text:
    STATE of Louisiana v. Caresses PERIQUE
    No. 2018-KK-981
    Supreme Court of Louisiana.
    June 28, 2018
   PER CURIAM

The police officer lawfully stopped the defendant's vehicle and detained the defendant after observing several traffic violations. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 ("[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."). The officer had sufficient probable cause to arrest the defendant upon seeing him commit the violations. La. C.Cr.P. art. 213(A)(1). Further, during the traffic detention, the officer properly removed the defendant from the area of the vehicle upon learning there was an outstanding warrant for the defendant's arrest and witnessing the defendant engage in furtive movements near the driver's door and seat.

The subsequent warrantless search and seizure of the weapon from under the defendant's driver's seat by police was not unreasonable when there was an immediate and constitutionally reasonable concern for the safety of the officers and the general public. Arizona v. Gant, 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (" [N.Y. v. ] Belton, [453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ] does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle ... [However,] officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle's recent occupant justify a search."). The defendant's vehicle obstructed traffic as it was parked near a fuel pump at a gas station located at a busy intersection. There was the risk of the officers and general public being injured by the loaded semi-automatic handgun as the officer stepped into the vehicle to turn on the ignition to move the vehicle. There was also the risk of persons gaining access to the vehicle and finding the weapon. Further, the scope of the warrantless search did not exceed what was necessitated by the exigency. The officer conducted a protective sweep of only the immediate area where the defendant was observed gesturing near the driver's seat and door.

Accordingly, we find the trial court abused its discretion by granting the defendant's motion to suppress the physical evidence seized during the search of defendant's vehicle. We grant the state's writ application and reverse as to the trial court's suppression of the physical evidence. The case is remanded to the trial court for further proceedings.

Hughes, J., concurs.

GENOVESE, J., would deny.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Shannon Paul ISRAEL
    NO. 2018-KH-0794
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in. the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Joshua SLACK v. BEAUREGARD PARISH SHERIFF'S OFFICE and Marcus Terry
    NO. 2018-CI-0795
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Demarcus S. ROY
    NO. 2018-KH-0799
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Terrence PAYNE
    NO. 2018-KH-0812
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Thomas MORGAN
    NO. 2018-KH-0835
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Kenan ALLEN v. STATE of Louisiana
    NO. 2017-KH-0350
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Marquise OLIVER
    NO. 2018-KH-0423
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Steve PERKINS v. STATE of Louisiana
    NO. 2017-KH-0675
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Hassan A. ABDUL, IV v. STATE of Louisiana
    NO. 2016-KH-2039
    Supreme Court of Louisiana.
    August 3, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE EX REL. Larry J. ROLLINS v. STATE of Louisiana
    NO. 2017-KH-0991
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Ladarius WILLIAMS v. STATE of Louisiana
    NO. 2018-KH-0017
    Supreme Court of Louisiana.
    August 3, 2018
    Reconsideration denied.
   HUGHES, J., would grant reconsideration.


text:
    Calvin LEWIS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0527
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Tyronne WELLS v. STATE of Louisiana
    NO. 2016-KH-2064
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


text:
    STATE of Louisiana v. Sidney ROBINSON
    NO. 2018-KH-0535
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Donald J. STELLY a/k/a Donald Joseph Stelly v. STATE of Louisiana
    NO. 2017-KH-0204
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Stelly v. State, 15-2199 (La. 3/14/16), 186 So.3d 644.


text:
    STATE EX REL. Melvin TYLER v. STATE of Louisiana
    NO. 2017-KH-0536
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Moot. See R.S. 15:574.4(H).


text:
    STATE of Louisiana v. Jacob E. TIPTON
    NO. 2018-KH-0569
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Jamie HAWTHORNE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017-CI-0540
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


author: GUIDRY, J., recused.

text:
    Stephen Michael PETIT, Jr. v. Richard Lynn DUCOTE and Kyle Ardoin, in His Official Capacity as Secretary of State for the State of Louisiana
    NO. 2018-C-1318
    Supreme Court of Louisiana.
    August 9, 2018
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Jakauri C. WESLEY
    NO. 2018-KH-0570
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: PICKETT, Judge. THIBODEAUX, Chief Judge, dissenting.

text:
    SOUTHLAND ENTERTAINMENT, INC. d/b/a BED Niteclub & Lounge v. LOUISIANA DEPARTMENT OF REVENUE, OFFICE OF ALCOHOL AND TOBACCO CONTROL
    16-925
    Court of Appeal of Louisiana, Third Circuit.
    July 19, 2017
    Marcus A. Allen, Sr., 251 La Rue France, Lafayette, LA 70508, Telephone: (337) 289-1762, COUNSEL FOR PLAINTIFF/APPELLANT: Southland Entertainment, Inc. d/b/a BED Niteclub & Lounge
    Brett A. Bonin, Lousiana Department of Revenue, Office of Alcohol and Tobacco Control, P.O. Box 66404, Baton Rouge, LA 70896, Telephone: (225) 925-4041, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Department of Revenue, Office of Alcohol and Tobacco Control
    Jacqueline B. Wilson, Louisiana Department of Revenue, Office of Alcohol and Tobacco Control, 8585 Archives Avenue, Suite 305, Baton Rouge, LA 70809, Telephone: (225) 925-4607, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Department of Revenue, Office of Alcohol and Tobacco Control
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Elizabeth A. Pickett, Billy H. Ezell, and Van H. Kyzar, Judges.
   PICKETT, Judge.

The Commissioner of the Office of Alcohol and Tobacco Control, Louisiana Department of Revenue ("ATC") suspended the alcohol permit of the plaintiff, Southland Entertainment, Inc. d/b/a BED Niteclub & Lounge ("Southland Entertainment"), after finding that the business was in violation of La.R.S. 26:90(A)(11). Southland Entertainment appealed the Commissioner's decision pursuant to La.R.S. 26:303(A). After considering the testimony and other evidence presented by the parties, the district court upheld the suspension of Southland Entertainment's liquor license and the imposition of a monetary fine. On appeal, Southland Entertainment contends that the ATC failed to submit sufficient evidence to support the penalties imposed upon it. For the following reasons, we find the district court's findings are supported by the record and affirm its judgment.

FACTS AND PROCEDURAL HISTORY

Southland Entertainment is a dance and nightclub located in downtown Lafayette. On May 4, 2015, Agent Tyrone Banks of the ATC received a telephone complaint, alleging that Southland Entertainment may have violated La.R.S. 26:286(A)(11) by allowing controlled dangerous substances ("CDS") on the business premises. Mr. Reginald Mosley, the owner of Mosley Management, LLC, reported the complaint. Pursuant to a Consent Agreement entered into between ATC and Mr. Justin Lee, the owner of Southland Entertainment, Mr. Mosley's company was the exclusive security provider to Southland Entertainment. Mr. Mosley met with Agent Banks and expressed his concern and opinion that the ownership/management of Southland Entertainment was not fully committed to preventing the possible use of CDS, specifically marijuana, on the premises.

Following Mr. Mosley's verbal complaint, Agent Banks initiated an undercover law enforcement investigation in order to find activity to support Mr. Mosley's allegation of permitted use of CDS on the premises by the ownership, management, or employees of Southland Entertainment. As part of the investigation efforts, Agent Banks enlisted various police officers from the University of Louisiana, Lafayette Metro Narcotics Task Force, as well as other agents with the ATC, to conduct undercover surveillance at Southland Entertainment during business hours on three nights in the summer of 2015. The purpose of the surveillance was to look for any use of CDS on the premises and to observe whether any of the ownership, management, security, or employees saw and permitted the use of said illegal drugs. After each night's undercover surveillance, the officer and/or agent submitted a written report of their findings.

At the conclusion of the surveillance and investigation period, Agent Banks submitted all of the undercover investigative reports to the ATC legal department for review, whereupon the ATC issued an Administrative Citation to Southland Entertainment for two counts of violating La.R.S. 26:90(A)(11). The case initially went before the Commissioner of the ATC for an administrative hearing, after which the Commissioner concluded that Southland Entertainment had violated La.R.S. 26:90(A)(11). Southland Entertainment appealed the decision to the district court as provided in La.R.S. 26:303(A). At the conclusion of the trial, the district court upheld the suspension of Southland Entertainment's liquor license and monetary fine. Southland Entertainment appealed.

ISSUE

Southland Entertainment's assignments of error require this court to determine whether the district court erred in upholding the Commissioner's suspension of its liquor license based on the evidence presented by the ATC.

STANDARD OF REVIEW

To reverse a district court's finding of fact, an appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the finding is clearly wrong or manifestly erroneous. Mart v. Hill , 505 So.2d 1120 (La.1987). Pursuant to this standard of review, the appellate court does not determine whether the district court was right or wrong, but whether its conclusion was reasonable. Rosell v. ESCO , 549 So.2d 840 (La.1989) ; Stobart v. State, Through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993).

LAW AND DISCUSSION

Consent Agreement

Southland Entertainment first argues that the district court erred in upholding the Commissioner's suspension of its liquor license for the breach of the terms of the Consent Agreement. We find that the Consent Agreement is independent of the violations on appeal before us and is irrelevant to the merits of the case. The rulings of the Commissioner and the district court were not based on the Consent Agreement, but on Southland Entertainment's violation of La.R.S. 26:90(A)(11). Furthermore, the terms of the Consent Agreement had expired at that time, and its stipulations are immaterial to the merits of this case.

Evidence at Trial

Southland Entertainment next asserts that the district court erred in granting judgment in favor of the ATC in upholding the Commissioner's suspension of the alcohol permit based on the testimony of Agent Banks and Detective Kevin Williams of the Lafayette Police Department. Louisiana Revised Statutes 26:90(A)(11) prohibits anyone holding a retail alcohol dealer's permit, his agent, employee, or representative from illegally possessing or permitting "the consumption on or about the licensed premises of any kind or type of narcotics or habit forming drugs." Southland Entertainment contends that the facts, testimony, and evidence submitted at trial do not support the law and ruling issued by the district court.

Pursuant to La.R.S. 26:304, proceedings before the ATC are civil proceedings. Unless otherwise provided by law, the burden of proof in all civil matters is preponderance of the evidence. Talbot v. Talbot , 03-814 (La. 12/12/03), 864 So.2d 590. "Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not." Hebert v. Rapides Parish Police Jury , 06-2001, p. 7 (La. 4/11/07), 974 So.2d 635, 642.

Detective Williams was the ATC's sole witness on the issue of whether Southland Entertainment violated La.R.S. 26:90(A)(11) before the district court. Detective Williams related that he had been employed in corrections and law enforcement since 2001, that he had been working for the Lafayette Police Department for ten years, and that he had been working specifically in narcotics for more than one year with the Metro Narcotics Task Force before he performed the undercover surveillance at Southland Entertainment. Detective Williams testified that although he had only been specifically assigned to narcotics for just over one year, he had dealt with narcotics during his entire law enforcement career. He further testified that he had been field certified annually in narcotics detection for the identification of marijuana, cocaine, methamphetamines, and various other drugs. When asked specifically about the detection and identification of marijuana, Detective Williams explained that marijuana has a distinctive smell, that different strains of marijuana smell differently, and that, based on his years of experience, he can identify marijuana by smell.

Detective Williams initially outlined the manner in which the surveillance was conducted at Southland Entertainment, noting that he and another officer visited Southland Entertainment on three occasions, paid the admission fee, purchased drinks and drank only portions of those drinks to avoid looking suspicious, and observed the patrons and employees during those visits. He reported seeing and smelling marijuana in use on two of the three evenings he conducted surveillance at the club. With regard to the two evenings during which he reported that marijuana was openly used in the club, he testified that nothing was done to stop the drug use and that he had no doubt that illegal marijuana was being used. With regard to the surveillance that he conducted on July 17, 2015, Detective Williams explained that hydroponic marijuana, a type of marijuana that is known to be used today, has a very strong odor, such that it can be smelled even when it is not being burned. He further explained that when being burned, the smell becomes more intense. Detective Williams testified that he smelled hydroponic marijuana during the course of his investigation that evening.

Southland Entertainment urges that Detective Williams' testimony was insufficient to carry the ATC's burden of proof. In State v. Friday , 10-2309 (La.App. 1 Cir. 6/17/11), 73 So.3d 913, writ denied , 11-1456 (La. 4/20/12), 85 So.3d 1258, the court addressed this issue by rejecting the defendant's objection to the district court's acceptance of a police officer's opinion testimony regarding the typical behavior of a collector of child pornography because the officer had not been tendered and accepted as an expert. In Friday , 73 So.3d at 922 (case citation omitted), the court dismissed the defendant's objection, explaining:

A law enforcement officer is permitted to express an opinion regarding matters of personal knowledge gained through experience, even if the witness is not first qualified as an expert. See La.Code Evid. art. 701. The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. Accordingly, while not tendered as an expert, [the police officer's] personal knowledge, training, and experience in the field enabled him to give an opinion about what is typical for a collector of child pornography.

In light of Detective Williams' personal knowledge gained through his experience and professional education as a law enforcement officer, Southland Entertainment has failed to show that the district court abused its discretion in accepting Detective Williams' testimony that marijuana was in use on two of the three occasions that he conducted undercover surveillance at its establishment. Accordingly, we find no manifest error with the district court's finding that Southland Entertainment violated La.R.S. 26:90(A)(11).

DISPOSITION

For these reasons, the judgment of the district court is affirmed. All costs are assessed to Southland Entertainment, Inc. d/b/a BED Niteclub & Lounge.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

COOKS, J., dissents for the reasons assigned by Thibodeaux, C.J., and also assigns additional reasons.

THIBODEAUX, Chief Judge, dissenting.

The trial court erred in granting judgment in favor of the ATC in upholding the Commissioner's suspension of the alcohol permit based on the testimony of Agents Banks and Williams. Louisiana Revised Statutes 26:90(A)(11) states that "no person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person ... shall illegally sell, offer for sale, possess or permit the consumption on or about the licensed premises of any kind or type of narcotics or habit forming drugs." On appeal, Southland Entertainment contends that the facts, testimony, and evidence submitted at trial did not support the law and ruling issued by the district court. While I recognize the credibility deference due to the trial court, I find that taken as a whole, the record does not support the trial court's stated reasons for judgment. There is no objective evidence in the record to support the determination that patrons of Southland Entertainment were smoking marijuana on the premises with impunity. The record reflects only mere suspicions and subjective observations. Accordingly, my review of the record indicates that the trial court was clearly wrong in finding that Southland Entertainment violated La.R.S. 26:90(A)(11).

In Mart v. Hill , 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court stated:

[I]f an appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions. An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact's refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.

At the conclusion of the surveillance and investigation period, Agent Banks submitted all of the undercover investigative reports to the ATC legal department for review. None of the written reports could substantiate through testing or verification that actual marijuana use was occurring. The submitted reports indicate that the officers and agents observed patrons of Southland Entertainment smoking suspected marijuana. However, no marijuana was ever confiscated, recovered, or field tested, and no patron was arrested for the use of an illegal drug. "Certainly, the factfinder should be accorded great latitude and discretion, but discretion must always be buttressed by sound judgment. It is not immutable." Butler v. Zapata Haynie Corp. , 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, 1278. The trial court reached its determination that Southland Entertainment had permitted the use of CDS by judging the case solely on the testimony of Agent Banks and his fellow officers. The trial judge's determination was not reasonable nor is it legally sustainable.

In determining whether an accident did occur aboard a vessel, this Court in Butler v. Zapata Haynie Corp. , 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, noted the need for documents, objective evidence, and objectively-corroborated testimony, in order to support the credibility findings of the lower court. The trial court rejected the testimony of the plaintiff and his witnesses, concluding that an accident did not occur aboard the vessel. On appeal, this Court examined the record as a whole, and found that it contained ample objective and documentary evidence to sufficiently overcome the trial court's credibility findings to support a reversal. Such evidence included testimony that was supported by statements from other crew members. The court found it important that these statements corroborated the testimony of the plaintiff.

Comparatively, there is nothing in this case to corroborate the testimony of Agents Banks and Agent Williams that patrons of Southland Entertainment were smoking marijuana on the premises. For example, at trial Agent Williams was asked:

Q: Do you have anything to suffice or sustain the fact that what you saw these individuals smoking was, in fact, marijuana?
A: Just my experience.

Such subjective observations are insufficient to warrant a finding that Southland Entertainment violated La.R.S. 26:90(A)(11). "Uncontroverted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence and sound reasons for its rejection." Guidry v. Lafayette Health Ventures, Inc. , 15-307 (La.App. 3 Cir. 7/20/16), 203 So.3d 436, 440. The circumstances in this case casting suspicion are that no arrests were made, no contraband was seized, and the State's main witness, a narcotics officer, only suspected the presence of marijuana. No objective evidence was submitted to the court during the trial to prove that Southland Entertainment permitted any controlled dangerous substance to be consumed on the premises. Accordingly, the trial court was manifestly erroneous in its findings, and the majority compounds that error in affirming

For the foregoing reasons, I respectfully dissent.

COOKS, J., dissents for the reasons assigned by Thibodeaux, C.J., and also assigns additional reasons.

I join Chief Judge Thibodeaux's well-reasoned dissent and if only my pen could scream-I ask with exclamation to follow: When has constitutional due process rested on so little?!!! Can the government really take away a bar owner's ability to operate a club and earn a living just because an ATC agent "merely suspects a patron is smoking marijuana in the place?" Wow!!

      La.R.S. 26:90(A)(11) states:
      No person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises: ... Illegally sell, offer for sale, possess, or permit the consumption on or about the licensed premise of any kind or type of narcotics or habit forming drugs.

      La.R.S. 26:303(A) states:
      Any party aggrieved by a decision of the commissioner to withhold, suspend, or revoke a permit or of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant's or permittee's place of business, proposed or actual, as the case may be. Such appeals shall be granted by the clerk of court on written petition together with a bond for costs. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard.

      La.R.S. 26:286(A)(11) states:
      No person holding a retail dealer's permit and no servant, agent, or employee of the permittee shall do any of the following acts upon the licensed premises: ... Illegally sell, offer for sale, possess, or permit the consumption on or about the licensed premises of any kind or type of controlled dangerous substances.


text:
    SUCCESSION OF Dinesh SHAW, M.D., v. ALEXANDRIA INVESTMENT GROUP, LLC
    17-582
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 2017
   Michael M. Meunier, Matthew K. Brown, Imtiaz A. Siddiqui, Sullivan, Stolier, Schulze, & Grubb LLC, 909 Poydras Street, Suite 2600, New Orleans, LA 70112-1044, (504) 561-1044, COUNSEL FOR DEFENDANT/APPLICANT: Alexandria Investment Group, LLC

W. Alan Pesnell, The Pesnell Law Firm, P. O. Box 1794, Shreveport, LA 71166-1794, (318) 226-5577, COUNSEL FOR PLAINTIFF/RESPONDENT: Succession of Dinesh Shaw, M.D.

William M. Ford, Attorney at Law, P. O. Box 12424, Alexandria, LA 71315-2424, (318) 442-8899, COUNSEL FOR PLAINTIFF/RESPONDENT: Succession of Dinesh Shaw, M.D.

Jimmy Roy Faircloth, Jr., Barbara Bell Melton, Faircloth, Melton, & Sobel, LLC, 105 Yorktown Drive, Alexandria, LA 71303, (318) 619-7755, COUNSEL FOR INTERVENOR/RESPONDENT: Red River Bank

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and D. Kent Savoie, Judges.

SAVOIE, Judge.

Defendant-Relator, Alexandria Investment Group, LLC (Company), seeks supervisory writ from the judgment of the trial court, granting the motion in limine filed by plaintiff, Succession of Dinesh Shaw, M.D.

This suit was brought by plaintiff to compel Relator's compliance with its Operating Agreement to buy the ownership interest of its deceased member, Dr. Dinesh Shaw (Dr. Shaw), at the "Death Purchase Price" set forth in provision 10.3.1 (emphasis added), which provides, in part:

If a Member dies, then the Company shall purchase the Ownership Interest of the deceased Member for the Death Purchase Price (defined below). As used in this Section 10.3, the term "Death Purchase Price" shall mean the appraised value of the Company's multiplied by the Ownership Interest percentage of the deceased Member.

On March 23, 2017, plaintiff filed its motion in limine, requesting the court "exclude any and all references to [ ] evidence, testimony and argument relating to the valuation of decedent's 'membership interest,' and to limit the testimony, evidence, and argument to the contractually agreed upon method of valuation defined in the Operating Agreement." Plaintiff argued that the contractually agreed upon valuation method for the "Death Purchase Price" is the "appraised value of the Company's [assets] multiplied by the Ownership Interest of the deceased Member." In its interpretation, i.e. , its insertion of the word "assets," plaintiff looked to "each and every other provision in the Operation Agreement calling for a valuation and purchase of a person's membership interest" in the context of retirement (10.5.1), involuntary termination (10.6.2), and bankruptcy (10.2.3), and in each instance, the formula consisted of "the appraised value of the Company's assets ... multiplied by the Ownership Interest" of the withdrawing member.

Relator opposed the motion, arguing: (1) the language of the Operating Agreement specifically calls for the value of the Company, not its assets; (2) testimony regarding the value of the Company and related matters is essential to insure that any payment to Dr. Shaw of a final distribution under the Operating Agreement is in accordance with law; (3) the proposed testimony is relevant under the default provision of our LLC law, which states that payment is based on the fair market value of the Company; and (4) evidence regarding the financial condition of the Company is even relied upon by plaintiff's appraisal expert and, thus, is relevant. Under Relator's reading of the contract, the members intentionally omitted the word "assets" and agreed to calculate the "Death Purchase Price" based on the value of the Company as a whole; therefore, the apostrophe "s" was merely a typographical error.

On April 24, 2017, the trial court heard the motion and ruled from the bench:

The motion in limine before me deals with the operating agreement signed by all the doctors plus the late Dr. Shaw. The death of a member section ... ten point three point one deals with the term death purchase price shall be appraised value of the company's multiplied by the ownership interest of the deceased member. That paragraph then continues with the paragraph ten point five with the retirement and ten point six with involuntary termination, more or less has the same words but for the word assets. The court is going to grant the motion in limine. I believe the operating agreement has the words in it that set forth the intent of the parties when they signed the agreement that they were going to abide by what the agreement called for. Even though the word assets is not there, it does provide enough with the other paragraphs that the terms of the operating agreement are clear and they control what the determination and what amount the member is supposed to receive. And this is what the parties agreed to when they signed the agreement. So, the motion in limine to exclude the evidence outside of that will be granted.

Relator now seeks review of the trial court's written order, granting the motion, and requests expedited consideration, preferably by July 17, as this matter is set for trial on August 2-3, 2017, as a second setting, and, if not heard then, as a first setting on August 31 and September 1, 2017.

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933 (citing La.Code Civ.P. arts. 2087 and 2201 ). A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878 (La.1981).

Under La.Code Evid. art. 402, "[a]ll relevant evidence is admissible," and "[e]vidence which is not relevant is not admissible." Pursuant to this scheme, "the normal criterion for the admissibility of evidence is simply that it be relevant." La.Code Evid. art. 402, comment (c). " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La.Code Evid. art. 401. A party may seek a pre-trial ruling on the admissibility of evidence through the use of a motion in limine. Because this motion presents an evidentiary issue, the trial court is granted great discretion, and its ruling should not be disturbed absent a showing of a clear abuse of discretion. Heller v. Nobel Ins. Group , 00-261 (La. 2/2/00), 753 So.2d 841.

"Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code 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 parties' intent, and courts must enforce the contract as written. In such circumstances, the question of contractual interpretation is answered purely as a matter of law, as is the determination of whether a contract is ambiguous or not. Sims v. Mulhearn Funeral Home, Inc. , 07-54 (La. 5/22/07), 956 So.2d 583. "However, if a court determines as a matter of law that a contract is ambiguous, then extrinsic (parol) evidence may be used to determine the true intent of the parties, and determining the intent of the parties becomes, in part, a question of fact." LFI Fort Pierce, Inc. v. Acme Steel Bldgs., Inc. , 16-71, p. 7 (La.App. 3 Cir. 8/17/16), 200 So.3d 939, 946, writ denied , 16-1684 (La. 11/29/16), 210 So.3d 804. Ambiguity as to intent arises when the contract lacks a provision bearing on that issue, its terms are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. Campbell v. Melton , 01-2578 (La. 5/14/02), 817 So.2d 69.

Relator asserts the trial court erred by ruling on a motion in limine that determined the meaning of an ambiguous provision of the Operating Agreement, specifically its interpretation of the grammatically incorrect "Company's," without permitting or considering evidence that would clarify the ambiguity. In reaching its decision, the trial court, according to Relator, endeavored to interpret the contract as well as the intent of the parties, ultimately concluding that the word "assets" was inadvertently left out. However, Relator advances that its interpretation of the contract-reading out the apostrophe "s" as a typographical error-is equally reasonable, which presents an ambiguity in the contract, raising a question of fact that should have been preserved for trial. Therefore, the trial court abused its discretion in ruling on the "intent of the parties" and "what the parties agreed to when they signed the agreement" despite those issues not being properly before the court and, more importantly, despite Relator not being able to present its evidence as to intent.

Moreover, because the contract is disputed and subject to more than one reasonable interpretation, Relator asserts that the excluded extrinsic evidence is relevant under La.Code Evid. arts. 401 and 402. It further argues that limiting evidence solely to the value of the Company's assets without considering the value of the Company and the extent of its debts and obligations would also be improper in light of: (1) the extensive discussion of the "income approach" to valuation by plaintiff's appraisal expert, which requires a full review of the Company's financial condition, and (2) La.R.S. 12:1327, which prohibits distributions if an LLC cannot pay its debts.

In opposition, plaintiff notes at the outset that Relator can proffer its evidence to complete the record; as such, no harm arises from denying the present writ. Plaintiff next asserts that the evidence regarding the Company's value or membership value is not relevant because the formula to determine the "Death Purchase Price" does not provide for any discounts or any reductions for minority ownership, lack of marketability of the member's interest, or indebtedness of the Company. It simply provides for a purchase price to be determined by the application of a member's ownership percentage to the appraised value of the Company's assets. Therefore, any evidence deviating from that standard, such as the value of the "company membership interest," is irrelevant and immaterial. Plaintiff further argues that the only rational reading of the provision before the court is that the price is determined according to this method as the trial court found, whose finding was neither an abuse of authority nor a mistake of law. Simply put, the trial court found that the contract is unambiguous.

Intervenor, Red River Bank, filed a brief in support of the application in which it alleges that the trial court erred in granting what, effectively, was a motion for summary judgment on the factual issue of intent, which was not properly before the court. Essentially, the trial court found the contract ambiguous, added a word not found in the document, and then decided that, because it found the word was inadvertently left out, evidence related to the true value of the Company was inadmissible. Intervenor contends that this was clear legal error and an abuse of discretion as contract interpretation is fodder for a motion for summary judgment, but no such motion has been filed herein. Moreover, summary judgment would be inappropriate in the face of the ambiguous provision at issue. Intervenor further argues that even if the court had the authority to perform a contractual interpretation analysis, its analysis was still erroneous because, rather than consider parol evidence to determine the intent of the parties, the court unilaterally added the word "assets," substituting its interpretation for the intent of the parties. Intervenor also points out that, because plaintiff argues that Relator is contractually obligated to purchase Dr. Shaw's membership interest, Relator is the obligor in whose favor the obligation must be interpreted under La.Civ.Code art. 2057. Finally, Intervenor adopts and incorporates Relator's discussion on relevancy.

It is not disputed that the contractual provision at issue contains a grammatical error, i.e. , "Company's." Plaintiff advances an interpretation of the provision as merely an unintended omission of the word "assets." Relator and Intervenor argue that the apostrophe "s" is merely a typographical error. A motion in limine is a device developed in our jurisprudence to test the admissibility of evidence prior to trial as an extension of the trial court's gatekeeper function for which great deference is afforded. It is not intended to resolve issues of law, such as the contractual interpretation at issue, for which no discretion is granted and review is de novo. The limits of the motion in limine were exceeded in this case. The trial court determined the method by which the members agreed to calculate the "Death Purchase Price," and this, in turn, logically required the court to first interpret the grammatically incorrect "Company's," with the trial court ultimately finding that there was an inadvertent omission of the word "assets." Such a determination was not proper on a motion in limine. Therefore, we find that the trial court abused its discretion in granting the motion in limine.

WRIT GRANTED AND MADE PEREMPTORY.

      At the time of his passing, Dr. Shaw was "a direct owner of a 15 2/7th% [minority] interest in and to" the Company, which owned and operated a hotel and a convention center located at 2225 North MacArthur Drive and 2301 North MacArthur Drive, respectively.

      Section 10.5.1 (emphasis added) provided:
      Upon retirement or withdrawal, a retiring or withdrawing Member shall be entitled to receive such distributions, if any, to which such Member is then entitled under this Agreement, an amount equal to the appraised value of the Company's assets as of the Retirement Effective Date multiplied by the Ownership Interest percentage of the retiring or withdrawing Member (the "Retirement Price").
      Section 10.6.2 (emphasis added) provided:
      Upon involuntary termination, a terminated Member shall be entitled to receive such distributions, if any, to which such Member is then entitled under this Agreement, and an amount equal to the appraised value of the Company's assets as of the Retirement Effective Date multiplied by one-half of the Ownership Interest Percentage of such Member (the "Termination Price").
      Section 10.2.3 (emphasis added) provided:
      As used in this Section 10.2, the term "Bankruptcy Purchase Price" shall mean the lower of the appraised value or the net book value of the Company's assets on an accrual basis exclusive of accounts receivable multiplied by the Ownership Interest percentage of the Bankrupt Member.

      In support, Relator recites jurisprudence holding that summary judgment determining factual issues regarding intent of the parties in ambiguous contracts is rarely appropriate. See Carter v. BRMAP , 591 So.2d 1184 (La.App. 1 Cir. 1991).

      Citing Sec. Ctr. Prot. Servs., Inc. v. Lafayette Sec. & Elec. Sys., Inc. , 95-693 (La.App. 5 Cir. 1/17/96), 668 So.2d 1156, writ denied , 96-428 (La. 3/29/96), 670 So.2d 1217 (extrinsic evidence only admissible to resolve contractual ambiguity); Rabenhorst Funeral Home, Inc. v. Tessier , 95-1088 (La.App. 1 Cir. 5/10/96), 674 So.2d 1164 (court may look beyond original agreement to determine intent when contract is ambiguous).

      La.R.S. 12:1327(A) provides:
      A. No distribution shall be made if, after giving effect to the distribution:
      (1) The limited liability company would not be able to pay its debts as they become due in the usual course of business.
      (2) The limited liability company's total assets would be less than the sum of its total liabilities plus, unless the articles of organization or a written operating agreement provides otherwise, the amount that would be needed if the limited liability company were to be dissolved at the time of the distribution to satisfy the preferential rights of other members upon dissolution which are superior to the rights of the member receiving the distribution.
      (3) The authorization or payment thereof would be contrary to any restrictions contained in the articles of organization or a written operating agreement.

      According to Relator, the most recent unaudited financial statements indicated that the Company "was operating at a net loss of $596,913.44 and that the Company's total equity was a negative $567,746.66."

      Red River Bank intervened because Relator and its members entered into various security agreements with Red River Bank to secure the assets of the Company in favor of Red River Bank in connection with monies borrowed by the Company, "including a promissory note, multiple indebtedness mortgage, and a business loan agreement." Further all of the members, including Dr. Shaw, executed personal guaranties in relation to the Company's indebtedness. Should plaintiff succeed in this suit, Dr. Shaw's heirs could attempt to prime the guaranty executed by Dr. Shaw and, further, render the Company incapable of paying its indebtedness to Red River Bank.

      La.Civ.Code art. 2057 provides, in part: "In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation."


author: SAUNDERS, Judge.

text:
    LOUISIANA WORKERS' COMPENSATION CORPORATION v. INDUSTRIAL HELICOPTERS, LLC
    17-419
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 2017
    Kenneth H. Laborde, Brendan P. Doherty, Bradley J. Schwab, Gieger, Laborde & Laperouse, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, LA 70139-4800, (504) 561-0400 COUNSEL FOR DEFENDANT/APPLICANT: Industrial Helicopters, LLC
    Gregory E. Bodin, Christopher M. Vitenas, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Chase North Tower, 450 Laurel Street, 20th, Floor Baton Rouge, LA 70801, (225) 381-7000, COUNSEL FOR PLAINTIFF/RESPONDENT: Louisiana Workers' Compensation Corporation
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

Two applications seeking supervisory writs from judgments of the Office of Workers' Compensation (OWC), Parish of Lafayette, the Honorable Sharon Morrow presiding, have been filed in this matter, which has been before this Court on several previous occasions in an underlying tort litigation filed by Tommie Hebert (Hebert) and his wife against Industrial Helicopters, LLC (Industrial), among other defendants, for injuries Hebert sustained in a helicopter accident. See Hebert v. Richard , 10-1417 (La.App. 3 Cir. 7/6/11), 72 So.3d 892 ( Hebert I ); Hebert v. Richard , 15-8 (La.App. 3 Cir. 6/17/15), 166 So.3d 1265 ( Hebert II ), writs denied , 15-1390, 15-1391 (La. 10/2/15), 178 So.3d 991; Hebert v. Richard , 16-427 (La.App. 3 Cir. 11/2/16), 206 So.3d 251 ( Hebert III ), writ denied , 16-2058 (La. 1/9/17), 214 So.3d 870.

In the first writ application, docket number 17-419, Defendant/Plaintiff-in-Reconvention-Relator, Industrial, seeks supervisory writ from the OWC judgment, which granted summary judgment in favor of Plaintiff/Defendant-in-Reconvention, Louisiana Workers' Compensation Corporation (LWCC), Industrial's workers' compensation insurer, finding the doctrine of res judicata precluded relitigation of whether Hebert was in the course and scope of his employment with Industrial at the time of the accident.

In the second writ application, docket number 17-428, LWCC seeks review of the OWC judgment, which granted partial summary judgment in favor of Industrial, holding that coverage would be afforded to Industrial under LWCC's policy in the event it is determined that Hebert was in the course and scope of his employment with Game Management, Inc. (GMI), as a borrowed employee, at the time of his injury.

STATEMENT OF THE CASE

This matter arises out of an accident in which Hebert fell from a helicopter owned by Industrial while capturing whitetail deer using a deer-netting gun in Mexico on March 3, 2007. Industrial voluntarily began paying medical bills and issuing weekly checks to Hebert as workers' compensation benefits. LWCC denied coverage based on its determination that Hebert was not in the course and scope of his employment with Industrial at the time of the accident. Hebert and his wife sued, in tort, the owner and operator of the helicopter, Industrial, as well as GMI, a wildlife survey company. Both Industrial and GMI are owned by J. Oran Richard. As a defense, Industrial argued that (1) GMI was Hebert's special/borrowing employer who had borrowed Hebert from his general employer, Industrial, and (2) under La.R.S. 23:1031(C), both Industrial and GMI were solidarily liable for workers' compensation benefits and, therefore, immune from suit in tort. The trial court granted summary judgment in favor of Industrial on this issue. On appeal, this court reversed, explaining:

GMI is not a borrowing employer. Further, the control by Industrial in this case renders Industrial, but not GMI, liable for workers' compensation benefits and entitled to tort immunity if Mr. Hebert was in the course and scope of his employment with Industrial at the time of his accident. Industrial states that he was not.

Hebert I , 72 So.3d at 903. Following remand, the Heberts filed a motion for partial summary judgment, asserting no genuine issue of material fact existed pertaining to the issue of Industrial's immunity from tort liability, given Industrial judicially admitted Hebert's injuries did not occur in the course and scope of his employment with Industrial in multiple filings of record. The trial court denied the motion, and after trial, the jury found Hebert was in the course and scope of his employment with Industrial at the time of the accident, awarding $1,500,000.00 in special damages and $500,000.00 in general damages. On appeal, this court again reversed, finding, relevant herein, that (1) the statement made by Industrial constituted a "judicial confession" that Hebert was not in the course and scope of his employment with Industrial at the time of the accident and (2) after reviewing all of the admissible evidence, including Industrial's confession, "the evidence overwhelmingly establishes that Hebert was not in the course and scope of his employment with Industrial at the time of the accident." Hebert II , 166 So.3d at 1274, 1276. At this point, LWCC sought to intervene in the action, seeking to have its obligations under its workers' compensation policy resolved, but the trial court denied the motion. After remand, this court further concluded that Industrial was entitled to an offset for the $503,839.49 in workers' compensation benefits already paid "as it was not responsible for workers' compensation benefits since Mr. Hebert was not in the course and scope of his employment." Hebert III , 206 So.3d at 254. Industrial has taken full credit for the offset, but still seeks to recover the entire $503,839.49 from LWCC.

Meanwhile, LWCC filed a Petition for Declaratory Judgment in the OWC, seeking a declaration that no coverage was afforded under its policy issued to Industrial. Industrial filed a counterclaim seeking coverage under the policy, arguing Hebert was in the course and scope of his employment at the time of the accident, either directly with Industrial or as a borrowed employee.

Thereafter, LWCC filed its motion for summary judgment, seeking, in part, an order that this court's course and scope ruling was res judicata between the parties, precluding relitigation of this issue. Industrial opposed the motion, contending that res judicata is not applicable because this action and the Hebert action are not between the same parties. It also filed its own motion for partial summary judgment, seeking an order that coverage would be afforded under LWCC's policy in the event it is determined that Hebert was in the course and scope of his employment with either Industrial or with GMI as a borrowed employee at the time of the accident. In response, LWCC argued there was no way Industrial could be the lending employer because this court has already determined Hebert was not in the course and scope of his employment with Industrial at the time of the accident.

The OWC first heard LWCC's motion on March 3, 2017. Finding it was bound by this court's ruling on "direct" employment, the OWC granted summary judgment on the res judicata issue from the bench, noting:

And you make good arguments, [defense counsel]; I understand the arguments. I see where you're coming from. It just goes against the grain for me to say, "Well, I disagree with the Third Circuit holding here." It's kind of like a child and a parent; you don't tell your parent you disagree. You wait for the parent to maybe change its mind or take a different approach. So I'm not saying that your argument doesn't have merit. It's just I do feel bound by that finding.

In a separate hearing held on March 22, 2017, the OWC granted partial summary judgment in favor of Industrial, finding, on the very narrow issue of general employment, "that if it is determined that Industrial was a general employer and Game Management, Inc. was a special employer of Tommie Hebert at the time of his accident, then coverage for worker's compensation benefits will be payable under the policy LWCC issued to Industrial." Industrial now seeks review of the OWC's grant of summary judgment on the issue of res judicata (17-419), and LWCC seeks review of the OWC's grant of partial summary judgment on the borrowing employer/general employer issue (17-428). We have issued a writ granting LWCC's writ application on 17-428 which reversed the OWC's grant of partial summary judgment. Further, in writ 17-428, we have dismissed Industrial's claim in this matter.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), Comments-2005, which provides, in pertinent part, "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs." "A court of appeal has plenary power to exercise supervisory jurisdiction over [trial] courts and may do so at any time, according to the discretion of the court." Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc. , 396 So.2d 878, 878 (La.1981) (per curiam). When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Id.

ON THE MERITS

We dismissed Industrial's claim in writ 17-428. That dismissal renders this writ application moot.

DISPOSITION

WRIT DENIED. This writ application is moot.

      Louisiana Revised Statutes 23:1031(C) provides:
      In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.


author: KEATY, Judge.

text:
    Kayla ARCENEAUX v. LAFAYETTE GENERAL MEDICAL CENTER, et al.
    17-516
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 2017
    Nicholas Gachassin, III, Holly McKay Descant, Gachassin Law Firm, Post Office Box 80369, Lafayette, Louisiana 70598-0369, (337) 235-4576, Counsel for Defendant/Applicant: Lafayette General Medical Center
    Patrick D. Magee, Voorhies & Labbe, Post Office Box 3527, Lafayette, Louisiana 70502-3527, (337) 232-9700, Counsel for Defendant: Bobby Nevils, M.D.
    Harold D. Register, III, Attorney at Law, Post Office Box 80214, Lafayette, Louisiana 70598-0214, (337) 981-6644, Counsel for Plaintiff/Respondent: Kayla Arceneaux
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

In this medical malpractice case, defendant-relator, Lafayette General Medical Center (LGMC or the hospital), filed a motion for summary judgment seeking to have the claims against it by plaintiff-respondent, Kayla Arceneaux, dismissed with prejudice on the basis that she failed to present any evidence to establish that it breached the applicable standard of care or that any alleged breach caused her damages. At the conclusion of the hearing on LGMC's motion, the trial court granted plaintiff a ninety-day extension to produce an expert and disclose the expert's opinion to it and the hospital. A judgment memorializing the trial court's ruling was signed on May 15, 2017, and LGMC seeks supervisory writs from that judgment. For the following reasons, we grant the writ, reverse the trial court's judgment, and remand.

STATEMENT OF THE CASE

The plaintiff was admitted into LGMC on January 13, 2014, when she was approximately thirty to thirty-one weeks pregnant. According to the petition, plaintiff's obstetrician/gynecologist, Dr. Bobby Nevils, wanted hourly fetal monitoring. Over the course of the next few days, the fetal monitor was removed; however, there is a dispute concerning whether this was done at plaintiff's request. By January 15, 2014, fetal heart tones were no longer detected. The next day, plaintiff delivered a stillborn male with hydrocephalus, commonly known as water on the brain. Within several days of the delivery, plaintiff began to complain that she was unable to feel her legs. Two or three times during her care, plaintiff fell to the floor as she was being assisted out of bed by nurses and/or aides.

On December 30, 2014, plaintiff filed a request for a medical review panel (MRP), which rendered a unanimous opinion finding that neither LGMC nor Dr. Nevils failed to meet the applicable standard of care. Plaintiff filed the instant suit on May 3, 2016. According to plaintiff's petition, she "suffered a disc protrusion at L2-L3" and "incurred extensive medical expenses" "[a]s a result of the negligent care of the nurses and/or hospital personnel." LGMC answered the suit, joining therewith an exception of vagueness and ambiguity and a motion to strike portions of plaintiff's petition. As evidenced in a Consent Judgment signed on July 25, 2016, plaintiff agreed to the entry of an order granting LGMC's exception and motion. On January 18, 2017, LGMC filed a motion for summary judgment on the ground that plaintiff had no experts to establish the standard of care or breach thereof so as to meet her burden of proof. In support of its motion, LGMC filed the MRP opinion and reasons. Due to the fact that discovery remained outstanding at the time, plaintiff requested and the trial court signed an Unopposed Motion to Continue resetting the hearing on LGMC's motion from March 6, 2017, to May 1, 2017. As to the merits of LGMC's motion, Plaintiff argued that LGMC's malpractice was so obvious that a layperson could infer negligence without expert testimony. Four exhibits were attached to plaintiff's opposition, consisting of affidavits executed by her and her mother, progress notes from her stay at LGMC, and two LGMC Patient Safety Reports concerning two falls that occurred during her hospital stay.

At the May 1, 2017 hearing, the trial court stated:

I'm not even going to recite the facts of this .... There's no doubt in the world you cannot survive a medical malpractice case without an expert. Either you get an expert or I dismiss the case. I'm not even going to talk about it. You can't have a claimant say this happened to me, it's negligence. That doesn't work in medical malpractice. So I've got nothing else to say.
....
It's causation that you're having a problem with .... It's not whether the baby didn't survive. It's causation. You have to bring the cause to the facts.
....
You say it was because the fetal heart monitor wasn't attached, but nobody else said that. I don't know that. That's you and your client. You're not an expert. You can't tell me, or the trier of the fact, that.
....
The whole point is, you have to have an expert that says the bulge results from a fall, as opposed to being scoliosis, as opposed to being spondylolisthesis, as opposed to being something that's [ ] hereditary. You say there was no results prior to that. So you need an expert to say that when someone falls to a floor from a three-foot point of view or whatever, that that could cause someone to have a bulging disc. That's what the requirements of the medical malpractice are. I didn't make those.

Rather than ruling on the motion for summary judgment, however, the trial court gave plaintiff ninety days to retain an expert, warning that her case against LGMC would be dismissed should she fail to do so. LGMC seeks review of the trial court's judgment which granted plaintiff an extension that she did not request. LGMC asks this court to reverse the trial court judgment and render a decision granting summary judgment in its favor.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), which provides, in pertinent part, that "[i]rreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs."

"A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of the court." Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc ., 396 So.2d 878, 878 (La.1981) (per curiam). "This general policy, however, should not be applied mechanically." Id. Thus, when the trial court's ruling:

is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

Id. Because reversal of the trial court's ruling could result in dismissal of plaintiff's claims against it, we grant LGMC's request for supervisory writs.

DISCUSSION

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant, (2) the defendant breached that standard of care, and (3) a causal connection between the breach and the resulting injury. See La.R.S. 9:2794(A). Generally, expert testimony is required to establish the applicable standard of care and breach thereof, except where the malpractice is so obvious that a layperson can infer negligence without the guidance of expert testimony, such as where a physician amputates the wrong arm or leaves a sponge inside a patient's body. Pfiffner v. Correa , 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228.

Pursuant to La.Code Civ.P. art. 966(A)(1), a defendant may move for summary judgment "at any time." Where the defendant will not bear the burden of proof at trial, it need only "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim" to meet its burden of proof on the motion. La.Code Civ.P. art. 966(D)(1). "Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion." Samaha v. Rau , 07-1726, p. 5 (La. 2/26/08), 977 So.2d 880, 883 (citing Wright v. La. Power & Light, 06-1181, p. 16 (La. 3/9/07), 951 So.2d 1058, 1070 ).

The courts of this state have routinely held that a motion for summary judgment is an appropriate procedural vehicle to dismiss a defendant in a medical malpractice suit where a plaintiff fails to meet her burden of proof. See, e.g. , Shultz v. Guoth , 10,343 (La. 1/19/11), 57 So.3d 1002 (reversing trial and appellate rulings that defendant was not entitled to summary judgment where plaintiff failed to present evidence that defendants breached the standard of care or caused her injury); Samaha , 977 So.2d 880 ; Orea v. Brannan , 30,628 (La.App. 2 Cir. 6/24/98), 715 So.2d 108 (affirming summary judgment where plaintiffs had opportunity to file affidavits or other evidence establishing a genuine issue of material fact concerning defendants' breach of the applicable standard of care, but failed to do so).

"For good cause shown, the court may order a continuance of the hearing [on the motion for summary judgment]." La.Code Civ.P. art. 966(C)(2). "The trial court may take into consideration such factors as diligence, good faith, reasonable grounds, fairness to both parties and the need for the orderly administration of justice." Rogers v. Hilltop Ret. & Rehab. Ctr. , 13-867, p. 4 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053, 1058.

[I]t is within the trial court's discretion to issue summary judgment where discovery is not completed. Peterson v. City of Tallulah, 43,197 (La.App. 2 Cir. 4/23/08), 981 So.2d 192. However, the parties must be given "a fair opportunity to present their claims and, unless a plaintiff shows probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact ." Id. at 195.

Id. at 1058 (emphasis added). In that vein, the supreme court noted well over a century ago, in State v. Posey , 17 La.Ann. 252, 253 (La.1865), that "it is not in the discretion of the court to grant a continuance of a case, except [when] a party applies for it, and alleges sufficient cause to justify the same." To the present date, the notion espoused in Posey remains good law. "The trial court's decision whether to grant or deny a continuance is reviewed for abuse of discretion." Rogers , 153 So.3d at 1058.

Citing La.Code Civ.P. art. 966(F), LGMC argues that the trial court abused its discretion in allowing plaintiff an extension of time to obtain an expert because no such request was before the court. LGMC asserts that, in the absence of such a request, there can be no good cause for granting a continuance in this matter. Accordingly, LGMC submits that the trial court should have ruled on the merits of its motion based on the documents in the record at the time. LGMC points out that when its motion came for hearing, plaintiff had over two years since its alleged malpractice to produce an expert, and its motion had already been continued once to allow the completion of discovery. Moreover, LGMC argues that plaintiff had the option to obtain an expert or request more time to do so. Instead, plaintiff chose to submit self-serving affidavits in support of her argument that LGMC's negligence was so obvious that she did not need an expert to prevail on her claims against it, an argument that the trial court clearly rejected as shown in the remarks that it made at the May 1, 2017 hearing.

LGMC directs this court's attention to three per curiam decisions rendered by the Louisiana Supreme Court involving motions for summary judgment in medical malpractice cases where the plaintiffs attempted to present expert opinions after expiration of the deadlines found in La.Code Civ.P. art. 966(B). In Newsome v. Homer Memorial Medical Center , 10-564 (La. 4/9/10), 32 So.3d 800, the trial court granted the plaintiff's motion to continue a hearing on the defendants' motion for summary judgment to allow it to consider an expert's affidavit that plaintiff filed after the deadline contained in La.Code Civ.P. art. 966(B) had passed. When plaintiff filed the motion to continue a mere seven days before the scheduled hearing, it had been five years since the alleged malpractice occurred, nine months since the MRP had rendered a unanimous decision in favor of the defendants, and the defendants had already postponed the hearing once before upon the plaintiff's agreement that the matter would not be continued again. Given the circumstances, the supreme court found that the trial court abused its discretion in granting the continuance. As a result, it reversed and remanded the matter to the trial court ordering it "to conduct a hearing on defendants' motion for summary judgment based on the pleadings, depositions, answers to interrogatories, and admissions on file on [the date of the scheduled hearing], together with any affidavits served at least eight days prior to that date." Newsome , 32 So.3d at 802-03.

In Guillory v. Chapman , 10-1370 (La. 9/24/10), 44 So.3d 272, the supreme court reversed this court's ruling and reinstated the trial court's grant of summary judgment in favor of the defendants upon its finding of no abuse of discretion in trial court's exclusion of a late-filed expert affidavit pursuant to its decision "to follow the mandatory language of La.Code Civ.P. art. 966(B)(2)." Id. In doing so, the supreme court noted that "the case was six years old[,] and the plaintiff was aware of the expert for years." Id.

More recently, in Sims v. Hawkins-Sheppard , 11-678 (La. 7/1/11), 65 So.3d 154, the trial court granted summary judgment in favor of the defendants. The hearing on the defendants' motion had previously been continued for two months at plaintiff's counsel's request. Prior to the date of the reset hearing, plaintiff's counsel opposed the motion, attaching an unsigned affidavit from a doctor. At the hearing, after her counsel failed to produce a signed affidavit, the plaintiff told the trial court of her desire to fire her attorney and secure new representation. On appeal, the second circuit reversed, finding that:

[T]he trial court abused its discretion under La. C.C.P. art. 966(B) and the interpreting case law. The court of appeal found the trial court should have allowed the plaintiff a reasonable amount of time to find new counsel and secure the signature of a medical expert on an opposing affidavit rather than cutting off the plaintiff at the summary judgment phase. The court of appeal found the plaintiff had been misled and deceived by her former counsel.

Id. at 156. The supreme court reversed and remanded upon its finding that the defendants had proved "their entitlement to summary judgment" and that the plaintiff, who herself had "[a]pparently ... known of th[e] doctor's willingness to serve as an expert witness for some time," had not shown " 'good cause' under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit." Id. at 156-57.

LGMC filed this writ application on June 2, 2017. In plaintiff's June 29, 2017 response to the writ, she continues to maintain her position that no expert testimony is necessary to prevail on her claims against LGMC.

According to the transcript of the May 1, 2017 hearing, before entertaining any arguments from the parties, the trial court announced, "[t]here's no doubt in the world [plaintiff] cannot survive a medical malpractice case without an expert. Either you get an expert or I dismiss the case." Thus, although the trial court did not expressly state it found that LGMC proved its entitlement to summary judgment, the above statement reveals the trial court's implicit finding that LGMC established plaintiff could not satisfy her burden of proof at trial, particularly on the issue of causation, without medical testimony. Under La.Code Civ.P. art. 966(D)(1), the burden should have then shifted to plaintiff to rebut LGMC's expert evidence that it did not breach the standard of care. Plaintiff did not produce any expert evidence, choosing instead to rely solely on her own affidavit and her mother's affidavit. At that point, LGMC was arguably entitled to summary judgment in its favor as a matter of law under La.Code Civ.P. art. 966(A)(2). Instead of ruling on LGMC's motion, however, the trial court continued the summary judgment hearing on its own motion, apparently finding that good cause existed to extend to plaintiff an additional opportunity to find an expert to support her claims.

The trial court's ruling effectively pits two of the summary judgment provisions against each other: the mandatory requirement in La.Code Civ.P. art. 966(A)(3) (emphasis added) that "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" versus the discretionary authority in Subsection C(2) (emphasis added), which provides that "the court may order a continuance of the hearing." Moreover, as the hospital pointed out, a trial court can render summary judgment only as to the issues presented in the motion then being considered. See La.Code Civ.P. art. 966(F). Here, the trial court rendered judgment, although notably not summary judgment, on an issue not before the court, i.e., a request for an extension of time. Plaintiff rested her opposition to LGMC's motion for summary judgment on the obvious negligence exception to the general evidentiary rule requiring expert testimony in medical malpractice cases. She did not seek a continuance of the hearing for the purpose of obtaining an expert.

"A trial judge has wide discretion in the control of his docket, in case management and in determining whether a motion for continuance should be granted." Jackson v. Royal Ins. Co ., 97-723, p. 3 (La.App. 3 Cir. 12/17/97), 704 So.2d 424, 426. On the other hand, the summary judgment procedure "is favored and shall be construed to accomplish" the ends for which it was enacted, i.e., "to secure the just, speedy, and inexpensive determination of every action." La.Code Civ.P. art. 966(A)(2). Undeniably, this writ presents a close call between the vast discretion granted to a trial court to manage its docket and the speedy resolution that the summary judgment procedure was enacted to ensure. Nevertheless, in light of the trial court's rejection of the plaintiff's argument that LGMC's negligence was so obvious that she did not need to present expert testimony to prevail against it coupled with the fact that plaintiff did not request a continuance or show that she would suffer "probable injustice" should the matter "not be delayed," we conclude that the trial court abused its discretion in granting plaintiff an additional ninety days to retain an expert. Rogers , 153 So.3d at 1058.

DECREE

For the foregoing reasons, the May 15, 2017 judgment is reversed and this matter is remanded to the trial court for a hearing on LGMC's motion for summary judgment based on the "pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions" filed in support of or in opposition to the motion as of May 1, 2017.

WRIT GRANTED; JUDGMENT REVERSED; REMANDED.

      Dr. Nevils was also named as a defendant. While the complained-of-judgment indicates that counsel for Dr. Nevils was present at the hearing on LGMC's motion for summary judgment, we are unable to determine from LGMC's writ application the status of plaintiff's claims against him.

      LGMC also attached to its motion copies of its certificate of enrollment in the Louisiana Patient's Compensation Fund, plaintiff's petition, and its answer to the petition.

      Louisiana Code of Civil Procedure Article 966(F) provides: "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."

      At the time, La.Code Civ.P. art. 966(B) required that opposing affidavits be served at least eight days prior to the hearing; however, the article now requires that such documents be served not less than fifteen days prior to the hearing.