witnesses were unavailable. Then, after counsel was finally able to coordinate the depositions of these three witness for March 21 and March 23, 2018, the depositions were cancelled due to the withdrawal of the defendant's counsel. Further inquiries regarding the availability of the witnesses went unanswered by both the witnesses and the defendant's new counsel.

The trial was initially set for September 25, 2018. Nadezda's trial counsel, however, informed the trial court that he had a prepaid vacation in which he would be out of the country from September 11, 2018 until September 25, 2018 and that Nadezda, her husband, and her three children would be on a prepaid trip around the world from August 16, 2018 until May 31, 2019. On August 17, 2018 the trial court rescheduled the trial to September 27, 2018. Thus, although it appears that the trial court attempted to accommodate trial counsel's vacation time by resetting the trial for two days after his return, the trial court reset the trial during a period of time in which the trial court knew that Nadezda would not be available.

Based on these facts, we conclude that the trial court's order departs from the essential requirements of law resulting in irreparable harm. First, Nadezda's counsel has not been able to depose three material witnesses based on the witnesses' and opposing counsel's unavailability. Without being able to conduct meaningful discovery, Nadezda's counsel will not be able to properly prepare his case and "there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings." Giacalone, 8 So.3d at 1234-35 ; see also Ruiz, 599 So.2d at 198 (finding that the denial of the right to take the deposition of an alleged material witness generally cannot be remedied on appeal because there is no practical way to determine after judgment how that denial may have affected the verdict).

Although the trial court has not prohibited Nadezda from deposing these three alleged material witnesses, because her trial counsel has no ability to depose them prior to trial because he is out of the country, the trial court has in effect precluded them. See Adkins, 227 So.3d at 720 (finding that because Ms. Adkins was declared indigent and she was being required to advance the guardian's and the guardian's attorney's fees prior to the taking of the guardian's deposition, the trial court had effectively precluded the taking of the deposition).

Second, and more importantly, when the trial court continued the trial, it reset the trial date to September 27, 2018 even though the trial court was fully aware that Nadezda, who is the plaintiff and a material witness, would be out of the country and unable to attend her own trial. The re-setting of the trial during a period of time in which the trial court knew Nadezda would not be available, effectively denies Nadezda her day in court and is thus a denial of her right to due process. As previously stated: "Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party's behalf ... and the denial of this right is fundamental error." Julia, 146 So.3d at 520 (quoting Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998) ). "The opportunity to be heard must be 'full and fair, not merely colorable or illusive.' " Julia, 146 So.3d at 520 (quoting Pelle v. Diners Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974) ); see also Pelle, 287 So.2d at 738 (concluding that Pelle was denied the protection of his constitutionally guaranteed right to due process of law where the trial court failed to provide Pelle with the opportunity to present his case-in-chief).

We additionally note that the request by Nadezda for a continuance was not open-ended. Her request was specific and finite. Continuing the case until Nadezda returns will provide her trial counsel with enough time to compel attendance of the witnesses for their depositions and the opportunity to call Nadezda as a witness. Thus, we agree with our sister court in Thompson, that "[w]hile we are loath to interfere with trial scheduling, we hold that the trial court departed from the essential requirements of law in refusing to grant the [requested] continuance." Id. at 1013.

Conclusion

The trial court departed from the essential requirements of law by granting Nadezda's motion for a continuance of the trial but then re-scheduling the trial for a date the trial court knew she would not be available. We also conclude that the trial court's trial order, which requires Nadezda's counsel to proceed to trial without having deposed three material witnesses and without the plaintiff, Nadezda, who is also a material witness, will cause material injury throughout the remainder of the proceedings that cannot be remedied on direct appeal. We, therefore, grant the petition, quash the order on review, and remand for further proceedings consistent with this opinion.

Petition granted.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael Renard JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4109
    District Court of Appeal of Florida, First District.
    October 16, 2018 Rehearing Denied November 15, 2018
    Gonzalo Andux of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Petitioner asserts that the State violated section 782.04, Fla. Stat. (2016) (pertaining to the State's responsibilities after arraignment if the State intends to seek the death penalty). We find the statute is not applicable in this case and deny the petition on the merits.

Petitioner was indicted by a grand jury for first-degree premeditated murder and sexual battery on March 9, 2007. The State noticed its intent to seek the death penalty on March 14, 2007. In response to the trial court's order of January 25, 2010, granting Petitioner's Motion for Statement of Aggravating Circumstances, the State filed its Notice of Intent to Rely on Aggravating Circumstances on April 28, 2010.

Petitioner was convicted as charged on February 22, 2010, and sentenced to death on July 16, 2010. His appeal to the Florida Supreme Court resulted in a reversal and a granting of a new trial. Jackson v. State , 107 So.3d 328 (Fla. 2012). However, the reversal of Jackson's conviction and ordering of a new trial did not require a new arraignment. And the 2016 amendment to section 782.04(1), Fla. Stat., requiring that the State provide notice of aggravating factors within 45 days of arraignment (in addition to its notice of intent to seek the death penalty) does not apply retroactively to an arraignment that occurred in 2007. Petitioner has been on notice of the State's intent to seek the death penalty since 2007, and received notice of the aggravating circumstances in 2010.

DENIED.

Wolf, Rowe, and Bilbrey, JJ., concur.


text:
    James L. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3526
    District Court of Appeal of Florida, First District.
    October 15, 2018
    James L. Murphy, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Court has determined that Appellant's notice of appeal failed to invoke its appellate jurisdiction in a timely manner. To be timely, a notice of appeal must be filed with the appropriate court within 30 days of rendition of the order on appeal. Fla. R. App. P. 9.110(b). Merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient. Raysor v. Raysor , 706 So.2d 400, 401 (Fla. 1st DCA 1998). Further, the filing of a notice of appeal is jurisdictional. Florida courts are required to dismiss an appeal if the notice is not filed within the applicable time limit. See Miami-Dade Cty. v. Peart , 843 So.2d 363, 364 (Fla. 3d DCA 2003). Accordingly, the appeal is dismissed.

Roberts, Rowe, and Ray, JJ., concur.


author: PER CURIAM:

text:
    STATE EX REL. Jose M. LICONA v. STATE of Louisiana
    No. 2017-KH-1263
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ in part.


author: PER CURIAM

text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College v. SOUTHERN ELECTRONICS, INC. (f/k/a Southern Radio Supply Co., Inc.) and the City of New Orleans
    NO. 2018-C-1129
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
   PER CURIAM

Writ granted. Based on the facts in this case, there is no legal precedent or authority in support of granting a credit to the expropriating authority against a final judgment awarding attorney fees to the landowner in an expropriation case. The judgment of the court of appeal is reversed, and the trial court judgment is reinstated.

REVERSED.

Hughes, J., would grant and docket.


text:
    IN RE: Ken DOHRE
    NO. 2018-B-0941
    Supreme Court of Louisiana.
    October 29, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel seeks review of an order of the disciplinary board that the formal charges against respondent, Ken Dohre, be dismissed. Having reviewed the record and the briefs of the parties and amici curiae, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.

FORMAL CHARGES DISMISSED.

Hughes, J., dissents.


text:
    STATE of Louisiana v. Donald LEWIS
    No. 2018-KK-0924
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Writ granted. Based on an anonymous tip that defendant was selling heroin, a detective approached defendant, immediately patted him down and advised him of his rights, and then asked him a series of questions, which ultimately lead to the seizure of the evidence defendant sought to suppress. The United States Supreme Court held in Florida v. J.L. , 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) that an anonymous tip lacking indicia of reliability does not justify a stop and frisk. In so holding, the United States Supreme Court found that the reasonable suspicion necessary to justify a stop and frisk pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)"requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L. , 529 U.S. at 272, 120 S.Ct. at 1379 ; see also State v. Robertson , 97-2960, pp. 5-6 (La. 10/20/98), 721 So.2d 1268, 1271 ("In the absence of any suspicious conduct or corroboration of information from which police could conclude that the anonymous informant's allegation of criminal activity was reliable, we must conclude that there was no reasonable suspicion to detain defendant.").

Here, although the detective sufficiently corroborated defendant's identity as the subject of the anonymous tip, there was no indicia at the time the detective patted defendant down that the anonymous tip was reliable in its assertion that defendant was selling heroin. Although defendant ultimately consented to the search that revealed the contraband, that consent was not sufficiently attenuated from the illegal stop and frisk to constitute an independent and intervening act of free will. Therefore, the district court erred in denying defendant's motion to suppress. See State v. Owen , 453 So.2d 1202, 1206 (La. 1984) ("[I]f the consent was obtained after an illegal detention or entry, the consent was valid only if it was the product of a free will and not the result of an exploitation of the previous illegality."); State v. Zielman , 384 So.2d 359, 363 (La. 1980) ("[C]onsent to search, even if voluntary, is valid when made after an illegal detention only when made under circumstances which show no exploitation of the illegality.") (citations omitted). Accordingly, we reverse the district court's ruling that denied defendant's motion to suppress, and remand for further proceedings consistent with the views expressed here.

REMANDED

GUIDRY, J., would deny.


text:
    STATE of Louisiana v. Coby Quinton CEASER aka Coby Quinton Ceasar
    No. 2018-KH-1162
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Writ granted in part; otherwise denied. The case is remanded to the district court for purposes of appointing relator counsel and conducting an evidentiary hearing to determine whether relator received ineffective assistance of appellate counsel for counsel's failure to argue that relator was denied his fundamental right to present a defense and therefore deprived of a fair trial as a result of the trial court's refusal to allow defense counsel to introduce evidence of the victim's dangerous character. In all other respects, the writ is denied.


text:
    STATE EX REL. Keith SCOTT v. STATE of Louisiana
    No. 2017-KH-1716
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    State ex rel. Jock COLLINS v. STATE of Louisiana
    No. 2017-KH-1645
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Lawrence MARTIN v. STATE of Louisiana
    No. 2017-KH-1636
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    State ex rel. Jeremy DeWayne FOSTER v. STATE of Louisiana
    No. 2017-KH-1538
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator shows no lower court error.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Raymond MELANCON
    No. 2017-KP-1074
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    Alvin PETE v. State of Louisiana, DEPARTMENT OF CORRECTIONS, et al.
    No. 2018-C-1252
    Supreme Court of Louisiana.
    November 20, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. MARTIN
    Writ denied.
    CLARK, J., would grant and assigns reasons:
    I agree fully with the reasons stated by Justice Crichton. Although penal authorities have a duty to use reasonable care in preventing harm after they have reasonable cause to anticipate it, a penal institution is not an insurer of an inmate against attacks by other inmates. State ex rel. Jackson v. Phelps , 95-2294 (La. 4/8/96), 672 So.2d 665, 667. Therefore, I would grant and docket the matter in order to perform a duty-risk analysis.
   Although I do not necessarily find error in the court of appeal's amendment of plaintiff's increased judgment for the serious injury of loss of an eye, I question the initial threshold finding of liability in this case. In my view, in light of the number of inmates in our correctional system and the possibility of similar circumstances arising again, I would grant and docket this matter to conduct a full tort analysis on the issue of liability. See State ex rel. Jackson v. Phelps , 672 So.2d 665, 667 (La. 1996) ; and Parker v. State , 282 So.2d 483 (La. 1973).


text:
    STATE EX REL. Wendell Coby MATTHEWS v. STATE of Louisiana
    No. 2017-KH-1427
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189 ; see also State ex rel. Hall v. State , 99-0326 (La. 9/24/99), 871 So.2d 1071.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Travis ISAAC v. STATE of Louisiana
    No. 2017-KH-1448
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF POINTE COUPEE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Paul E. CAMPBELL v. STATE of Louisiana
    No. 2017-KH-1494
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Anthony Paul JOHNSON v. STATE of Louisiana
    No. 2017-KH-1527
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. KHOI Q. HOANG
    No. 2017-K-0100
    Supreme Court of Louisiana.
    November 14, 2018
    On Writ of Certiorari and/or Review, Criminal District Court, Parish of Orleans, No. 517-663, Division H; Court of Appeal, Fourth Circuit, No. 2016-KA-0479.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE EX REL. Kenan ALLEN v. STATE of Louisiana
    NO. 2017-KH-0350
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    SUCCESSION OF Mack HOUSTON, Jr., Carlyle Houston, and McKinley Houston
    NO. 2018-CC-1426
    Supreme Court of Louisiana.
    November 20, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Donald ROBINSON v. STATE of Louisiana
    NO. 2017-KH-0800
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Jeffrey T. KRUEBBE
    NO. 2018-OK-0804
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. ABBOTT LABORATORIES, INC., et al.
    NO. 2018-CC-1425
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Monique PYLE v. Zackary GRATE, Jeffery Grate, Hertz Corp., State Farm Mutual Automobile Ins. Co., and United Services Automobile Association
    NO. 2018-CC-1465
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    Festus OGBEBOR, Individually and on Behalf of His Deceased Wife, Mary Ogbebor v. LAFAYETTE GENERAL MEDICAL CENTER, et al.
    NO. 2018-CC-1473
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Troy TAYLOR
    NO. 2018-KK-1045
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Preston G. DEMOUCHETTE, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2017-CI-616
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    STATE EX REL. Dennis JOHNSON v. STATE of Louisiana
    NO. 2017-KH-0888
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    Clifton FRANKLIN v. FOUNTAIN GROUP ADJUSTERS, L.L.C.
    NO. 2018-CC-1490
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Leotis WEBSTER v. STATE of Louisiana
    NO. 2017-KH-1437
    Supreme Court of Louisiana.
    November 20, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Webster v. State, 15-0021 (La. 10/30/15), 178 So.3d 131.


text:
    STATE of Louisiana v. Bradley Lee JENKINS
    NO. 2018-KH-1193
    Supreme Court of Louisiana.
    November 20, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Jenkins v. State, 17-1276 (La. 10/8/18) --- So.3d ----.


author: WEIMER, J., recused.

text:
    MCMANUS CONSTRUCTION, LLC v. WHITE-SPUNNER CONSTRUCTION, INC., et al.
    NO. 2018-CC-1451
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   WEIMER, J., recused.


author: HUGHES, J., would grant.

text:
    Brenna Ash MILLER, et al. v. ACADIAN AMBULANCE SERVICE, INC., et al.
    NO. 2018-C-1452
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Daniel L. MOORE and Marie Moore v. CITY OF WESTLAKE
    Philmer Johnson, Jr. and Paula Johnson v. City of Westlake
    NO. 2018-CC-1478
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Beth DUFOUR and Drew Dufour v. The SCHUMACHER GROUP OF LOUISIANA, INC., et al.
    NO. 2018-C-1456
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Austin A. BERNARD, III v. STATE of Louisiana
    NO. 2017-KH-1447
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Robert Dale WILSON v. STATE of Louisiana
    NO. 2017-KH-1798
    Supreme Court of Louisiana.
    November 20, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Wilson v. State, 17-1579 (La. 11/20/18), --- So.3d ----.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Tony Ray EVANS
    NO. 2018-KO-0281
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   CRICHTON, J., recused.


text:
    S.L.B. v. C.E.B.
    State of Louisiana Through the Department of Children and Family Service, Child Support Enforcement in the Interest of D.B. and J.B. Minor Child(ren) of S.B. v. C.E.B.
    S.L.B. v. C.E.B.
    NO. 2018-CJ-1442
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Zoe R. WHITE
    NO. 2018-KK-1479
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Jaime NEVAREZ
    NO. 2018-KK-1484
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Ms. Tanica AUSTIN Individually and on Behalf of Her Minor Daughter Stephanie Williams (M) v. WALGREEN LOUISIANA CO., INC. and XYZ Insurance Company, Walgreens Pharmacist, Technicians and Employees
    NO. 2018-CC-1482
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Cornelius Tyrone KIRSH
    NO. 2017-KO-2169
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    SUCCESSION OF Elizabeth Jeane Toms PERRITT
    NO. 2018-C-1525
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Patricia LENNIE, Brett Lennie and Marcella Fueslier v. EXXON MOBIL CORPORATION, et al.
    NO. 2018-C-1435
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Shawnathon Lamon FABRE
    NO. 2018-KO-0210
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


author: GENOVESE, J., would grant in part.

text:
    STATE of Louisiana v. Calvin KING
    NO. 2018-KK-1429
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   GENOVESE, J., would grant in part.


text:
    STATE EX REL. Felix A. PRICE v. STATE of Louisiana
    NO. 2015-KH-2290
    Supreme Court of Louisiana.
    November 20, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE EX REL. Louis HUDSON v. STATE of Louisiana
    NO. 2016-KH-1437
    Supreme Court of Louisiana.
    November 20, 2018
    Not considered. See La.S.Ct.R. DC, § 6.


text:
    Billy SWIFT, et al. v. HYDRIL COMPANY and Hydril LLC
    NO. 2018-CC-1460
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Geraldine OUBRE, et al. v. LOUISIANA CITIZENS FAIR PLAN
    NO. 2018-CC-1496
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Charles STEWART v. STATE of Louisiana
    NO. 2018-KH-039S
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    Riley HICKMAN v. EXXON MOBIL CORPORATION, Exxon Mobil Oil Corporation, Humble Oil & Refining Company, Humble Oil & Refining Corporation, Chevron USA, Inc., BP Corporation North America, Inc., The Texas Company, Devon Energy Production Company, LP., Dynamic Exploration, Inc., ConocoPhillips Company, Shell Oil Company, Marathon Oil Company, Sunset Petroleum, Stone Oil Company of Baton Rouge and Al Cunningham
    NO. 2018-C-1463
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Terran MENARD v. PAR CONSTRUCTION, LLC, et al.
    NO. 2018-CC-1485
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Henderson Dwight WESLEY
    NO. 2018-KK-1837
    Supreme Court of Louisiana.
    November 20, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Joshua ROBERSON v. STATE of Louisiana
    NO. 2017-KH-1573
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Derrick Walker STAFFORD a/k/a Derrick Stafford
    NO. 2018-K-0549
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Linda CANGELOSI v. TREASURE CHEST CASINO, L.L.C.
    NO. 2018-C-1446
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Johnny BEASON
    NO. 2017-KO-2170
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Karl HOWARD
    NO. 2018-KO-0165
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. William Felix VAIL
    NO. 2018-K-0202
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Victor FISHER and Stephanie Fisher v. The AESTHETIC MEDICINE AND ANTI-AGING CLINICS OF LOUISIANA, LLC and Its Staff, Todd P. Howell, MD and Stewart Travis Cayton, MD
    NO. 2018-CC-1428
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Susan Russo MARCHAND, et al. v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1480
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDINGS FOR the CLAIM OF Misty MONES
    NO. 2018-CC-1494
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Charles H. LEE, Jr. v. STATE of Louisiana
    2016-KH-1457
    Supreme Court of Louisiana.
    November 20, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Robert NIX
    NO. 2018-KK-1487
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
    CLARK, J. would grant for reasons assigned by Judge Lobrano.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-026
    NO. 2018-OB-1495
    Supreme Court of Louisiana.
    December 3, 2018
    Leave to appeal denied.


author: WHIPPLE, C.J.

text:
    Johnathan Brant RATHE v. Robert J. RATHE, Jr.
    NUMBER 2017 CA 1326
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: AUGUST 21, 2018
    Jean-Paul Layrisson, New Orleans, LA, Counsel for Plaintiff/Appellee, Jonathan Brant Rathe
    Jefferson J. Moss, Jr., Lafayette, LA, Counsel for Defendant/Appellant, Robert J. Rathe, Jr.
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   WHIPPLE, C.J.

In this matter involving rental and purchase agreements between the parties, defendant, Robert J. Rathe, Jr. ("Robert"), appeals from the trial court's January 26, 2017 judgment, in favor of plaintiff, Jonathan Brant Rathe ("Brant"), and against Robert, granting Brant declaratory judgment relief, finding that Robert was in breach of contract, dismissing Robert's reconventional demand, and awarding Brant all damages claimed and attorney's fees and costs. Robert additionally seeks review of two prior judgments rendered in this matter, granting various exceptions to his third-party demands. For the following reasons, we vacate in part and affirm in part the January 26, 2017 judgment and remand with instructions. Additionally, we decline to review the two prior judgments granting various exceptions to Robert's third-party demands, given that these judgments lack decretal language.

FACTS AND PROCEDURAL HISTORY

On October 9, 2012, Brant and his father, Robert, entered into an "Agreement to Purchase/Rent House & Transfer Land" (referred to hereafter as "the 2012 Agreement to Purchase/Rent"), setting forth a purchase price and a monthly rental amount for Brant's home located at 713 E. 4th Avenue in Covington, Louisiana. The 2012 Agreement to Purchase/Rent did not contain a date by which the sale of the house to Robert was to be confected, but reserved unto Brant the right to renegotiate the monthly rent in the event that the house was "not settled" by December 31, 2013. A separate section of the agreement, entitled "Plantation Property," provided that "[c]oncurrent with this agreement," Robert agreed to "gift/transfer" five acres of land to Brant and Sarah Rathe, Brant's wife, "for the sole purpose of building a family home."

Subsequently, Brant and Robert executed an Addendum to the Agreement to Purchase/Rent, dated December 6, 2013, through which the monthly rental charge for Brant's home was renegotiated. In the December 6, 2013 Addendum, Brant again reserved the right to renegotiate the amount of monthly rent in this agreement if the house was "not settled" by December 31, 2014. A few weeks later, on January 13, 2014, Brant and Robert executed a second Addendum, again renegotiating the monthly rental charge. The 2012 Agreement to Purchase/Rent and two addenda were drafted by Brant.

Thereafter, Robert drafted an "Agreement to Purchase and Sell" (hereafter referred to as "the 2014 Purchase Agreement") with regard to Brant's home, which was executed on February 21, 2014. In the 2014 Purchase Agreement, the parties agreed that the act of sale was to take place on or before March 31, 2014, for a purchase price of $337,060.00, with a $3,000.00 deposit to be paid by the purchaser. The 2014 Purchase Agreement contained two lines for "purchaser" signatures and two lines for "seller" signatures. The signatures on the "purchaser" lines are "NuFarms, LLC," a single-member limited liability company of which Robert is the managing member, and Robert's signature. Brant signed both seller lines.

With regard to any breach by the purchaser, the 2014 Purchase Agreement provided that the "[s]eller shall have the right to demand specific performance; or at [s]eller's option, [s]eller shall have the right to reoffer the property for sale and may declare the deposit, ipso facto, forfeited" and that, "[i]n either event, [s]eller shall have the right to recover any costs and/or fees, including expenses and reasonable attorney's fees, incurred as a result of this agreement or breach thereof." Nonetheless, despite the language that the deposit may be declared forfeited upon the purchaser's breach, the 2014 Purchase Agreement further provided that in the event the sale did not close for any reason, the $3,000.00 deposit would "be credited to the seller and considered as rent under the terms of the existing rental agreement between the parties."

Neither Robert nor Nu Farms, LLC executed an act of sale of Brant's home by the deadline of March 31, 2014. Even after the date had passed, Brant attempted to facilitate the sale of his home by asking both his father, Robert, and his mother, Jennifer Rathe, if they would like to purchase the house. However, when a sale to either of his parents did not come to fruition, Brant started to market his home for sale and ultimately entered into a purchase agreement with a third party.

Upon learning that Brant had entered into a purchase agreement with a third party, Robert filed a "Notice of ... Agreement to Purchase/Rent House and Transfer Land" in the conveyance records of St. Tammany Parish on May 28, 2015, in which he represented that Brant's home was subject to his right to purchase pursuant to the 2012 Agreement to Purchase/Rent; that pursuant to his obligation under the 2012 Agreement to Purchase/Rent, he and his former wife Jennifer had donated five acres of property to Brant and his wife Sarah as additional consideration for the right to purchase; and that he intended to enforce his right to purchase Brant's home. Robert acknowledged that he filed this notice in the conveyance records to block the sale of Brant's home.

Brant then instituted this suit against Robert on June 18, 2015, contending that the 2014 Purchase Agreement had replaced the earlier informal 2012 Agreement to Purchase/Rent as to the sale of Brant's home and that Robert had breached the 2014 Purchase Agreement by failing to execute an act of sale by the March 31, 2014 deadline, thus entitling Brant to reoffer the property for sale. Brant further alleged that despite attempts to have Robert amicably remove the notice he had filed in the conveyance records, which was an impediment to the sale of Brant's home to a third party, Robert had refused, constituting a bad faith breach of contract. Moreover, Brant contended that he was entitled to back-due rent pursuant to the original 2012 agreement and addenda, which, despite the subsequent 2014 Purchase Agreement as to the sale of the home, remained in place as to the parties' rental arrangement. Accordingly, Brant sought, among other things, a declaratory judgment, declaring that Robert no longer had any right to purchase or interest Brant's home and that the objection to the sale of Brant's home to a third party that Robert filed in the conveyance records is invalid; damages for back-due unpaid rent and "any other damages or relief under law and equity"; attorney's fees; and costs.

Robert then filed an answer and reconventional demand against Brant, contending that he and his former wife, Jennifer, had paid consideration valued at more than $108,500.00 for their right to purchase Brant's home, including: the donation of a five-acre tract of land; the forgiveness of an $8,500.00 interest-free loan; and approximately $15,000.00 in repairs made to Brant's home. He further contended that Brant's attempt to sell the home to a third party constituted a bad faith attempt to repudiate or rescind the provisions of the 2012 Agreement to Purchase/Rent so as to deprive him and Jennifer of the right to purchase Brant's home. Thus, Robert sought, among other things, a declaratory judgment declaring that he has a right to purchase the home or, alternatively, a rescission of the donation of the five-acre tract of land and a revival of the $8,500.00 interest-free loan, damages, and attorney's fees.

Robert also filed a third-party demand against Brant's wife, Sarah, seeking rescission of the donation of the five-acre tract in the event it was determined that his right to purchase Brant's home was null or had been cancelled. Moreover, he filed a third-party demand against his former wife Jennifer, contending that he entered into the 2012 Agreement to Purchase/Rent during the existence of his marriage to Jennifer such that the obligations thereunder were community obligations and any rights pursuant to that contract also belonged to the former community property regime between them. Thus, he contended that she was a necessary party to the proceedings.

Sarah responded to Robert's third-party demand against her by filing peremptory exceptions raising the objections of no right of action, no cause of action, and prescription. By judgment dated May 25, 2016, the trial court granted Sarah's exceptions of no cause of action and no right of action, but denied the exception of prescription.

Jennifer likewise filed peremptory exceptions of no cause of action and no right of action, as well as a declinatory exception of lack of subject matter jurisdiction as to the third-party demand Robert filed against her. By judgment dated June 21, 2016, the trial court granted Jennifer's exceptions of no cause of action and lack of subject matter jurisdiction.

The matter then proceeded to trial on July 20, 2016. Following a bench trial, the trial court rendered judgment dated January 26, 2017, declaring as follows: that Robert has no right or interest to purchase Brant's home; that the five-acre donation was not consideration for the rental/purchase agreement; that Robert was in breach of contract and had forfeited his $3,000.00 deposit; and that Robert was in bad faith in filing the notice of agreement in the conveyance records attesting that he intended to exercise his right to purchase Brant's home, thus rendering him liable for costs of $2,961.70 and attorney's fees of $41,290.00. The judgment further ordered that Robert was "liable for all damages claimed by Brant ... in the above-captioned lawsuit, including $374.00 and $494.00 representing the home inspection and attorney fees"; that Robert was liable to Brant for rent in the amount of $28,500.00, together with legal interest and costs; and that "all declaratory relief as requested by Brant ... in his Petition is granted and that the Court also awards interests [sic] and costs." Finally, the judgment dismissed Robert's reconventional demand.

From this judgment, Robert appeals, listing twelve assignments of error and twenty-five issues for review. Ten of the listed assignments of error address alleged errors as to the claims between Brant and Robert, including the denial of certain exceptions filed by Robert as to Brant's claims against him and alleged errors in the January 26, 2017 judgment rendered after the bench trial. The remaining two alleged errors address the May 25, 2016 judgment granting Sarah's exceptions of no cause of action and no right of action and the June 21, 2016 judgment granting Jennifer's exceptions of no cause of action and lack of subject matter jurisdiction, respectively, both of which judgments Robert terms "interlocutory." Additionally, Robert has filed with this court a "Motion to Take Judicial Notice of Conveyance of Property Subject to Lawsuit," which we will address herein.

MOTION TO TAKE JUDICIAL NOTICE OF CONVEYANCE OF PROPERTY SUBJECT TO LAWSUIT

In this motion, Robert requests that this court take judicial notice of the fact that Brant sold his home that is the subject of this lawsuit to his mother (Robert's former wife), Jennifer, after the trial of this matter and the rendition of judgment, arguing that the subsequent sale of the property "will have an effect on the remedies available to [him] on appeal." Robert argues that because the original 2012 Agreement to Purchase/Rent was confected during the existence of his marriage to Jennifer, it was a community obligation, such that her later purchase of Brant's home "may be evidence" that the 2012 Agreement to Purchase/Rent was fulfilled by the purchaser. He further asserts that the purchase price is "relevant and material to the issues of this case" and that the trial court's denial of his reconventional demand that a declaratory judgment be issued declaring that he has a right to purchase Brant's home "would now be moot."

Brant opposes the motion. He argues that while this court may take judicial notice of any public record, the subsequent sale of his home has no relevance to this appeal and that considering the subsequent sale as evidence in determining the issues in this case herein would be inappropriate.

Louisiana Code of Civil Procedure 2164 provides that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings, unless otherwise designated. City of Hammond v. Parish of Tangipahoa, 2007-0574 (La. App. 1st Cir. 3/26/08), 985 So.2d 171, 176. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. As an appellate court, we have no jurisdiction to receive new evidence. City of Hammond, 985 So.2d at 176-177.

Although this court is generally precluded from admitting new evidence, we are mandated by Article 202(A) of the Louisiana Code of Evidence to take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court's territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court. See also LSA-R.S. 13:3712(B). In addition, a court must take judicial notice of, among other things, ordinances enacted by any political subdivision of the State of Louisiana, if a party requests it and provides the court with the information needed by it to comply with the request. LSA-C.E. art. 202(B)(1)(c). Moreover, judicial notice of such legal matters may be taken at any stage of the proceeding. LSA-C.E. art. 202(D). City of Hammond, 985 So.2d at 177.

Given that the sale at issue in this motion occurred after the district court signed its judgment, the act of sale of which Robert seeks to have this court take judicial notice clearly was not part of "the record on appeal" upon which this court shall render judgment. See LSA-C.C.P. art. 2164. Nor is it one of the items listed in LSA-C.E. art. 202 of which this court is required to take judicial notice. For these reasons, we deny Robert's Motion to Take Judicial Notice of Conveyance of Property Subject to Lawsuit. See City of Hammond, 985 So.2d at 177.

CLAIMS BETWEEN BRANT AND ROBERT AND THE RESULTING JANUARY 26, 2017 JUDGMENT

(Assignments of Error Nos. 1 - 9 & 12)

Through these assignments of error and the numerous related "issues for review," Robert challenges the denial of various exceptions he filed to Brant's petition and the rulings of the trial court in the January 26, 2017 judgment disposing of the claims between him and Brant following the bench trial. Based on our thorough review of the record, we find no merit to Robert's assignments of error.

As to the trial court's interpretation of the contracts at issue, the interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. LSA-C.C. art. 2046. When the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. LSA-C.C. art. 2045 ; Molina v. Oilfield Production Contractors, Inc., 2017-0455 (La. App. 1st Cir. 12/29/17) 241 So.3d 337, 340.

A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. LSA-C.C. art. 2053 ; Amend v. McCabe, 95-0316 (La. 12/1/95), 664 So.2d 1183, 1187-1188. Whether a contract is ambiguous is a question of law. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Amitech U.S.A., Ltd, v. Nottingham Construction Company, 2009-2048 (La. App. 1st Cir. 10/29/10), 57 So.3d 1043, 1058, writs denied, 2011-0866, 2011-0953 (La. 6/17/11), 63 So.3d 1036, 1043.

Regarding Robert's argument that the trial court erred in finding him personally to be a party to the 2014 Purchase Agreement, we find no merit to that argument. Notably, Robert signed the 2014 Purchase Agreement as a "purchaser" without limiting or qualifying the capacity in which he signed, such as by indicating that he was signing in his capacity as an officer or managing member of Nu Farms, LLC, rather than in his personal capacity. Moreover, as noted by the trial court in its reasons for judgment, the 2014 Purchase Agreement, which was drafted by Robert, clearly refers to the "existing rental agreement between the parties," and Robert acknowledged at trial that Nu Farms did not have a rental agreement with Brant. Thus, we find no error in the trial court's finding that Robert was individually bound as a "purchaser" under the 2014 Purchase Agreement. Robert did not purchase Brant's home by the deadline set forth in the 2014 Purchase Agreement and, thus, as determined by the trial court, Robert was in breach of contract.

We likewise find no error in the trial court's obvious rejection of Robert's contention that the right to purchase Brant's home he previously acquired through the 2012 Agreement to Purchase/Rent remained an enforceable right.

As found by the trial court, the 2014 Purchase Agreement "[b]y its very terms" reflect that it was to be read along with the rental terms contained in the prior agreements between Brant and Robert. But, as to Brant and Robert's prior agreement for the purchase of the home, the parties agreed to different terms in the 2014 Purchase Agreement, in that the sale price for the home was changed and a deadline by which the act of sale was to be closed was set, where none had existed before. Moreover, and more importantly, the 2014 Purchase Agreement further provided that in the event the purchaser failed to comply with the agreement in the time specified, the seller "shall have the right to reoffer the property for sale." (Emphasis added). Thus, the trial court's rejection of Robert's argument that his right to purchase Brant's home under the earlier 2012 Agreement to Purchase/Rent remained enforceable is amply supported by the record on appeal.

Additionally, given that Robert agreed in the 2014 Purchase Agreement that Brant would have the right to reoffer the property for sale in the event the purchasers failed to execute the act of sale in the time specified, which Robert (and Nu Farms, LLC) failed to do, we likewise find that the record amply supports the trial court's finding that Robert was liable for his bad faith breach of contract by his actions in attempting to prohibit Brant from exercising that right by filing the aforementioned notice in the conveyance records.

While not separately addressing his remaining assignments of error as to the trial court's rulings related to the claims between Brant and Robert, we likewise find no merit to Robert's remaining assignments of error. Rather, we find no error in the trial court's denial of Robert's exceptions and further find the trial court's findings to be amply supported by the record and its interpretation of the contracts at issue to be legally correct.

We note, however, that the January 26, 2017 judgment contains certain provisions that are indefinite and imprecise. Specifically, with regard to damages, the judgment provides that "Robert Rathe is liable for all damages claimed by Brant Rathe in the above-captioned lawsuit, including $374.00 and $494.00 representing the home inspection and attorney fees." (Emphasis added). Additionally, the judgment further provides that "all declaratory relief as requested by Brant Rathe in his Petition is granted and ... the Court also awards interests and costs."

Although the form and wording of judgments is not sacramental, judgments must be precise, definite and certain, and the amount of recovery should be determinable from the judgment without reference to an extrinsic source. Crockerham v. Weyerhaeuser Holden Wood Prod., 2016-0331 (La. App. 1st Cir. 6/2/17), 223 So.3d 533, 543, writ denied, 2017-1121 (La. 10/27/17), 228 So.3d 1232. Because the exact amount of damages awarded, whether the award includes only the sums of $374.00 and $494.00 or whether the award includes some other amounts as "all damages claimed by Brant Rathe in the above-captioned lawsuit," cannot be determined from this judgment, this portion of the trial court's judgment is not proper and must be vacated. Similarly, the portion of the judgment granting "all declaratory relief as requested by Brant Rathe in his Petition" is likewise uncertain without reference to an extrinsic source, namely, the petition. As such, this portion of the judgment is improper and must be vacated. The matter is remanded to the district for an award of a precise and certain amount of damages and specific declaratory judgment relief, without reference to an extrinsic source. See Crockerham, 223 So.3d at 543-544. See also, In re Succession of Wagner, 2008-0212 (La. App. 1st Cir. 8/8/08), 993 So.2d 709, 724-725, Vanderbrook v. Coachmen Indus., Inc., 2001-0809 (La. App. 1st Cir. 5/10/02), 818 So.2d 906, 913-914, and Clark v. Diamond B. Const., 2000-2146 (La. App. 1st Cir. 12/28/01), 803 So.2d 1113, 1116-1117. In all other respects, we affirm the January 26, 2017 judgment.

MAY 25, 2016 JUDGMENT GRANTING SARAH'S EXCEPTIONS OF NO CAUSE OF ACTION AND NO RIGHT OF ACTION

(Assignment of Error No. 10)

Robert further seeks review of the trial court's May 25, 2016 judgment, which granted Sarah's exceptions of no cause of action and no right of action as to the third-party demand Robert had filed against her. As noted above, Robert refers to this judgment as an "interlocutory judgment" and asserts that he is entitled to seek review of this judgment together with his appeal of the judgment on the merits as to the main and reconventional demands.

At the outset, however, we note that while the May 25, 2016 judgment grants Sarah's exceptions of no cause of action and no right of action, it contains no decretal language and fails to dismiss Robert's third-party demand against her. A judgment that maintains a peremptory exception or grants a motion for summary judgment, yet fails to dismiss a party's claims, lacks decretal language and is not considered a final judgment over which appellate jurisdiction extends. See Gaten v. Tangipahoa Parish School System, 2011-1133 (La. App. 1st Cir. 3/23/12), 91 So.3d 1073, 1074 ; Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1st Cir. 3/24/06), 934 So.2d 66, 67.

Indeed, had the judgment dismissed Robert's claims against Sarah, it would have been immediately appealable. See LSA-C.C.P. art. 1915(A)(1). Thus, given the lack of decretal language dismissing Robert's third-party demand, the May 25, 2016 judgment presents nothing for us to review. As such, we decline to address Robert's arguments with regard to this judgment. At such time as the trial court renders a proper final judgment with decretal language, Robert will have the opportunity to appeal that judgment.

JUNE 21, 2016 JUDGMENT GRANTING JENNIFER'S EXCEPTIONS OF NO CAUSE OF ACTION AND LACK OF SUBJECT MATTER JURISDICTION

(Assignment of Error No. 11)

Robert also seeks review of the trial court's June 21, 2016 judgment granting Jennifer's exceptions of no cause of action and lack of subject matter jurisdiction as to the third-party demand Robert filed against her. As with the May 25, 2016 judgment, while this judgment grants Jennifer's exceptions, it contains no decretal language and fails to dismiss Robert's third-party demand against her. Thus, for the same reasons as set forth with regard to the May 25, 2016 judgment on Sarah's exceptions, we must conclude that the June 21, 2016 judgment presents nothing for us to review with regard to Robert's third-party demand against Jennifer. See Johnson, 934 So.2d at 67. Upon the trial court's rendition of a proper final judgment with decretal language as to Jennifer's exceptions as well, Robert would likewise have an opportunity to appeal that judgment.

Moreover, while the June 21, 2016 judgment also awards Jennifer costs and attorney's fees with regard to the third-party demand, because we are unable to review the merits of the judgment as to the exceptions in the absence of decretal language dismissing this third-party demand, we likewise decline to review the sanction award related to the filing of that incidental action at this time.

CONCLUSION

For the above and foregoing reasons, the Motion to Take Judicial Notice of Conveyance of Property Subject to Lawsuit filed by Robert Rathe is denied. The portions of the trial court's January 26, 2017 judgment ordering that "Robert Rathe is liable for all damages claimed by Brant Rathe in the above-captioned lawsuit, including $374.00 and $494.00 representing the home inspection and attorney fees" and that "all declaratory relief as requested by Brant Rathe in his Petition is granted and that the Court also awards interests and costs" are vacated, and this matter is remanded to the trial court with instructions to enter a judgment setting forth the particular amount of damages and the specific declaratory judgment relief awarded, without reference to extrinsic sources. In all other respects, the January 26, 2017 judgment is affirmed.

Because the May 25, 2016 judgment granting Sarah Rathe's exceptions of no cause of action and no right of action and the June 21, 2016 judgment granting Jennifer Rathe's exceptions of no cause of action and lack of subject matter jurisdiction lack decretal language as to the third-party demands filed by Robert Rathe against these parties, we decline to review these judgments in this appeal of the January 26, 2017 judgment.

Costs of this appeal are assessed against Robert J. Rathe, Jr.

MOTION TO TAKE JUDICIAL NOTICE OF CONVEYANCE OF PROPERTY SUBJECT TO LAWSUIT DENIED; JANUARY 26, 2017 JUDGMENT VACATED IN PART AND AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

      Because all the parties herein share the same last name, they are referenced by their first names for ease of understanding. Our use of such for ease of reference in no way signifies a lack of respect for the Rathe family or the issues between its members.

      The purchase price of the home was listed as $322,560.00, and the monthly rental was $2,000.00, with $1,500.00 to be paid by Robert on the first of each month and the outstanding balance to be paid in full on the closing date of purchase.

      By Act of Donation dated June 17, 2014, Robert and his wife, Jennifer Rathe, donated Lot 8A1 in The Plantation development in St. Tammany Parish to Brant and his wife, Sarah Rathe.

      The December 6, 2013 Addendum provided that $2,250.00 was to be paid on the first of each month, commencing January 1, 2014, and that the outstanding balance (calculated as the total months of rent X $500.00) would be paid in full on the "closing date of purchase." The outstanding balance as of December 31, 2013 was listed as $7,000.00.

      The January 13, 2014 Addendum provided that $2,500.00 was to be paid on the first of each month, commencing January 1, 2014, and that the outstanding balance (calculated as the total months of rent X $2,500.00) would be paid in full on the "closing date of purchase." The outstanding balance as of December 31, 2013 was again listed as $7,000.00.

      While the 2014 Purchase Agreement lists the deadline for the act of sale as March, 31, 2013 , the trial court concluded that this was a typographical error given that the agreement was not executed until February 21, 2014, and that the intention of the parties was to list the closing deadline as March 31, 2014 . Robert has not challenged this finding on appeal.

      Although not a party to any rental agreement, Brant's mother, Jennifer, was residing in Brant's home. She testified that the original intent of the lease and eventual purchase of Brant's home was that she and Robert would use it as an "interim home" until they built a new home. However, at the point when she moved into Brant's home, she and Robert had separated. When Brant later offered to sell the home to her, she indicated to him at that time that she was not in a financial position to purchase it. Robert also acknowledged at trial that he had communicated to Brant "perhaps once or twice over the course of these events" that he had no interest in buying Brant's home.

      In fact, the parties stipulated that the sale of Brant's home to the third-party purchasers was not accomplished as a result of the notice that Robert filed in the conveyance records. Although the parties to the purchase agreement had agreed to extend the purchase agreement on three separate occasions, on June 22, 2015, September 11, 2015, and November 3, 2015, it was ultimately cancelled on January 1, 2016, due to this pending litigation between Robert and Brant, and the prospective purchasers demanded damages of $374.00 for the home inspection that had been performed and $362.00 in attorney's fees related to the closing that did not occur.

      As noted in footnote 8, the parties stipulated at the beginning of trial that the prospective purchasers had demanded damages of $374.00 for the home inspection that had been performed and $362.00 in attorney's fees related to the closing that did not occur. Despite these stipulated amounts, in his post-trial memorandum, Brant claimed that he had to pay the prospective purchaser $494.00 in legal fees and that the bill was stipulated to and in evidence. However, documents establishing the amount of attorney's fees incurred by the prospective purchasers were apparently attached to the deposition of one of the prospective purchasers, and that deposition was not offered into evidence upon the parties entering various stipulations, including the stipulation as to the amounts of the home inspection and the attorney's fees.


author: CHUTZ, J.

text:
    Richard CREEL v. DOLPHIN SERVICES, L.L.C., Masse Contracting, Inc., Suncoast Fabrication Services, Inc., ABC Insurance Company, EFG Insurance Company and XYZ Insurance Company
    2017 CA 1355
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: AUGUST 22, 2018
    H. Price Mounger, III, Kenneth Henry Hooks, III, Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant, Richard Creel
    M. Blake Monrose, Lafayette, Louisiana, Douglas F. Fisher, Lafayette, Louisiana, Counsel for Intervenor-Appellant, Great American Alliance Insurance Company
    Robert R. Johnston, Jacques P. DeGruy, Rowen A. Flicker, New Orleans, Louisiana, Counsel for Defendants-Appellees, International-Matex Tank Terminals and IMTT Bayonne, LLC
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   CHUTZ, J.

Plaintiff-appellant, Richard Creel, and intervenor-appellant, Great American Alliance Company (Great American), appeal the trial court's judgment, granting summary judgment in favor of defendants-appellees, International-Matex Tank Terminals (IMTT) and IMTT-Bayonne, LLC, which, applying Louisiana law, determined that defendants as Creel's statutory employers are immune from tort liability and entitled to a dismissal of Creel's claims. The appealed judgment also denied Creel's cross motion for summary judgment, seeking an application of New Jersey law and a finding that the defendants do not have tort immunity. Concluding that the trial court applied the incorrect choice-of-law provisions, we reverse the grant of defendants' motion for summary judgment, affirm the denial of Creel's cross motion for summary judgment, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On March 3, 2014, while employed as an electrician for his direct employer, Versatech Automation Services, LLC (Versatech), Creel was working at the IMTT-Bayonne, LLC facility in Bayonne, New Jersey. He was on a platform and, as he turned to get his tools, an unanchored grating fell through the platform, causing Creel to also fall through and sustain injuries to his back and knee.

The Employer's First Report of Accidental Injury was filed in New Jersey. Great American subsequently changed the jurisdiction on the claim to Louisiana and began paying Creel weekly disability benefits.

Soon after, Creel initiated this tort litigation arising out of the accident and named numerous entities as defendants, alleging they were responsible for the unanchored condition of the grating. By amendments to his petition, Creel also added IMTT and IMTT-Bayonne, LLC as defendants, contending they were liable to him as premises owners. Great American intervened in the lawsuit, seeking reimbursement from all parties found liable to Creel.

Thereafter, IMTT and IMTT-Bayonne, LLC filed a joint motion for summary judgment, averring that although the accident occurred in New Jersey, Louisiana law applied to Creel's claim and that they were entitled to dismissal from the litigation. Creel subsequently filed a cross motion for summary judgment, averring that New Jersey law applied to the resolution of the dispute and that, under New Jersey law, neither IMTT nor IMTT-Bayonne, LLC were entitled to dismissal from the lawsuit.

After a hearing, the trial court issued reasons for judgment, concluding that Louisiana law applied to the issue of whether IMTT and IMTT-Bayonne, LLC were statutory employers and that under Louisiana Workers' Compensation provisions, these defendants were immune from tort liability. A judgment subsequently was rendered in conformity with the trial court's written reasons, granting IMTT and IMTT-Bayonne, LLC's joint motion for summary judgment, dismissing Creel's claims against them, and denying Creel's cross motion for summary judgment. Creel and Great American appeal.

DISCUSSION

In reaching its conclusion that Louisiana law applied to the issue of whether IMTT and IMTT-Bayonne, LLC are Creel's statutory employers, the trial court looked to Book IV of the Louisiana Civil Code, entitled "Conflicts of Law." Identifying the issue before it as one of loss distribution and financial distribution, the trial court then applied the provisions of La. C.C. art. 3544.

Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of the Civil Code. La. C.C. art. 14. Because the Workers' Compensation Act contains specific provisions on choice of law in workers' compensation matters, supplemented where necessary by the interpretive case law, Book IV of the Civil Code is inapplicable. See Johnson, 14 Louisiana Civil Law Treatise, Workers' Compensation Law and Practice § 404 (5th ed. 2010).

La. R.S. 23:1035.1, entitled "Extraterritorial coverage," states in relevant part:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he ... would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury[:]
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

Thus, according to this statute, workers' compensation coverage for an injured employee working outside the territorial limits of the state is only available if, at the time of the injury, his employment is principally "localized" in Louisiana or he is working under a contract of hire made in this state. Kennington v. H. Blume Johnson, Inc., 94-0744 (La. 7/1/94), 638 So.2d 1066, 1067 (per curiam).

In this case, the parties provided evidence in conformity with their respective allegations that Book IV of the Civil Code applied to the issue of which state's law applied to the determination of whether IMTT and/or IMTT-Bayonne, LLC are entitled to tort immunity. Our review of the attachments to the motions for summary judgment admitted into evidence shows that IMTT and IMTT-Bayonne, LLC failed to establish that Creel's employment was principally localized in Louisiana. Additionally, to the extent that IMTT and IMTT-Bayonne, LLC sustained their initial burden of proof, Creel responded with sufficient evidence to demonstrate an outstanding issue of material fact insofar as whether Creel was working under a contract of hire made in Louisiana.

Mindful that the determination that the payment of workers' compensation benefits in Louisiana was an administrative determination by the workers' compensation carrier, not one that was litigated in the courts, and that in presenting their motions for summary judgment the parties did not raise the issue of the application of the provisions of La. R.S. 23:1035.1 to the choice-of-law determination, see La. C.C.P. art. 966F, we conclude that, on the showing made, the trial court erred in granting summary judgment in favor of IMTT and IMTT-Bayonne, LLC, based on its determinations that Louisiana law applied and under an application of Louisiana law, defendants were Creel's statutory employers who were immune from tort liability and, therefore, entitled to dismissal from the lawsuit. For the same reasons, we find no error in the trial court's denial of Creel's cross motion for summary judgment seeking to apply New Jersey law to find that IMTT and IMTT-Bayonne, LLC are not immune from tort liability.

DECREE

For these reasons, that portion of the trial court's judgment, which granted IMTT and IMTT-Bayonne, LLC's joint motion for summary judgment, is reversed. That portion of the trial court's judgment, which denied Creel's cross motion for summary judgment, is affirmed. The matter is remanded to the trial court for proceedings consistent with this opinion. Appeal costs are assessed one-half to plaintiff-appellant, Richard Creel, and one-half to defendants-appellees, International-Matex Tank Terminals and IMTT-Bayonne, LLC.

APPEAL MAINTAINED; REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

      As part of their appeal, Creel and Great American contend that the trial court erred in its choice-of-law analysis, which resulted in a denial of Creel's cross motion for summary judgment on the issue of the applicability of New Jersey law to the determination of whether defendants are immune from tort liability. Although the denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law, where there are cross motions for summary judgment raising the same issues, this court can review the denial of a summary judgment in addressing the appeal of the granting of the cross motion for summary judgment. Waterworks Dist. No. 1 of Desoto Par. v. Louisiana Dep't of Pub. Safety & Corr., 2016-0744 (La. App. 1st Cir. 2/17/17), 214 So.3d 1, 3 n.1, writ denied. 2017-0470 (La. 5/12/17), 219 So.3d 1103. Thus, because we consider the propriety of the trial court's choice-of-law determination in conjunction with its grant of summary judgment in favor of defendants, the denial of Creel's cross motion for summary judgment is also before us in this appeal.

      Because in its answer in Creel's first amended petition, IMTT identified IMTT-Bayonne, Inc. as the premises owner, Creel amended his petition a second time to name this entity as a defendant, alleging it was liable as the facility owner. However, IMTT-Bayonne, LLC answered Creel's twice amended petition, noting that had been incorrectly named as IMTT-Bayonne, Inc.

      See La. R.S. 23:1032 and 1061.

      In response to this court's determination that the trial court's judgment lacked necessary decretal language, the trial court issued an amended judgment which we find cures the deficiency.

      La. C.C. art. 3544 states:
      Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order:
      (1) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state, by the law of that state. Persons domiciled in states whose law on the particular issue is substantially identical shall be treated as if domiciled in the same state.
      (2) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in different states: (a) when both the injury and the conduct that caused it occurred in one of those states, by the law of that state; and (b) when the injury and the conduct that caused it occurred in different states, by the law of the state in which the injury occurred, provided that (i) the injured person was domiciled in that state, (ii) the person who caused the injury should have foreseen its occurrence in that state, and (iii) the law of that state provided for a higher standard of financial protection for the injured person than did the law of the state in which the injurious conduct occurred.

      See Stapleton v. Travelers Ins. Co., 359 So.2d 1051, 1054-55 (La. App. 3d Cir.), writ denied, 360 So.2d 1176 (La. 1978) (giving the phrase "principally localized" a broad interpretation and applying a totality-of-the-circumstances standard to conclude that the plaintiff's employment was principally localized in Louisiana when the injury occurred out of state, to an individual who had spent only about three months of employment in Louisiana and the remainder out of state but the employee's salary was paid from an office within Louisiana; his work vehicles were registered and licensed here; he received travel expenses from the Louisiana office for his travel to out-of-state work locations; and all of his weekly job reports were filed with the Louisiana office).

      See Lakvold v. Stevens Transp., 95-0866 (La. App. 1st Cir. 12/15/95), 665 So.2d 828, 829 (in determining whether a contract should be regarded as a Louisiana contract or that of another state's in workers' compensation cases, the parties' intent should be paramount. Some of the factors to be considered in determining the parties' intent include the domicile of the parties, the nature of the work to be done, and the place where the employment was initiated). While IMTT and IMTT-Baronne, LLC showed that IMTT had a corporate office in New Orleans, Louisiana, IMTT-Bayonne, LLC had a principal business establishment in Harvey, Louisiana, and that Creel was hired out of Versatech's Harvey, Louisiana office, Creel showed that the contract did not go into effect until Versatech's arrival at the IMTT-Bayonne LLC facility. And while it was undisputed that Creel worked as an electrician, the nature of the Versatech's work in the IMTT-Bayonne, LLC facility was not sufficiently developed by either Creel or IMTT and IMTT-Baronne, LLC to ascertain the parties' intent as to whether the contract should be considered a Louisiana contract.

      See e.g., La. R.S. 23:1035.1(2) & (2)(b) providing that the payment or award of benefits under the workers' compensation law of another state shall not be a bar to a claim for benefits under Louisiana's act and allowing that the total amount of all income benefits paid or awarded the employee under another states workers' compensation law shall be credited against the total amount of income benefits which would have been due the employee under Louisiana's act had the claim been made solely under this act; see also 14 Louisiana Civil Law Treatise, Workers' Compensation Law and Practice § 409 (addressing the application of more than one state's law to the controversy).

      La. C.C.P. art. 966F states, "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time."