author: GRAVOIS, J.

text:
    Anna LANDRY v. LESON CHEVROLET COMPANY, INC., and Western Heritage Insurance Company
    NO. 17-CA-665
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ANNA LANDRY: David L. Browne, Cynthia M. Cimino
    COUNSEL FOR DEFENDANT/APPELLEE, LESON CHEVROLET COMPANY, INC., AND WESTERN HERITAGE INSURANCE COMPANY: Doris T. Bobadilla, John C. Getty
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

In this slip and fall case, plaintiff/appellant, Mrs. Anna Landry, appeals a summary judgment granted in favor of defendants, Leson Chevrolet Company, Inc. ("Leson"), and its liability insurer, Western Heritage Insurance Company (collectively "defendants"), which judgment dismissed her claims against defendants with prejudice. For the following reasons, we find that genuine issues of material fact remain in this matter that preclude the granting of summary judgment in favor of defendants at this time. We accordingly reverse the judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On the morning of April 13, 2015, Mrs. Landry brought her vehicle, a Suburban, to Leson Chevrolet in Harvey, Louisiana, for scheduled service. In her deposition, Mrs. Landry testified that she lived about thirty minutes from Leson and that it had started raining while she was on the way there. When she arrived at Leson's service department, which she had used regularly for her vehicle's service in the past, she was directed by a Leson employee to park her vehicle in one of the four service bays, which had ceramic floors and which were covered and protected from the elements. The bays were described as four distinct driveways into which customers would pull their cars and be met by a service agent. When Mrs. Landry exited her vehicle under the covered service bay, she stepped out on to the ceramic floor and immediately fell, landing on her bottom. Mrs. Landry stated that she was wearing flip flops at the time. She stated that she always exited her vehicle in the same manner, by turning sideways to the left and placing her feet on the running board of her vehicle to aid in her descent.

After being helped to her feet by a Leson employee, Mrs. Landry went with the service technician, Shane Lambert, to his cubicle, where he wrote up her service ticket and secured her "loaner" car from the dealership, after which she drove straight to the emergency room because she was in great pain. At the emergency room, she was examined and diagnosed with a broken tailbone. She returned to Leson two days later, requesting that they author an incident report regarding her fall in the service bay. On that date, Mrs. Landry met with Mr. Timothy Colson, the service department manager, who was not present when she had fallen two days earlier. After speaking with Mrs. Landry and two other Leson employees who were present on the day of her fall, Mr. Colson prepared an incident report of Mrs. Landry's fall.

In her petition, filed on April 12, 2016, Mrs. Landry alleged that she slipped and fell due to slick and wet conditions of the floor of Leson's dealership due to rainwater that had accumulated on the service bay floor. She alleged that the excessive water and/or puddle on the floor where she fell constituted a hazardous and unreasonably unsafe condition for dealership patrons like her that was reasonably foreseeable to Leson, about which Leson had actual or constructive notice, and about which Leson failed to exercise reasonable care to remedy. She further alleged that Leson did not provide any warning to its customers of the slick and wet conditions of the floor of its dealership. She asserted that she was entitled to damages from defendants pursuant to the general negligence principles of La. C.C. arts. 2315 and 2316, and the premises liability principles under La. C.C. arts. 2317 and 2317.1.

Defendants moved for summary judgment on January 20, 2017, arguing that they are not liable for any of Mrs. Landry's injuries because of the open and obvious condition that she observed and of which she was aware prior to her alleged slip and fall. They also argued that Mrs. Landry cannot meet her burden that the alleged condition of the service bay at the time of the incident constituted an unreasonable risk of harm from which Leson owed Mrs. Landry a duty of protection. Additionally, they argued that Mrs. Landry cannot prove that Leson had created the condition or had actual or constructive notice of the condition.

In their motion for summary judgment, defendants argued that Mrs. Landry's claim for damages is governed by La. R.S. 9:2800.6. Defendants argued that the evidence produced in discovery showed that Mrs. Landry was aware that the floors were generally wet (and that some of the rainwater came from her car) and that she agreed that the generally wet condition of the floor was "open and obvious." Accordingly, they argued that under La. R.S. 9:2800.6, they owed no duty to Mrs. Landry, and that she could not meet her evidentiary burden of proof at trial. Their motion also pointed out that Mrs. Landry could not establish the temporal element of La. R.S. 9:2800.6, as she could not state exactly what was on the floor where she specifically fell, nor how long it might have been there, given her deposition testimony that she did not look at the floor prior to stepping out of her vehicle. Accordingly, they argued, Mrs. Landry did not present any evidence that Leson had actual or constructive notice of the alleged condition.

Mrs. Landry opposed the motion for summary judgment, arguing that genuine issues of material fact remained and that defendants had not borne their statutory burden of proof. Citing the deposition testimony of several Leson employees, Mrs. Landry argued in her opposition that their testimonies established that Leson had no policies or procedures in place for maintaining the service bay floor hazard-free, that Leson did not exercise reasonable care to address the "hazardous condition" of its floor that was "extremely wet from rain," and that Leson did nothing to warn its customers of the hazardous condition that morning. She also argued that Leson could not be exonerated because the hazardous condition was "open and obvious," because material issues of fact remained, particularly about Leson's rainy day procedures. Finally, she argued that material issues of fact remained regarding whether Leson had actual or constructive notice of the condition.

The motion for summary judgment was heard on September 13, 2017, whereupon the trial court took the matter under advisement. On September 15, 2017, the trial court issued a written judgment granting defendants' motion for summary judgment, dismissing Mrs. Landry's case with prejudice. The trial court also issued written reasons for judgment that same day. Mrs. Landry's timely appeal followed.

On appeal, Mrs. Landry argues that the trial court erred in applying an "inapplicable" burden of proof, namely that she failed to put forth "concrete" evidence in support of her claim. She also argues that the trial court erred when it ignored direct and circumstantial evidence of the unreasonably dangerous condition-the rain-slickened ceramic floor-upon which she slipped. Alternatively, she argues that the trial court erred in otherwise failing to find that genuine issues of material fact existed, thus precluding the granting of defendants' motion for summary judgment.

ANALYSIS

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. C.C.P. art. 966(D)(1).

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co. , 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852. A decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Bach v. Bd. of River Port Pilot Comm'rs , 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355, 362.

The parties argued below and before this Court that the substantive law applicable to this case is La. R.S. 9:2800.6, which provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

As this Court recently stated in Hazelett v. Louisiana-1 Gaming , 16-297 (La. App. 5 Cir. 12/21/16), 210 So.3d 447, 451-52 :

... [I]n a slip and fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Burns v. Sedgwick Claims Mgmt. Servs. , 14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 152 ; Sheffie v. Wal-Mart Louisiana LLC , 13-792 (La. App. 5 Cir. 2/26/14), 134 So.3d 80, 83-84, writ denied , 14-0881 (La. 6/20/14), 141 So.3d 813. The failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 is fatal to a plaintiff's cause of action. Foster v. Pinnacle Entm't, Inc. , 16-8 (La. App. 5 Cir. 4/27/16), 193 So.3d 288, 295 ; Upton v. Rouse's Enter. , LLC, 15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, 1199, writ denied , 16-0580 (La. 5/13/16), 191 So.3d 1057. The merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. White v. Wal-Mart Stores, Inc. , 97-0393 (La. 9/9/97), 699 So.2d 1081, 1086. There is no provision in La. R.S. 9:2800.6 that permits a shifting of the burden to the merchant. Id.
To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe's , 14-288 (La. 10/15/14), 171 So.3d 851, 856.
In addition to proving that the condition presented an unreasonable risk of harm that was reasonably foreseeable, the plaintiff must also prove that the merchant either created or had actual or constructive notice of the condition which caused the damage prior to the occurrence. Upton , 186 So.3d at 1200. When constructive notice is at issue, the claimant must come forward with positive evidence showing that the damage causing condition existed for some period of time, and that such time was sufficient to place the merchant on notice of its existence. Id. , at 1200 (citing White v. Wal-Mart Stores, Inc. , 97-0393 (La. 9/9/97), 699 So.2d 1081, 1082 ).
Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Sears v. Home Depot, USA, Inc. , 06-201 (La. App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied , 06-2747 (La. 1/26/07), 948 So.2d 168. Even if contained in a deposition, such inferences, allegations, and speculation are not sufficient to satisfy the opponent's burden of proof. Id.

Under La. R.S. 9:2800.6, a plaintiff has the burden of proving the existence of a condition, that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Because a plaintiff must prove each element under La. R.S. 9:2800.6, the failure to prove any element is fatal to the plaintiff's cause of action. Burns v. Sedgwick Claims Mgmt. Servs. , 14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 153.

FIRST ASSIGNMENT OF ERROR

Erroneous legal standard

Mrs. Landry first argues that the trial court committed an error of law by requiring her to meet a heightened burden of proof, rather than the preponderance of the evidence standard required by La. R.S. 9:2800.6. She bases her argument on the trial judge's statement, in his written reasons for judgment, that she had "put forth no concrete evidence to support the claim that she fell because of an unreasonably dangerous condition caused by rainwater on the ground where she stepped." (Emphasis added.)

A plaintiff's burden of proof in a negligence case is preponderance of the evidence, which means that the plaintiff must establish each required element of her claim as "more likely than not." In a summary judgment proceeding, La. C.C.P. art. 966 requires that a plaintiff, as the non-mover who nonetheless has the burden of proof at a trial, must come forward with factual evidence that she will be able to meet her statutory burden of proof, following the mover's having pointed out that there is an absence of factual support for one or more elements essential to the plaintiff's claim.

Upon de novo review, we find that the trial court's use of the adjective "concrete" to describe the noun "evidence" in its written reasons for judgment did not signify that the trial court misunderstood the legal burden of proof applicable to Mrs. Landry's case or that he employed a more stringent standard of proof required by law and specifically La. R.S. 9:2800.6. This assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR

Burden of proof

Next, Mrs. Landry argues that she presented "sufficient" evidence of the unreasonably dangerous condition of Leson's service bay floor so as to preclude the granting of summary judgment in Leson's favor. Mrs. Landry cites the testimonies of herself and the three Leson employees who gave depositions, all of whom testified that it was raining on the morning Mrs. Landry came to Leson, that the tile floor in the service bay was wet, and that other vehicles present in the bay when Mrs. Landry arrived were wet from the rain. She argues that Leson had no rainy day policies in place to address water on the floor. She also argues that the presence of water on the service floor bay was not speculation. Alternatively, Mrs. Landry argues that the deposition testimonies establish that genuine issues of material fact remain.

In her deposition, Mrs. Landry testified that it began to rain as she was en route to Leson from her home in Marrero, an approximately 30-minute drive. She arrived before 9:00 a.m. It was still raining as she arrived at Leson, and the rain was moderate (not light or extremely heavy), according to her testimony. She said that having observed the rain, she knew "in her mind" that there would be wetness inside the service bay. However, also "in her mind," she testified, the presence of water on tile was not slippery, because in the past she has had to walk through water and it has not been slippery. She testified that she did not see any "wet floor" signs in the service bay that day.

Mrs. Landry pulled into the second lane of the service bay, as directed by service personnel. In her deposition, she stated that water appeared to be dripping off of cars entering the service bay, including her own. She agreed that the dripped water off of the other cars was "open and obvious" to her. She also testified, however, that she did not look at the floor of the bay immediately outside her own car door prior to stepping down out of her vehicle, so she did not know if water was already on the tile floor or if some dripped off of her own car, although she agreed that if water were present there, some of it may have dripped from her car. She assumed that she slipped on some water, because her pants were wet when she got up.

The "Slip and Fall Incident Report," authored by Mr. Colson two days after the incident at Mrs. Landry's request (and which Mrs. Landry signed), was admittedly compiled from information supplied by Mr. Paul Sposito, the fixed operations manager at Leson, Mr. Lambert, and Mrs. Landry, as Mr. Colson was not present on the day of the incident. The incident was described as "The service drive was extremely wet from heavy rain fall." It describes the weather conditions as "raining-severe," and the condition of the service drive "[w]alking surface conditions" as "wet from rain."

Paul Sposito testified in deposition that though he was working on the day that Mrs. Landry fell, he was not present in the service bay when she fell. He never spoke to Mrs. Landry and did not speak to anyone who saw her fall. He was told that the incident occurred in Lane 2 of the service bay. He agreed that it was raining that day, and that it was reasonable to conclude that the service drive floor would have had some water on it that had dripped from entering vehicles.

The testimony of Mrs. Landry and the Leson employees established the facts that it was raining and that some water was present on various areas of the floor of the service bay. Mrs. Landry testified that she assumed there was water on the floor outside of her vehicle because her pants were wet after she fell. However, she did not look at the floor before she stepped out of her vehicle, and could not definitely say that water was on the floor. She also agreed that the water could have come from her own car, which had just been out in the rain. Shane Lambert testified that he walked over to Mrs. Landry's vehicle without incident, immediately prior to the fall, but he did not witness the fall. However, the slip and fall report, authored by Mr. Colson from information supplied by Mr. Lambert and Mr. Sposito, describes the weather conditions as "heavy rain" and the service drive as "extremely wet" from rain. Furthermore, Mr. Lambert and Mr. Sposito testified in their depositions that it would be reasonable to conclude that given the weather conditions, there would have been water on the floor of the service bay, particularly where it might have dripped off of cars. In order to determine whether or not the area where Mrs. Landry fell was wet, and whether Leson had the required notice, the trier of fact would have to weigh the competing evidence, which is not permitted on a motion for summary judgment. Boros v. Lobell , 15-55 (La. App. 5 Cir. 9/23/15), 176 So.3d 689, 693.

Considering the foregoing, upon de novo review, we find that the evidence presented at the hearing establishes that genuine issues of material fact remain at this time as to the existence of a hazardous condition on the floor, including the nature and degree of wetness on the floor, and whether Leson had the requisite notice thereof. The trial court accordingly erred in granting the motion for summary judgment.

THIRD ASSIGNMENT OF ERROR

Remaining issues of material fact

In her third assignment of error, Mrs. Landry argues, alternatively, that genuine issues of material fact remain regarding Leson's rainy day procedures that preclude summary judgment. In brief, she argues that none of Leson's employees could provide any specifics as to what measures were taken on the morning of April 13, 2015 either to correct the wet condition of the service bay's ceramic tile floor or to warn patrons like Mrs. Landry of the slippery condition.

The record evidence showed that the service area opened for business at 7:30 a.m. and that Mrs. Landry arrived somewhere around 9:00 a.m. She testified that it began raining as she was on her way from her home in Marrero to Leson, located in Harvey, about 20-30 minutes from her home. There was no testimony regarding how long it had been raining at Leson when Mrs. Landry arrived. The testimony was clear, however, that Leson did have rainy day procedures, albeit unwritten, to deal with rainwater on the floor, as well as other types of spills.

Mr. Colson, Mr. Sposito, and Mr. Lambert testified via depositions regarding Leson's procedures to keep the floor in the service bay clean, and also testified specifically regarding "rainy day" procedures. Mr. Lambert, who greeted Mrs. Landry at her vehicle when she pulled up in the service bay that morning and wrote down her service request, testified that the porters are generally responsible for maintenance and cleaning in the service bays, including the floors, although every employee is responsible for inspecting for hazards. Porters are responsible for putting out the "wet floor signs" when it rains, although any employee can also do that. He did not recall if the signs were out that day. He said that the porters had a special machine, which was nicknamed the "Zamboni," that was used regularly as needed to clean the service bay floor, mop up any spills, and degrease the floors. He said that he regularly saw the porters clean the floors on rainy days, but he did not remember if the porters had used the machine or mops on that particular day. He remembered that he walked towards Mrs. Landry's car to greet her without incident. He did not know how long it had rained that day, or if it had rained the day before.

Mr. Lambert testified that he was unware if the rainy day procedures were written down. He did not know if the porters or other employees kept a log of when they cleaned the floors, or even if there was a daily log.

Mr. Sposito's testimony regarding Leson's rainy day procedures generally mirrored Mr. Lambert's testimony. He did specifically recall that when he entered the service bay, after Mrs. Landry had fallen, the yellow "wet floor" warning signs were deployed between Lanes 1 and 2 and between Lanes 3 and 4. Mr. Sposito was not familiar with any written log for floor checks. He said that Leson does not keep such a log, or a log of spills actually cleaned up, but that all employees knew what to do if they saw a spill, which would be to clean it up.

Mr. Colson, the service department manager, testified in his deposition that he was not working on the day Mrs. Landry fell, but that he was the employee who filled out the report when she returned two days later. Mr. Sposito was his direct supervisor. Mr. Colson identified the report, and said that this was the first time that he had ever filled out a slip and fall report.

Mr. Colson testified that it was standard procedure to place the "wet floor" warning signs on days that it rained. He had seen it done regularly and said that he had done it himself as well. He said that they even place the warning signs if they hear thunder, before it rains. He said that the signs are usually placed between the first and third lanes and that two to four signs are usually used. The porters usually put the signs out, but every employee could also put signs out. He testified that no daily log is kept of when or how many times the floors are cleaned. He was not aware of any written procedures pertaining to how to maintain a hazard free service drive, but said that it was their usual practice to take care of every condition that arose. He also described the "Zamboni" machine used by the porters, but did not state whether it had been needed and/or used that day. In his eleven years at Leson, he was aware of only one other customer falling in the service bay before Mrs. Landry, but that had occurred in a completely different area. He was unaware of any roof leaks in the service bay.

Though Mr. Colson testified that he had seen the wet floor signs placed in the service bay at the sound of thunder before rain began, there was no testimony that the signs were so placed on this particular day. Mrs. Landry testified that she did not see the wet floor signs; Mr. Sposito testified that he saw the signs in place at a point in time after Mrs. Landry fell, as he was returning to the service bay. There is an absence of testimony or evidence in the record to show whether the signs had been placed in the service bay, as per rainy day procedures, prior to Mrs. Landry's fall. Accordingly, a genuine issue of material fact remains as to whether Leson's rainy day procedures were implemented in a timely manner, thereby precluding summary judgment at this time.

Leson has argued that plaintiff's admission in her deposition that the water on the service bay floor was "open and obvious" defeats her claim. However, having found that genuine issues of material fact remain at this point as noted above, we disagree. As previously noted, in determining whether a condition is unreasonably dangerous, courts have adopted a four-part risk-utility balancing test. This test requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Broussard v. State, through Office of State Bldgs., Div. of Admin. , 12-1238 (La. 4/5/13), 113 So.3d 175, 184. The second prong of the risk-utility balancing test focuses on whether the defective condition is obvious and apparent, or as it has come to be commonly known, "open and obvious." Generally, a defendant does not have a duty to protect against an open and obvious hazard. Id. However, Broussard was clear that each case involving an unreasonable risk of harm analysis must be judged under its own unique set of facts and circumstances, and that there exists no bright line rule. "Open and obvious" is but one part of the fact-intensive four-part test to determine whether a condition is unreasonably dangerous.

Considering the foregoing, upon de novo review, we find that a genuine issue of material fact also remains at this time as to whether Leson had followed its rainy day procedures prior to Mrs. Landry's fall. The trial court accordingly erred in granting the motion for summary judgment.

APPLICABILITY OF LA. R.S. 9:2800.6

As noted above, the parties argued below and before this Court that the substantive law applicable to this case is La. R.S. 9:2800.6. As set forth above, this statute defines "merchant" as "one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn." There is no evidence in the record, however, that Leson sold goods, foods, wares, or merchandise in its service area. The evidence in the record indicates only that customers dropped off their cars in the service area to be serviced or repaired. Although not raised by the parties, upon review, we also find that a material issue of fact remains at this time as to whether Leson's service area meets the definition of "merchant" in La. R.S. 9:2800.6(C)(2).

CONCLUSION

For the foregoing reasons, the summary judgment granted in favor of defendants, dismissing Mrs. Landry's case with prejudice, is reversed. The matter is remanded for further proceedings.

REVERSED AND REMANDED

      In Mrs. Landry's original opposition, she noted that much discovery remained outstanding, including that no depositions had been taken of Leson's employees. She filed a supplemental opposition following further discovery, from which her arguments are cited.

      See discussion, infra , regarding the applicable law.

      See discussion, infra , on the definition of "merchant."

      We note that this Court has previously employed the same adjective without altering the plaintiff's legal burden of proof. See Frank v. Boomtown L.L.C. , 12-382 (La. App. 5 Cir. 12/11/12), 106 So.3d 227, 232 ("In the present case, plaintiffs have put forth no concrete evidence to prove that defendants either created or had actual or constructive knowledge of the condition of the restroom floor immediately prior to Mrs. Frank's fall." (Emphasis added.) ).

      However, the written accident report, signed two days later by Mrs. Landry, states that the wet floor signs were deployed that day.

      Mrs. Landry claimed in her opposition that Leson had no rainy day procedures in place. However, the testimony of the Leson employees was clear that Leson did in fact have rainy day procedures for dealing with rain water, but they were unwritten. La. R.S. 9:2800.6(B)(3) specifically states that "[i]n determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care."

      In this regard, we note that two courts of appeal have held that La. R.S. 9:2800.6 is applicable to the servicing and detailing area of a car dealership, rather than the more general laws regarding premises liability listed in La. R.S. 9:2800.6(D). Without analysis, the Second Circuit applied (the 1988 version of) La. R.S. 9:2800.6 to a slip and fall in the service department of a car dealership. See Reeves v. U.S.F.&G. Co. , 614 So.2d 857 (La. App. 2 Cir. 2/24/93). Also, the Fourth Circuit applied it to a parking area of a dealership immediately adjacent to an area where cars were detailed, again without analysis or consideration whether the car dealership met the definition of "merchant." See Martin v. Performance Motorwerks, Inc. , 03-1219 (La. App. 4 Cir. 6/16/04), 879 So.2d 840, writ denied , 04-2248 (La. 11/19/04), 888 So.2d 207. While the holdings of other Circuits are generally persuasive, they are not binding on this Court. We also note that both Reeves and Martin applied earlier versions of the statute prior to the 1996 amendment of the definition of "merchant" in La. R.S. 9:2800.6(C)(2), which narrowed the definition to include only particular, but not all, areas of an "inn." A car dealership, like an inn, may be composed of different areas, such as a showroom, a service department, and a detailing area, some or all of which may be similar to a merchant as described in La. R.S. 9:2800.6(C)(2). No Louisiana appellate court (nor the Louisiana Supreme Court) has yet specifically addressed by analysis whether the service area of a car dealership fits within the definition of a "merchant" as found in the current and applicable version of La. R.S. 9:2800.6(C)(2).
      We also note Weber v. Ray Brandt Nissan, Inc. , 04-0004 (La. App. 4 Cir. 8/18/04), 880 So.2d 999, a slip and fall case wherein plaintiff sued a car dealership who had displayed an automobile inside a shopping mall where plaintiff fell. The accident did not occur on the premises of the car dealership, and therefore it is not instructive in the instant matter.


source: Caselaw Access Project

author: Judge Paula A. Brown

license: Public Domain

text:
    RIVER RENTAL REALTY LLC, and River Rental Tools, Inc. v. DEEP SOUTH LEASING, LLC
    NO. 2017-CA-0982
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2018
    Timothy Thriffiley, George Pivach II, John E. Pivach, PIVACH PIVACH HUFFT THRIFFILEY & NOLAN, L.L.C., 8311 Highway 23, Suite 104, P. O. Box 7125, Belle Chasse, LA 70037-7125, COUNSEL FOR PLAINTIFFS/APPELLEES
    Michael L. Mullin, Betty F. Mullin, LAW OFFICE OF MICHAEL L. MULLIN, 401 Whitney Avenue, Suite 205, Gretna, LA 70056, R. A. "Red" Osborn, Jr., OSBORN & OSBORN APLC, 2439 Manhattan Boulevard, Suite 500, P. O. Box 457, Harvey, LA 70058, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Paula A. Brown

This case involves a public servitude. Appellant, Deep South Leasing, LLC ("Deep South"), seeks review of the district court's June 14, 2017 judgment which found a general public servitude existed in favor of Appellee, River Rental Realty, LLC, and River Rental Tools, Inc. (collectively "River Rental").

For reasons discussed below, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL HISTORY

River Rental and Deep South operate businesses on property in the Burmaster Land and Development Co., Inc. Industrial Park ("Industrial Park") in Belle Chasse, Louisiana.

River Rental's property is surrounded by three streets: Derrick Road, Commerce Street, and a street referred to as the Unnamed Roadway (or Oilfield Road). These three streets form a "U" shape, with Derrick Road and Commerce Street running perpendicular to each other, and the Unnamed Roadway connecting the northern ends of the two. Derrick Road and Commerce Street both exit onto Engineers Road.

In January 2014, Deep South purchased from Burmaster Land and Development Company, L.L.C. ("Burmaster") a tract of property in the Industrial Park. The description of the property was set forth in the Cash Sale of Property, which included a provision that the property was subject to a servitude in favor of the public for Derrick Road and a servitude for ingress and egress for Commerce Street, and Unnamed Roadway "as shown on survey by Hugh McCurdy, III, PLS dated June 18, 2013."

In August 2014, Deep South began blocking access to Commerce Street and the Unnamed Roadway by constructing gates on these roadways. As a result, River Rental filed in the district court a "Petition to Be Maintained in Possession and for Injunctive Relief" (the "Petition"). In the Petition, River Rental alleged that: (1) it had a right of servitude of ingress and egress over the roadways known as Commerce Street and the Unnamed Roadway; (2) the general public and ancestors in title had used the Unnamed Roadway and Commerce Street for a period in excess of thirty years as a servitude for ingress and egress; and (3) the previous owners of Unnamed Roadway and Commerce Street had implicitly dedicated the roads for public use. River Rental prayed that a temporary restraining order be issued enjoining Deep South from interfering with River Rental's enjoyment of the servitude and requiring Deep South to open or remove the gates it had constructed on the Unnamed Roadway and Commerce Street. Additionally, River Rental prayed that the court grant its application for a preliminary injunction and a permanent injunction consistent with the preliminary injunction.

Deep South filed an answer and a reconventional demand praying that the Petition be dismissed.

The district court issued an order granting a temporary restraining order against Deep South, enjoining it from interfering with River Rental's use of the servitude along Commerce Street and the Unnamed Roadway pending a show cause hearing on River Rental's application for a preliminary injunction.

Following the issuance of the temporary restraining order, the parties entered into a consent judgment wherein they agreed that a preliminary injunction would issue against Deep South, enjoining it from interfering with River Rental's use and enjoyment of the Unnamed Roadway and Commerce Street for ingress and egress pending a trial on River Rental's Petition.

A bench trial on the permanent injunction was held on March 23 and 24, 2017. At the beginning of trial, Deep South filed a "Motion in Limine and Motion to Strike Certain Claims of the Plaintiffs." The district court deferred ruling on the motion until the conclusion of the trial.

At trial, one of the main witnesses called by River Rental was Hugh McCurdy III ("Mr. McCurdy"). He was accepted by the district court as an expert, a professional land surveyor, and as the custodian of records for his father, Hugh McCurdy, Jr., also a professional land surveyor.

Mr. McCurdy testified the February 28, 1968 survey subdivided the tract into numbered lots and showed the dimensions of each lot; and monuments were set at the corners of every lot. The survey contained the Section, Township and Range where the property was located. The proposed streets, with the lengths and widths of the streets, were indicated on the survey. Additionally, Mr. McCurdy testified that the survey showed 50' wide streets, which was a typical size for Plaquemines Parish. Mr. McCurdy indicated the 1968 survey was signed by Hugh McCurdy, Jr., as a licensed civil engineer.

Mr. McCurdy testified that the March 24, 1971 survey showed a subdivision of property into numbered lots and the dimensions of each lot; and monuments were set at the corners of every lot. The survey contained the Section, Township and Range where the property was located and showed proposed streets with the lengths and widths of the streets. Mr. McCurdy noted that Lots IB-IK, and Lots 2B-2H as shown on this survey do not have access to Engineers Road except by these proposed streets. Mr. McCurdy indicated the 1971 survey was signed by a licensed land surveyor and civil engineer.

Mr. McCurdy testified the May 21, 1973 survey, which was a re-subdivision plat for Burmaster, showed a layout of subdivided numbered lots with dimensions; and monuments were set at the corners of every lot. The survey also contained the Section, Township and Range where the property was located, and it was signed by a licensed surveyor. The survey showed streets with 50' width. Mr. McCurdy stated that one of the streets, Derrick Road, shown in the 1973 survey was formally dedicated to the public by Burmaster and accepted by Plaquemines Parish in June 1973.

Mr. McCurdy testified he prepared the survey dated June 30, 2010. On the survey, the streets described in the previous surveys were marked Derrick Road, Commerce Street, and Unnamed Roadway. Mr. McCurdy stated that this survey was referred to in the property description contained in the Act of Sale between Burmaster and Deep South.

Mr. McCurdy testified the June 18, 2013 survey that he prepared showed a re-subdivision of property into numbered lots and showed the dimensions of the lots; and each lot had monuments at the corners. He explained that the survey showed 50' wide streets. These streets were designated in the survey as Derrick Road, Commerce Street, and Unnamed Roadway. Moreover, the survey contained the Section, Township and Range where the property was located. This survey was signed by a licensed surveyor. Mr. McCurdy testified that this survey showed both gross acreage and net acreage contained in the property being subdivided. The gross acreage took into account all of the property being surveyed. The net acreage showed what was left after Mr. McCurdy took out the property encumbered by the servitudes on Commerce Street, the Unnamed Roadway, and Derrick Road. Mr. McCurdy acknowledged this re-subdivision plan was approved by the Plaquemines Parish Council and filed in the conveyance records, as well as all the surveys he testified about were recorded, in some manner, in the conveyance records of Plaquemines Parish.

Mr. McCurdy indicated that, in his experience as a licensed land surveyor, when a landowner creates subdivision plans showing proposed streets, existing elevations and surface drainage, and showing paving and sub-surface drainage, it shows an intention on the part of the of the owner of the property to create a subdivision with streets.

Several witnesses, mainly business owners in the Industrial Park, testified on behalf of River Rental. Andre Amedee, president of River Rental Tools, and Maria Amedee, vice president of River Rental Tools, testified they had conducted business in the Derrick Road area since 1985. Both testified they used Commerce Street and Unnamed Roadway, they saw the public use these roadways, and they thought the roadways were public. Dennis Burmaster testified his father was one of the owners of Burmaster. He testified he helped construct Commerce Street and Unnamed Roadway in the mid-1960s and that the public had continuously used them.

Gavin Quartana testified his family owned a business on Derrick Road, and his father began developing the property for the business around 1976. He stated he and his employees used Commerce Street and Unnamed Roadway, and he thought these roads were public streets. Arvel H. Gurganus, Jr., testified his family owned a business on Derrick Road since 1985. He recalled he used Commerce Street and Unnamed Roadway, he saw other vehicles use these roads, and he thought they were public roads. Jonathon Choate testified he owned a business on the corner of Engineers Road and Commerce Street since 2007. He stated he used Commerce Street and Unnamed Roadway, he saw other vehicles use these roads, and he thought the roads were public streets. Gary Veron testified he drove his eighteen-wheeler truck on Commerce Street and Unnamed Roadway for eighteen to twenty years, and he thought they were public streets.

On behalf of Deep South, Douglas LaNasa, Jr., Chief Executive Officer of Deep South Leasing, LLC, testified. He stated Deep South began purchasing portions of Burmaster's property in 2010. He explained the purpose of the construction of the gates on Commerce Street and Unnamed Roadway was to provide security for the equipment stored on Deep South's property.

After taking the matter under advisement, a judgment was rendered on June 14, 2017, and the district court provided reasons for the judgment. The judgment provided in pertinent part:

• Denied Deep South's motion in limine ;
• Ordered Deep South, its agents, employees and/or representatives to recognize the existence of a servitude in favor of the general public along Commerce Street and the Unnamed Roadway (Oilfield Road);
• Entered a permanent injunction against Deep South and in favor of the River Rental, enjoining Deep South, its agents, employees and/or representatives from interfering with River Rentals'
or the general public's use of and enjoyment of Commerce Street and the Unnamed Roadway (Oil Field Road);
• Ordered Deep South, its agents, employees and/or representatives to permanently open and/or remove the gates which it placed across the Unnamed Roadway and Commerce Street; and
• Dismissed the Reconventional Demand of Deep South.

Following, Deep South filed a motion for new trial which was denied. This appeal followed.

STANDARD OF REVIEW

Appellate review of the issues-servitude, injunction, and motion in limine -have separate standards of review.

The standard of appellate review for judgments regarding servitudes was set forth by this Court in 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC , 15-0301, pp. 4-5 (La. App. 4 Cir. 12/23/15), 183 So.3d 724, 727 :

Judgments regarding servitudes are reviewed under the manifest error standard of review. Allen v. Cotton [Cotten] , 11-1354, p. 3 (La. App. 3 Cir. 5/2/12), 93 So.3d 681, 683 [citations omitted]. An appellate court may not set aside a trial court's findings of fact unless they are manifestly erroneous or clearly wrong. Id. (citing Rosell v. ESCO , 549 So.2d 840 (La.1989) ). To reverse under the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court's finding and that the record shows the finding to be manifestly erroneous. Id. (citing Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993) ).
* * *
However, legal errors are reviewed under the de novo standard of review. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. P'ship , 01-2812, p. 6 (La. App. 1 Cir. 12/30/02), 839 So.2d 82, 89-90, writ denied , 03-0306 (La. 4/4/03), 840 So.2d 1219. "Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights." Id. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id. , 01-2812, p. 6, 839 So.2d at 90 (citing Evans v. Lungrin , 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731 ; Turner v. Ostrowe , 01-1935 (La. App. 1st Cir. 9/27/02), 828 So.2d 1212 ).

The same standard is employed by appellate courts when reviewing an injunction. See Easterling v. Estate of Miller , 14-1354, p. 6 (La. App. 4 Cir. 12/23/15), 184 So.3d 222, 226 (citations omitted) (where this Court held that "[t]rial courts have great discretion in deciding whether to grant or deny a preliminary injunction, and we will not disturb their ruling absent a clear abuse of discretion..... Where one or more legal errors interdict the trial court's fact-finding process, the abuse of discretion standard becomes inapplicable, and we conduct our own de novo review of the record.").

Moreover, the standard of review for a motion in limine is abuse of discretion. See Cooper v. Pub. Belt R.R. , 02-2051, p. 3 (La. App. 4 Cir. 1/22/03), 839 So.2d 181,183.

DISCUSSION

Deep South asserts that the district court erred: (1) in finding River Rental met its burden of proving an implied dedication; (2) in finding River Rental met its burden of proving a statutory dedication; (3) in finding River Rental met its burden of proving acquisitive prescription; (4) in allowing River Rental to cumulate a possessory action with a petitory action; (5) in finding that River Rental is subject to a servitude over the property even though it has access to a roadway; (6) in reforming a document of title without authority; and (7) in its failure to rule that any servitude of ingress and egress was extinguished by confusion as a result of Deep South acquiring, both, the dominant and servient estates. We will address each of these errors, although some may be combined and reviewed out of order for consistency and ease of reading.

Motion in Limine

Deep South argues that the district court erred by allowing River Rental to cumulate a possessory action with a petitory action. Deep South, prior to trial, filed a motion in limine and motion to strike requesting that:

• River Rental be prohibited from introducing any evidence other than:
a. proof that River Rental acquired ownership from a previous owner or by acquisitive prescription, if the court found that Deep South was in possession of the property; or
b. proof of a better title than Deep South, if the Court found that the latter is not in possession.
• An order striking any allegation by River Rental that was inconsistent with the above limitations; and
• An order declaring that River Rentals filed a petitory action by claiming acquisitive prescription of thirty years, waiving claims of possession pursuant to Art. 3657 Code of Civil Procedure.

River Rental maintains the district court properly denied the motion because it was seeking use, not possession, of the roads. River Rental further asserts that the roads became a public servitude through thirty year acquisitive prescription, or alternatively, through dedication-statutory and implied.

The district court denied Deep South's motion in limine and reasoned:

Plaintiffs do not claim personal ownership of the servitude along Commerce Street and the Unnamed Roadway. Rather, they claim that the general public has acquired a servitude by use of these streets for over 30 years. Thus, articles 707, 740, and 742 of the Louisiana Civil Code govern here; and not, as defendant argues, articles 3661 and 3657 of the Louisiana Code of Civil Procedure.

A possessory action is proper when "the ownership or title of the parties to the immovable property or real right therein is not at issue." La. C.C.P. art. 3661. In the case sub judice , use, not ownership, is at issue. Accordingly, we find the district court did not abuse its discretion in denying the motion in limine .

Other Issues

Deep South contends that River Rental cannot claim a servitude of egress or ingress over its property because: (1) River Rental is not landlocked and has access to a roadway; (2) the district court reformed the documents that provided a servitude of ingress and egress on Commerce Street and Unnamed Roadway to a servitude in favor of the general public; and (3) when Deep South purchased the land, it became the owner of the dominant and the servient estate, resulting in extinguishment of the servitude of egress and ingress depicted in the surveys.

Review of the district court's judgment and reasons for judgment reveals that the district court did not directly rule on these issues. "It is well settled that when a trial court's judgment is silent with respect to a party's claim, or an issue placed before the court, it is presumed that the trial court denied the relief sought." Loria v. Petunia's Rest ., 02-1712, p. 3 (La. App. 4 Cir. 7/9/03), 852 So.2d 510, 512 (citations omitted).

Notwithstanding, Deep South claims that the district court erroneously relied on the servitude language contained in the 2013 survey and Cash Sale of Property between Burmaster and Deep South and reformed the documents to support its finding that a public servitude existed. Additionally, Deep South argues, assuming a servitude existed, it was extinguished by confusion, citing La. C.C. art. 765.

River Rental counters that it does not claim it is landlocked, and it points out that the arguments regarding the servitude of ingress and egress are inapplicable. River Rental declares that the district court's reference to ingress and egress in the 2013 survey and act of sale simply showed Burmaster's intent for the sale to be subject to the public servitude. We agree. The district court found the "existence of a servitude in favor of the general public along Commerce Street and the Unnamed Roadway." Thus, the arguments asserted by Deep South regarding a servitude of ingress and egress are inapplicable in this case.

Public Servitude

As discussed supra, the district court found a servitude in favor of the general public along Commerce Street and the Unnamed Roadway. A road may be either public or private. A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it. La. C.C. art. 457. In St. Charles Par. Sch. Bd. v. P & L Inv. Corp. , 95-2571, p. 3 (La. 5/21/96), 674 So.2d 218, 221, abrogated in part by Cenac v. Pub. Access Water Rights Ass'n , 02-2660 (La. 6/27/03), 851 So.2d 1006, the court explained:

When a private person owns the land on which a public road is built and the public merely has the right to use it, the land is a private thing subject to public use. A.N. Yiannopoulos, Property § 96, at 206 (2 Louisiana Civil Law Treatise 3d ed. 1991). The public may acquire an interest in the land on which a road is built or in the use of a road through purchase, exchange, donation, expropriation, prescription or dedication. Yiannopoulos, Property § 96, at 207.

Louisiana courts have recognized four modes of dedication of a private road to public use:

Our legislature has never enacted a comprehensive scheme governing dedication to public use. St. Charles Parish Sch. Bd. v. P & L Inv. Corp. , 95-2571, p. 4 (La. 5/21/96), 674 So.2d 218, 221 ; Garrett v. Pioneer Prod. Corp. , 390 So.2d 851, 854 (La.1980). The subject has thus been a controversial one. Garrett , 390 So.2d at 854. In the absence of such a comprehensive scheme, our courts have recognized four modes of dedication to public use: (1) formal, (2) statutory, (3) implied, and (4) tacit. P & L Inv. Corp. , 95-2571 at p. 4-5, 674 So.2d at 221.

Cenac , 02-2660, p. 5, 851 So.2d at 1011.

The district court further found formal dedication was inapplicable and tacit dedication was not proven; and we agree. Thus, the question before this Court is whether the district court erred in finding a servitude in favor of the general public along Commerce Street and the Unnamed Roadway that was established by implied dedication, statutory dedication, and/or acquisitive prescription.

Implied dedication

Deep South argues that the district court erred in finding an implied dedication of Common Street and Unknown Roadway.

In Cenac , 02-2660, pp. 6-8, 851 So.2d at 1011-12 (footnote omitted), the Supreme Court explained implied dedication:

Implied dedication is a common law doctrine, but it has been recognized by Louisiana courts since the nineteenth century. See id. at p. 5, 674 So.2d at 222. See also Municipality No. 2 v. Orleans Cotton Press , 18 La. 122 (1841) (citing City of Cincinnati v. White's Lessee, 31 U.S. (6 Pet.) 431, 8 L.Ed. 452 (1832) ). No particular formalities are required to effectuate an implied dedication. 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property § 98, at 214 (4th ed.2001). Traditionally, because implied dedication lacks the formalities and safeguards of the other modes of dedication, the two indispensable elements of implied dedication required by the courts are "a plain and positive intention to give and one equally plain to accept." P & L Inv. Corp. , 95-2571 at p. 5, 674 So.2d at 222 (quoting Carrolton [Carollton] Rail Rd. Co. v. Municipality No. Two , 19 La. 62, 71 (1841) ). See also Humphreys v. Bennett Oil Corp. , 195 La. 531, 197 So. 222 (1940) ; Bomar v. City of Baton Rouge, 162 La. 342, 110 So. 497 (1926) ; De Grilleau v. Frawley , 48 La. Ann. 184, 19 So. 151 (1896) ; Town of Carrollton v. Jones , 7 La. Ann. 233 (1852) ; Yiannopoulos § 98, at 214. Thus, implied dedication requires an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public.
* * *
The weight of authority establishes that an implied dedication gives rise to a servitude of public use and does not transfer ownership. Id. at p. 6, 674 So.2d at 222 ; Arkansas-Louisiana Gas Co. v. Parker Oil Co. , 190 La. 957, 183 So. 229, 240 (1938) ; James v. Delery , 211 La. 306, 29 So.2d 858 (1947). See also Yiannopoulos § 98, at 217; 11A Eugene McQuillin, The Law of Municipal Corporations § 33.68 (3rd ed.2000).
The burden of proving the implied dedication falls upon the party asserting the dedication. Jones , 7 La. Ann. at 235 ; Drabik v. Town of East Lyme , 234 Conn. 390, 662 A.2d 118 (1995) ; State ex rel. Haman v. Fox , 100 Idaho 140, 594 P.2d 1093 (1979) ;
Derby Heights, Inc. v. Gantt Water & Sewer Dist. , 237 S.C. 144, 116 S.E.2d 13 (1960) ; McQuillin § 33.11. The question of intent to dedicate to public use is one of fact. Donaldson's Heirs v. City of New Orleans , 166 La. 1059, 1063, 118 So. 134, 135 (1928). See also Mihalczo v. Borough of Woodmont , 175 Conn. 535, 400 A.2d 270 (1978) ; Viscardi v. Pajestka , 576 S.W.2d 16 (Tex.1978) ; Cooper v. City of GreatBend , 200 Kan. 590, 438 P.2d 102 (1968). The factual findings of a trial court should not be set aside by a court unless they are manifestly erroneous or clearly wrong. Arceneaux v. Domingue , 365 So.2d 1330 (La.1978).

Deep South challenges the district court's finding of an implied dedication on the basis that no evidence was offered by River Rental to prove a "plain and positive intention to give and one equally plain to accept" as required by Cenac. Deep South urges that "[t]he actions of Burmaster in dedicating Derrick Road, while choosing not to dedicate the alleged servitude-No Name [sic] Road and Commerce Road [sic]-although he could have, indicate that Burmaster had no intention to dedicate the No Name [sic] Road and Commerce Road [sic]."

In finding an implied dedication, the district court reasoned:

Defendant suggests plaintiffs failed to meet their burden as to implied dedication, since plaintiffs' evidence at trial did not show a plain and positive intent on the part of Burmaster Land to dedicate Commerce Street and the Unnamed Roadway to public use. The Court disagrees.
Courts have found an implied dedication when the owner of a tract of land subdivides it into lots, designates streets or roads on a map, and then sells the property or any portion of it with reference to the map. St. Charles Parish Sch. Bd. v. P & L Investment Corp., 95-2571, pp. 5-6 (La. 5/21/96), 674 So.2d 218, 222, reversed (on other grounds) by Cenac, supra ; Vernon Parish Police Jury v. Buckley, 02-91, p. 3 (La. App. 3d Cir. 10/2/02), 829 So.2d 610, 612, writ denied, 03-0400 (La. 10/10/03), 855 So.2d 345. Such an implied dedication establishes a servitude of public use. St. Charles Parish Sch. Bd., supra ; Becnel v. Citrus Lands of Louisiana. Inc., 429 So.2d 459, 461 (La. App. 4 Cir. 1983), writ denied, 437 So.2d 1147 (La. 1983).
The Court finds that plaintiffs provided sufficient evidence to meet their burden of proof with respect to implied dedication. As noted above, plaintiffs introduced four separate subdivision surveys at trial, with accompanying sales referring to those surveys, to evidence the clear intent of the Burmasters [sic] to dedicate Commerce Street and the Unnamed Roadway as public streets. The 1968 survey shows the creation of lots along the proposed 50-foot streets. The Burmasters [sic] then sold lots 1A and IB as shown on the 1968 survey, and the survey was attached to the sale of a lot to Allied Building Co-Ordinators, Inc. and filed into the conveyance records of Plaquemines Parish. The 1971 survey again shows the creation of various lots along the 50-foot streets. The Burmasters [sic] sold off Lots 3B, 3C1, 3C2, and 2J, with reference to the 1971 survey, and the survey was recorded in the conveyance records of Plaquemines Parish, attached to the sale to Harvey Specialty and Supply, Inc. The 1973 survey shows the creation of lots in the industrial park, along with location of the proposed streets. This plat was recorded in the conveyance records of Plaquemines Parish when it was attached to the Act of Dedication of Derrick Road.
The most persuasive evidence of Burmaster's intent to dedicate Commerce Street and the Unnamed Roadway as public streets is the 2013 subdivision plan, on which Commerce Street and the Unnamed Roadway are marked with the wording "servitudes of ingress and egress." The 2013 plan was approved by the Plaquemines Parish Council and was recorded in the parish conveyance records.
The Burmasters [sic] then sold off lot A-1, including in the sale a reference to the 2013 subdivision plan. Defendant argues that the Louisiana Supreme Court, in Cenac, supra, overruled St. Charles Parish Sch. Bd. in its entirety, including the holding that the subdivision of a tract of land into lots on a survey, and the subsequent selling of those lots with reference to the survey, create an implied dedication of the streets shown on the survey. But Cenac did not overrule that holding; it only clarified St. Charles Parish Sch. Bd.'s apparent requirement that the parish maintain the streets for an implied dedication to exist, stating:
The jurisprudence [,] suggesting that maintenance by the municipality is required before an implied dedication can be made [,] is an aberration in our law. As explained above, all that has traditionally been required for an implied dedication is an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public.
Cenac, 02-2260 at p. 7, 851 So.2d at 1012.
Not only did the evidence at trial show the clear intent of the Burmasters [sic] to dedicate Commerce Street and the Unnamed Roadway to public use, but there was abundant evidence of the public's clear intent to accept the dedication of the two streets to public use.... [P]laintiffs provided numerous witnesses who testified to the public use of Commerce Street and the Unnamed Roadway, without title or good faith, for a period in excess of 30 years prior to Deep South's placing of gates across those streets. This uninterrupted use is sufficient for the public to have acquired a right of passage over the streets by implied dedication.

Our review of the district court's reasons for judgment reveals that the district court effected a clear and comprehensive application of the law to the facts of this case. The record supports the reasons and analysis employed by the district court in finding the Burmaster's unequivocally intended to dedicate Commerce Street and Unnamed Road to public use and the public's clear acceptance. Accordingly, we find the district court did not err in finding an implied dedication of a servitude in favor of the general public along Commerce Road and Unnamed Roadway.

Statutory dedication and Acquisitive Prescription

Deep South asserts River Rental failed to meet its burden of proof as to statutory dedication and adverse possession. Because this Court found the district court did not err in finding a public servitude was created via implied dedication, whether a public servitude was established by statutory dedication and acquisitive prescription need not be addressed and are pretermitted.

CONCLUSION

The district court's June 14, 2017 judgment is affirmed.

AFFIRMED

      Deep South is the Defendant/Plaintiff-in-Reconvention in this matter.

      River Rental is the Plaintiff/Defendant-in-Reconvention in this matter.

      Documents, which included the Cash Sale of Property and surveys from 1968, 1971, 1973, 1974, 2010, and 2013 that will be discussed infra , were admitted into evidence at trial for the limited purpose of showing information on the servitude that was created.

      La. C.C.P. art. 3657 provides in part: "The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated."

      On the 2013 survey by Mr. McCurdy, there are notations of "servitude of ingress and egress" indicated on Commerce Street and Unnamed Roadway. Additionally, the Cash Sale of Property from Burmaster to Deep South includes a paragraph referencing the roads are subject to servitudes:
      THE PARTIES TAKE COGNIZANCE THAT THE PROPERTY IS SUBJECT TO THE FOLLOWING, TO WIT:
      * * *
      III. [S]ervitude for ingress and egress for Commerce Street, an [sic] unnamed roadway as shown on survey by Hugh McCurdy, III, PLS dated June 18, 2013.

      La. Civil Code art. 765 provides that "[a] predial servitude is extinguished when the dominant and the servient estates are acquired in their entirety by the same person."

      Although River Rental asserted in the Petition the right to a servitude of ingress and egress, it abandoned that argument at trial.


author: SAVOIE, Judge.

text:
    Gerald J. MIRE v. Brandon A. GUIDRY, et al.
    17-745
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2018
    Guy D. Perrier, Jean E. Lavidalie, Jr., Perrier & Lacoste, L.L.C., 365 Canal Street, Suite 2550, New Orleans, Louisiana 70130, (504) 212-8820, COUNSEL FOR DEFENDANTS/APPELLANTS: State National Insurance Company, Brandon A. Guidry, Butcher Air Conditioning Company
    Byron A. Richie, Paul D. Oberle, Jr., Patrick W. Woolbert, Richie, Richie & Oberle, L.L.P., 1800 Creswell Avenue, Post Office Box 44065, Shreveport, Louisiana 71134, (318) 222-8305, COUNSEL FOR DEFENDANTS/APPELLEES: National Automotive Insurance Company, Tricia R. Sam
    Jason M. Welborn, Attorney at Law, 617 South Buchanan Street, Lafayette, Louisiana 70501, (337) 233-3185, COUNSEL FOR PLAINTIFF/APPELLEE: Gerald J. Mire
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Defendants, Brandon A. Guidry, Butcher Air Conditioning Company, and State National Insurance Company, appeal the judgment of the trial court, granting the Motion for Summary Judgment filed by Co-Defendants, Tricia R. Sam and National Automotive Insurance Company, and dismissing Plaintiff, Gerald Mire's, claims against Sam and National Automotive. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This cause of action arises out of an automobile accident which occurred on June 22, 2015, in Lafayette, Louisiana. The accident involved a three car rear-end collision, with Mire being the driver of the first vehicle, Sam driving the second vehicle following Mire, and Guidry as the rear driver following the Sam vehicle. Mire initiated suit through a Petition for Damages naming as Defendants: (1) Brandon Guidry; (2) his employer, Butcher Air Conditioning, Inc., the owner of the vehicle Guidry was driving at the time of the accident; (3) State National Insurance Company, Inc., the insurer of Butcher Air and Guidry; (4) Tricia Sam; (5) EAN Holdings, LLC , the owner of the Sam vehicle; and (6) National Automotive Insurance Company, the insurer of Sam. The petition alleges that Guidry collided with the rear of Sam's vehicle, causing her vehicle to then collide with the rear of the Mire vehicle. In the alternative, the petition alleges that Sam first collided with the rear of the Mire vehicle, and the Sam vehicle was subsequently struck by the Guidry vehicle because he was following too closely.

In their Answer and Jury Demand, Tricia Sam and National Automotive (the Sam Defendants) claim Brandon Guidry was wholly at fault for the accident. Butcher Air and State National answered the petition specifically alleging the third-party fault of Tricia Sam. In the alternative, they allege the comparative fault of Sam. In a separate answer, Brandon Guidry makes the same allegations.

The issue before us stems from the Motion for Summary Judgment filed by the Sam Defendants. In the motion, they requested that the trial court dismiss Gerald Mire's claims against them based on Mire's testimony that he only felt one impact. The Sam Defendants argued that this evidence proved Sam's vehicle was pushed into Mire's vehicle "as a result of being rear ended herself by the vehicle being operated by the defendant, Brandon A. Guidry." In opposition to the Motion for Summary Judgment, Guidry, Butcher Air, and State National (the Guidry Defendants) contended that a genuine issue of material fact existed because Mire told his treating physicians that he felt two different and distinct impacts when discussing the accident with them.

After a hearing on the matter, the trial court found in favor of the Sam Defendants, granting their motion for summary judgment and dismissing Mire's claims against them. The Guidry Defendants first filed a supervisory writ application alleging that there was a genuine issue of material fact in dispute and that the credibility of the plaintiff was improperly considered at the hearing. A panel of this court denied the writ, finding that the ruling at issue is a partial final judgment which is subject to an appeal. The Guidry Defendants now appeal on the same grounds found in their writ application.

LAW AND DISCUSSION

I. The Guidry Defendants' Right to Appeal

Before we address the Guidry Defendants' appeal, we must first determine whether this court can hear the appeal before us. The plaintiff in this matter, Gerald Mire, did not appeal the trial court's decision on the motion for summary judgment. As such, the Sam Defendants contend that the judgment is final between the parties and that there is no issue for this court to decide.

In support, the Sam Defendants cite the supreme court decision of Grimes v. La. Medical Mut. Ins. Co. , 10-39 (La. 5/28/10), 36 So.3d 215. In Grimes , the plaintiff filed a medical malpractice claim against a hospital, two doctors and an insurer. The hospital filed a motion for summary judgment alleging that the nurses were in the immediate control of the doctors and not the hospital and, therefore, the hospital could not be liable. The trial court granted the motion, and the doctors appealed. The first circuit reversed, finding the "dual employer" doctrine applied liability to both the doctors and the hospital. In reversing the first circuit, the supreme court stated, "the filing of an appeal from the judgment of the trial court by another party only brings 'up on appeal the portions of the judgment that were adverse to [that party],' but not 'the portions of the judgment that were adverse to plaintiffs.' [ Nunez v. Commercial Union Ins. Co. , 00-3062, p. 2 (La. 2/16/01), 780 So.2d 348, 349 ]." Because the hospital did not appeal the trial court's judgment, "the summary judgment dismissing [the hospital] acquired the authority of a thing adjudged and is now final between the parties." Grimes at 217. However, the supreme court concluded that "[the doctors], if they are able to prove the fault of the hospital's employees/nurses, are still entitled to a reduction in judgment by the percentage of fault allocated to the hospital in accordance with the general principles of comparative fault set forth in La. Civ.Code art. 2323(A)." Id.

The fifth circuit case of Dixon v. Gray Insurance Company , 17-29 (La.App. 5 Cir. 6/15/17), 223 So.3d 658, explained that the recent amendment to La.Code Civ.P. art. 966 now denies the reduction in judgment relief to the co-defendant that is left in the case after summary judgment. Louisiana Code of Civil Procedure Article 966(G) (emphasis added) provides:

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

This amendment changes the prior law. The Dixon court found that this was an "emphatic expression by the legislature" and that it is "clear and unambiguous, and [does] not lead to absurd results." Dixon at 661,. While we agree that it is clear and unambiguous, we disagree that it will not lead to absurd results. The defendant bears the burden of proof on an affirmative defense. However, the change in the summary judgment law, combined with the line of cases finding that, when a judgment dismisses one of several cumulated claims by the plaintiff, the plaintiff must appeal the trial court decision or else the judgment becomes final, leaves the co-defendant unable to prove its own claims for third party and comparative fault against the other co-defendant. This most certainly is an absurd result.

Moreover, La.Code Civ.P. art. 2086 entitled "Right of third person to appeal" states: "A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." It seems illogical to allow a non-party, but not an actual party, an appeal in a case. Further, La.Code Civ.P. art. 1031 allows "[a] demand incidental to the principal demand [to] be instituted against an adverse party, a co-party, or against a third person." Incidental demands included cross-claims and demands against third parties. Id. The defendant who asserts the affirmative defense bears the burden of proof. Lopez v. Thibodeaux , 09-719 (La.App. 3 Cir. 2/3/10), 28 So.3d 1215. The law, as it currently stands, makes it impossible for a co-defendant to prove its affirmative defense in this situation.

In the present case, the Sam Defendants' motion for summary judgment was directed at Mire's claims against them, however, the trial court's decision directly affects the amount of liability with which the Guidry Defendants will ultimately be cast. We find that, barring a co-defendant from appealing a decision of the trial court that adversely affects them, and then not allowing that same co-defendant to argue comparative and third-party fault to the factfinder even though it was plead in their answer, is unjust and improper. The Guidry Defendants pled the fault of the Sam Defendants, and they have a right to prove that affirmative defense. Therefore, we find that the Guidry Defendants can appeal the trial court's decision on the Sam Defendant's motion for summary judgment.

II. Motion for Summary Judgment

The appellate standard of review for motions for summary judgment is set forth as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La. 11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light , 2006-1181[,] p. 17 (La. 3/9/07), 951 So.2d 1058, 1070 ; King v. Parish National Bank , 2004-0337[,] p. 7 (La. 10/19/04), 885 So.2d 540, 545 ; Jones v. Estate of Santiago , 2003-1424[,] p. 5 (La. 4/14/04), 870 So.2d 1002, 1006.

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

"A fact, for summary judgment purposes, is "material" if it potentially ensures or precludes recovery, "affects a litigant's ultimate success, or determines the outcome of a legal dispute." Hines [v. Garrett , 04-806, p. 1 (La. 6/25/04) ], 876 So.2d [764, 765 ]. A genuine issue of material fact is an issue over which reasonable minds could disagree. Id. " Barber v. La. Mun. Risk Management Agency Group Self-Insured Fund , 17-1005, p. 6 (La.App. 3 Cir. 4/18/18), 244 So.3d 56, 61, 2018 WL 1833382.

The Sam Defendants attached the deposition of Tricia Sam to the motion for summary judgment, wherein she testified that she did not collide with the Mire vehicle until she was struck from the rear by the Guidry vehicle. Also attached to the motion for summary judgment is the deposition of Gerald Mire. In his deposition, Mire stated that he only felt one rear impact.

In opposition to the motion for summary judgment, the Guidry Defendants asserted that Mire made the alternative argument in his petition for damages that the Sam vehicle first collided with his vehicle and was then subsequently struck by the Guidry vehicle. In support of this argument, the Guidry Defendants attached the medical records of two of Mire's treating physicians. The medical records show that Mire presented to Dr. William Brennan at Neurological Solutions of Lafayette, LLC on August 7, 2015, with back and neck pain. Mire explained to Dr. Brennan that he was stopped at a red light "when he was struck twice, once by a Toyota Camry to his immediate rear, and then both vehicles were struck by approximately a half-ton truck." The medical records of Dr. Joseph Bozelle, Jr. with the Louisiana Specialty Institute were also attached to the opposition. These records indicate that Mire presented to Dr. Bozelle on November 6, 2015, complaining of headaches, neck pain, shoulder pain, and back pain which radiated down his leg. When describing the accident to Dr. Bozelle, Mire stated that he was "hit from behind by a Toyota Camry" and that "there were two impacts very close together, and both vehicles were struck by a half-ton truck from behind."

We find that there exists a genuine issue of material fact in this matter as to how many times Mire's vehicle was impacted. "Weighing evidence and making credibility determinations are to be addressed at a trial on the merits, not at the summary stage of the proceedings." Domingue v. Louisiana Guest House, LLC , 17-633, p. 7 (La.App. 3 Cir. 12/6/17), --- So. 3d. ----, ----, 2017 WL 6029301.

DECREE

For these reasons, the judgment of the trial court is reversed. Costs of this appeal are hereby assessed against Tricia R. Sam and National Automotive Insurance Company.

REVERSED.

Amy, J., concurs in the result.

      The record shows that EAN Holdings, LLC was dismissed without prejudice from the lawsuit on September 28, 2016.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Matthew J. FLUGENCE
    NO. 17-KA-694
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna,
    COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW J. FLUGENCE, Holli A. Herrle-Castillo
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant appeals his conviction and sentence for first degree murder. For the following reasons, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On November 14, 2013, defendant, Matthew J. Flugence, was charged by bill of indictment with the first degree murder of a known juvenile in violation of La. R.S. 14:30. Defendant pleaded not guilty at his arraignment.

On March 24, 2016, defendant withdrew his plea of not guilty, and after being advised of his Boykin rights, pleaded guilty as charged. As part of the plea agreement, the State withdrew its intent to pursue the death penalty. Thereafter, with the consent of the parties and in compliance with La. C.Cr.P. arts. 557(A)

and 905(B), defendant was sentenced to a term of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant sought an out-of-time appeal, which was granted by the trial court on September 11, 2017.

FACTS

Because defendant's conviction was the result of a guilty plea, the facts underlying the crime of conviction are not fully developed in the record. The facts were gleaned from the factual basis provided by the State at the guilty plea proceeding. The State alleged that:

[I]f this case were to have proceeded to trial the State would prove beyond a reasonable doubt that on July 13, 2013 that the Defendant in Jefferson Parish, State of Louisiana committed and violated the charge of Louisiana Revised Statute 14:30 and that he did commit the first degree [murder] of a known juvenile, date of birth March 3, 2007.

LAW AND DISCUSSION

Pursuant to the procedure adopted by this Court in State v. Bradford , 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241(per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She asserts that defendant pleaded guilty pursuant to a plea agreement, which was properly accepted by the trial court after defendant was fully informed of the legal consequences surrounding his plea. Further, appellate counsel states that defendant was informed of the sentence to be imposed and the trial court imposed the agreed upon sentence without objection by defendant, precluding defendant from challenging his sentence on appeal. The State has filed a brief in this matter, concurring with appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record which states she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal. Appellate counsel indicates that she has notified defendant of the filing of her motion to withdraw and of his right to file a pro se supplemental brief in this appeal. Defendant has not filed a pro se supplemental brief in this matter.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The bill of indictment properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464 - 466. The record also shows that there are no appealable issues surrounding defendant's presence. The minute entries and commitment reflect that defendant and his counsel appeared at each stage of the proceedings against him, including his arraignment, his guilty plea proceeding, and his sentencing.

Defendant pleaded guilty to first degree murder, a violation of La. R.S. 14:30, after having received the consent of the court and the State, with the stipulation that the court would impose a life sentence without benefit of probation, parole, or suspension of sentence and without conducting a sentencing hearing, in accordance with La. C.Cr.P. arts. 557(A) and 905(B). If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697, p. 5 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The record also shows that during his plea proceeding, defendant stated that he was "waiving all motions." There were no pre-trial rulings preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant's guilty plea. The record shows defendant was aware he was pleading guilty to one count of first degree murder in exchange for the State relinquishing its intent to pursue the death penalty. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin , supra. Defendant verbally indicated to the trial court that he understood that by pleading guilty he was waiving these rights. He also placed his initials next to the rights he was waiving and his signature at the end of the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty.

Defendant was informed during the colloquy, and by means of the waiver of rights form, of the mandatory sentence for the offense as well as the actual penalty that would be imposed upon acceptance of his guilty plea. He was also informed that his guilty plea could be used to enhance a penalty for any future conviction. Defendant indicated that he understood the possible legal consequences of pleading guilty and confirmed that his guilty plea was freely and voluntarily given without any promises or threats having been made to encourage him into entering his guilty plea. He also stated that he was satisfied with the handling of his case by his attorney. After the colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely, and voluntarily made.

Lastly, defendant's sentence does not present any issue for appeal. The mandatory sentence prescribed by La. R.S. 14:30(C)(2) was imposed. Further, defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement after the trial court granted the State and defendant's joint motion to waive sentencing delays as required under La. C.Cr.P. art. 905(B). La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

State v. Moore , 06-875, p. 15 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion. Accordingly, we affirm defendant's conviction and sentence, and we grant appellate counsel's motion to withdraw as attorney of record.

ERRORS PATENT

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990) regardless of whether defendant makes such a request. Our review in this matter revealed no errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW AS COUNSEL OF RECORD GRANTED.

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      La. C.Cr.P. art. 557(A) provides:
      A. A court shall not receive an unqualified plea of guilty in a capital case. However, with the consent of the court and the state, a defendant may plead guilty with the stipulation either that the court shall impose a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence without conducting a sentencing hearing, or that the court shall impanel a jury for the purpose of conducting a hearing to determine the issue of penalty in accordance with the applicable provisions of this Code.

      La. C.Cr.P. art. 905(B) provides:
      B. Following a conviction by trial or guilty plea in a capital case, on joint motion of the state and the defendant, the court may impose a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence without conducting a sentencing hearing. The court may refuse to grant the joint motion and order that a sentencing hearing be conducted.

      As part of the plea agreement, the State also dismissed several other charges against defendant, including aggravated rape of a victim under the age of thirteen (La. R.S. 14:42 ), unauthorized entry of an inhabited dwelling (La. R.S. 14:62.3 ), battery upon a correctional officer (La. R.S. 14:34.2 ), and resisting a police officer with force or violence (La. R.S. 14:108.2 ), which were pending against defendant under docket numbers 13-5248 and 15-7124.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 10, 2018 to file a pro se supplemental brief.

      La. R.S. 14:30(C)(2) provides, in pertinent part, "[i]f the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence." Defendant herein received a life sentence at hard labor without benefit of parole, probation, or suspension of sentence.