author: JOHNSON, J.

text:
    Peter and Laurie YAUKEY, individually and on behalf of their minor child, Peirson Yaukey and Austin Yaukey v. Henry BALLARD and Marian Ballard
    NO. 18-C-449
    Court of Appeal of Louisiana, Fifth Circuit.
    March 20, 2019
    COUNSEL FOR PLAINTIFF/RESPONDENT, PETER AND LAURIE YAUKEY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, PEIRSON YAUKEY AND AUSTIN YAUKEY, Peter Yaukey and Laurie Yaukey
    COUNSEL FOR DEFENDANT/RELATOR, MARIAN BALLARD AND SOUTHERN FIDELITY INSURANCE COMPANY, Matthew D. Monson, Rachel L. Flarity, Kevin P. Riche'
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Defendants/Relators, Marian Ballard and Southern Fidelity Insurance Co., seek this Court's supervisory review of the trial court's June 21, 2018 denial of their motion for summary judgment. We find that Defendants are entitled to summary judgment as a matter of law and, therefore, reverse the trial court's ruling, grant summary judgment in favor of Defendants, and dismiss Plaintiffs' claims against Defendants with prejudice.

On August 13, 2015, Plaintiffs, Laurie Yaukey, individually, and Peter Yaukey, on behalf of their children Austin and Peirson, filed suit seeking damages for alleged mold exposure at a property located on Oak Avenue in Harahan that was leased to Plaintiffs by Ms. Ballard beginning in June 2014. Plaintiffs alleged that the mold resulted from water leaking inside the premises over a period of time, which they discovered in May 2015 after a mold inspection. Plaintiffs asserted they have suffered various medical conditions as a result of the mold exposure.

On January 30, 2018, Defendants filed a motion for summary judgment, or alternatively a motion for partial summary judgment, asserting that Plaintiffs could not prove that the mold exposure was of a dose sufficient to cause health effects (general causation) and that there was a sufficient causative link between Plaintiffs' alleged health problems and the specific type of mold found on the property (specific causation). Defendants maintained that Plaintiffs did not have the required medical expert testimony to establish both general and specific causation.

Defendants attached numerous exhibits in support of their motion for summary judgment, including the partial depositions of Ms. Yaukey, Peirson, Austin and various treating physicians, voluminous medical records, and an affidavit of their expert environmental scientist/microbiologist, William Feaheny, along with his expert report attached. These exhibits demonstrate that Ms. Yaukey has complained of mold exposure since Hurricane Katrina in three different properties, including the property involved in the current litigation. Additionally, Ms. Yaukey has an extensive medical history pre-dating the current alleged mold exposure, including abnormal vaginal bleeding, anemia, anxiety, back injury, back pain, chest pain, chronic constipation, chronic fatigue syndrome, depression, dizziness, fibromyalgia, headache, hyperthyroidism, irregular heartbeat, migraine, neck injury, neck pain, neurological disorder, neuropathy, numbness, shortness of breath, tingling, umbilical hernia, urinary incontinence, urinary tract infection and varicose veins. In early 2016, after moving out of the property at issue, she was further diagnosed with breast cancer.

According to his affidavit and attached report, Defendants' expert, Mr. Feaheny, President and Owner of ATA Air Testing Associates, LLC, conducted an inspection of the Oak Avenue home on September 22, 2015. Upon inspection, he did not find any water damage or mold growth. He conducted a moisture inspection and found no active moisture concerns. He further found that the indoor airborne fungal ecology within the living areas sampled was within normal parameters.

According to the various deposition excerpts attached to Defendants' motion, none of Ms. Yaukey's treating physicians, including Dr. Monty Glorioso, Dr. Newland Worley, Dr. Mahmoud Sarmini, and Dr. Kashmir Rai, relate any of her medical conditions to mold exposure, despite her reported history of mold exposure to her doctors.

In opposition to the motion for summary judgment, Plaintiffs relied on the affidavit of their expert, Brent Driskill, owner of Driskill Environmental Consultants, LLC, his attached microbial assessment report, and the medical records of Dr. Donald Dennis, an ENT in Atlanta, Georgia. According to Mr. Driskill's report, he inspected the Oak Avenue property on May 5, 2015 for the purpose of determining the extent of visible and/or air borne fungal existence in the home. His inspection revealed elevated levels of Cladosporium and Trichoderma molds in a tape-lift sample taken from the interior air conditioner. The air sample analysis from the master bedroom was within the normal mold ecology levels as compared to the outdoor air sample. And, the air sample analysis from the children's bedroom revealed that the indoor air had lower mold spore levels than the outdoor air and was within the normal mold ecology levels.

Dr. Dennis' medical records indicate that Ms. Yaukey reported three mold exposures beginning with Hurricane Katrina. Dr. Dennis' records note that Ms. Yaukey "has had significant toxic mold exposure" and specifically notes that she was exposed to cladosporium and trichoderma. Dr. Dennis' deposition has yet to be taken because of a dispute over his fee. The records seem to indicate that Ms. Yaukey tested negative for the various allergens related to mold exposure, which is consistent with the findings of her local treating physicians. While Dr. Dennis' medical records show that Ms. Yaukey had sinus inflammation or chronic sinusitis, nowhere in his records does he indicate that her medical condition, or the medical conditions of Peirson or Austin, were caused by mold exposure.

After a hearing on the motion for summary judgment, the trial court denied the motion by written judgment on June 21, 2018. In its reasons for judgment, the trial court indicated that there were genuine issues of material fact. Defendants filed the instant writ application seeking review of this judgment.

On supervisory review or on appeal, our review of a ruling granting or denying summary judgment is de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Breaux v. Fresh Start Properties , L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue as to material fact, and whether the mover is entitled to judgment as a matter of law. Id.

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 party bringing the motion bears the burden of proof; however, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the burden is on the non-moving party to produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(D)(1). Stogner v. Ochsner Clinic Foundation , 18-96 (La. App. 5 Cir. 9/19/18), 254 So.3d 1254, 1257, writ denied , 18-1723 (La. 1/8/19), 259 So.3d 1023.

Plaintiffs in a mold personal injury case must prove: (1) the presence of mold; (2) the cause of the mold and the relationship of that cause to a specific defendant; (3) actual exposure to the mold; (4) the exposure was a dose sufficient to cause health effects (general causation); and (5) a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation). Watters v. Dept. of Social Services , 08-977 (La. App. 4 Cir. 6/17/09), 15 So.3d 1128, 1143, writs denied , 09-1651 (La. 10/30/09), 21 So.3d 291, and 09-1638 (La. 10/30/09), 21 So.3d 293.

After consideration of all the evidence presented, we find that Defendants have adequately shown there is an absence of factual support for both general causation and specific causation. We further find that Plaintiffs failed to produce any evidence to establish that they would be able to satisfy their burden of proving general and specific causation at trial. While Plaintiffs showed they were exposed to mold - cladosporium and trichoderma - they offered absolutely no evidence to show that they were exposed to a dose sufficient to cause health effects or that their health problems have been linked to the specific mold to which they were exposed. Accordingly, we find that Defendants are entitled to judgment as a matter of law.

For these reasons, we grant Defendants' writ application and reverse the judgment of the trial court. We further grant summary judgment in favor of Defendants and dismiss Plaintiffs' claims against Defendants with prejudice.

WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT GRANTED

      In accordance with La. C.C.P. art. 966(H), the parties have been afforded additional briefing opportunities and participated in oral argument regarding the writ application.

      Defendants have sought to take Dr. Dennis' discovery deposition, but he demanded a $ 5,000 flat rate fee. The trial court subsequently set his fee at $ 500/hour. However, according to Defendants, Dr. Dennis refuses to comply with the trial court's order because he is not subject to the personal jurisdiction of the court. Because of this, Defendants seek to exclude Dr. Dennis' medical records from consideration in connection with the motion for summary judgment. La. C.C.P. art. 966 does not require that a deposition be submitted for consideration in a motion for summary judgment, but simply states that certified medical records are one of the exclusive exhibits that may be considered.


source: Caselaw Access Project

author: Judge Tiffany G. Chase

license: Public Domain

text:
    Christopher CAUSEY, Sr. and Lynette Muse, Individually and as Natural Parents of Christopher Causey, Jr. and Priscilla Hopkins v. NEW ORLEANS REGIONAL TRANSIT AUTHORITY and Veolia Transportation Services, Inc.
    NO. 2018-CA-0983
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2019
    John Paul Massicot, LAW OFFICE OF JOHN PAUL MASSICOT, LLC, 2800 Veterans Blvd., Suite 257, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Michael J. Hall, Jonique Martin Hall, Law Office of Michael J. Hall, L.L.C., 1010 Common Street, Suite 2340, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

This is a tort action arising out of an incident which occurred while plaintiffs were passengers on a bus operated by the New Orleans Regional Transit Authority (hereinafter "RTA"). The trial court found plaintiffs failed to meet their burden of proof in establishing that defendants were negligent and liable for their injuries. After consideration of the record before this Court, and the applicable law, we affirm the judgment of the trial court.

Facts and Procedural History

Plaintiffs Christopher Causey, Sr., Lynette Muse, Christopher Causey, Jr. and Priscilla Hopkins were passengers on a RTA bus traveling on Williams Boulevard in Jefferson Parish. The bus was being driven by RTA employee, Quelton Broussard (hereinafter "Mr. Broussard"). While proceeding on the route, Mr. Broussard suddenly applied his brakes. Plaintiffs filed a petition for damages alleging the bus driver suddenly and unnecessarily applied brakes, causing plaintiffs to be injured. Mr. Causey maintained he injured his back and leg when Ms. Hopkins fell on his right leg causing him to hit his leg against the support pole on the bus. Ms. Hopkins alleged she injured her back, spine, and additional body parts and suffered from headaches as a result of being ejected from her seat. Ms. Muse asserted she injured her wrist, neck, face, and back and suffered from headaches as a result of being ejected from her seat and hitting another seat. Lastly, plaintiffs alleged Mr. Causey and Ms. Muse's minor son, Christopher Causey, Jr., injured his head and chest as a result of striking his head against the seat. RTA maintained that the sudden brake was a result of Mr. Broussard's attempt to avoid a collision with another vehicle crossing in front of the bus thus, creating a sudden emergency situation. As such, RTA denied negligence on its part.

Prior to trial, plaintiffs filed a motion in limine for an adverse presumption arguing RTA failed to properly preserve video footage from the bus which would have depicted the incident at issue. The trial court granted the motion finding that RTA was negligent in the handling of the video footage, thus determining that an adverse presumption was warranted. RTA sought supervisory review of the ruling with this Court, which was denied.

A bench trial was held on July 13, 2017. By amended judgment dated July 18, 2018, the trial court found that plaintiffs failed to establish, by a preponderance of the evidence, that RTA was negligent and liable for plaintiffs' injuries. This appeal followed.

Discussion

This Court reviews factual findings of the trial court under a manifest error standard of review. In order to reverse the findings of the trial court, we must determine that the finding was clearly wrong and not based on a reasonable factual basis. Rabalais v. Nash , 2006-0999, p. 4 (La. 3/9/07), 952 So.2d 653,657.

Plaintiffs assert that the trial court's ruling was in error based on the evidence offered coupled with the grant of their motion in limine for an adverse presumption. At the onset, we note that although an adverse presumption regarding the video footage of the bus has been applied, that presumption does not end the causation inquiry. See Jones v. Trailor , 1993-2144 (La.App. 4 Cir. 4/28/94), 636 So.2d 1112, 1118. The plaintiff is nonetheless tasked with proving negligence on the part of the defendant by a preponderance of the evidence. Id. The trial court determined that the plaintiffs' failed to meet their burden of proof. We find no error in the trial court's decision.

The central issue before this Court is whether plaintiffs have proven, by a preponderance of the evidence, that the bus driver's conduct was negligent and the cause of their injuries. In order to prove negligence a duty/risk analysis is employed.

Marshall v. Jazz Casino Co. , 2015-1192, p. 6 (La.App. 4 Cir. 6/29/16), 197 So.3d 316, 320. "Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached." LeJeune v. Union Pacific R.R. , 97-1843, p. 6 (La. 4/14/98), 712 So.2d 491, 494. All elements must be affirmatively answered in order for a plaintiff to recover. Id. The crux of plaintiffs' argument rests with whether Mr. Broussard's conduct was the cause in fact of their injuries. As such, we focus on the causation element of the duty/risk analysis.

Neither party disagrees that Mr. Broussard suddenly applied the brakes while operating the bus. However, the cause of the sudden braking is disputed. Plaintiffs' contend that Mr. Broussard attempted to deviate from the route to retrieve a passenger he inadvertently passed up. He then suddenly hit the brakes in an attempt to make a U-turn. Mr. Causey testified that he was sitting in the lateral seats on the bus, looking to his right and had a view of the front window in front of the driver's seat. Although he did not specifically see what caused Mr. Broussard to suddenly brake, Mr. Causey testified that the sudden brake had to be the result of Mr. Broussard making a U-turn to retrieve a passenger he passed up at a bus stop. Ms. Muse testified that she was seated between her son and Mr. Causey in the lateral seats but, witnessed Mr. Broussard make the U-turn after the incident. She provided that she was unaware as to why Mr. Broussard hit his brakes. Ms. Hopkins testified that she was sitting in the last row of the bus facing the front. She observed a vehicle directly in front of the bus traveling in the same lane. Ms. Hopkins testified that the vehicle was always in front of the bus and never ventured from the left to cross in front of the bus as RTA maintains.

Conversely, RTA maintains that Mr. Broussard's sudden brake was a result of his attempt to avoid colliding with another vehicle crossing in front of the bus thus, the sudden emergency doctrine is applicable. The sudden emergency doctrine provides that "a driver without sufficient time to weigh all the circumstances and whose actions did not contribute to the emergency cannot be assessed with negligence...." Coffey v. Mushatt , 2003-0232, p. 4 (La.App. 4 Cir. 10/1/03), 859 So.2d 727, 730. The sudden emergency doctrine is applicable as long as the driver saw a potential accident about to occur and took appropriate action. Id. at 731. Mr. Broussard testified that the sudden brake was a result of a vehicle in the left lane attempting to cross in front of the bus to enter a parking lot located to the right of the bus. Plaintiffs dispute that another vehicle was the cause of the incident.

Plaintiffs also note that, on the day of the incident, Mr. Broussard never asked if anyone was injured, nor did he stop the bus to check on the passengers. However, Mr. Broussard testified that no one ever expressed to him that they were injured. He further testified that, prior to retirement, he was a bus driver for RTA for twenty-five years and is well versed on accident/incident protocol. Mr. Broussard noted that in any sudden brake situation it was protocol for him to inquire if any passengers were injured and then report the incident. He provided that after the sudden brake he asked if anyone was injured and no one responded. He explained that he notified the dispatcher that there was a hard braking incident and completed a report upon conclusion of his shift.

Applying a manifest error standard of review, it is not the role of this Court to reverse the factual findings of a trial court unless it is determined that a reasonable basis does not exist for the trial court's factual determinations and that the trial court's findings were clearly wrong. Waters v. Oliver , 2016-1262, p. 6 (La.App. 4 Cir. 6/22/17), 223 So.3d 37, 43. The trial court weighed the evidence presented and ultimately determined that plaintiffs failed to establish, by a preponderance of the evidence, that Mr. Broussard's actions were negligent. Based on the record before this Court, we do not find that the trial court's finding was not based on a reasonable factual basis. Mr. Broussard consistently testified that the cause of the sudden brake was his attempt to avoid colliding with another vehicle. Additionally, he maintained that after the sudden brake he did not receive a response from any of the passengers after inquiring whether anyone was injured. Although Mr. Causey testified that the cause of the sudden brake was Mr. Broussard's attempt to deviate from the route and make a U-turn, his conclusion is based on observations made after the sudden brake incident occurred. Additionally, Ms. Muse testified that she was unaware as to why Mr. Broussard suddenly applied the brakes. Neither party witnessed what led to the sudden brake. Although Ms. Hopkins testified that she did observe a vehicle traveling in front of the bus that never crossed lanes, she also testified that she was not constantly looking toward the front of the bus. She admitted that she was at times looking around and down at her phone.

The exact cause behind the sudden brake was not definitively established as there was conflicting testimony. Where there is conflicting testimony, the trial court's reasonable evaluations of credibility and inferences of fact should not be disturbed upon review. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). When two permissible views of the evidence exist, the fact finder's choice cannot be clearly wrong or manifestly erroneous. Menard v. Lafayette Ins. Co. , 2009-1869, p. 15 (La. 3/16/10), 31 So.3d 996, 1007. The trial court weighed the evidence presented and determined that Mr. Broussard's testimony was credible. "When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings." Waters , 2016-1262, p. 6, 223 So.3d at 44 (quoting Holden v. Zurich Am. Ins. Co. , 44,242, pp. 4-5 (La.App. 2 Cir. 5/13/09), 13 So.3d 221, 224 ). The record before this Court demonstrates that the trial court's findings are reasonably supported. Plaintiffs' conflicting testimony failed to establish that Mr. Broussard's conduct, in suddenly braking, was negligent. We therefore cannot find that the trial court was manifestly erroneous in determining that plaintiffs did not meet their evidentiary burden.

Conclusion

For the foregoing reasons we find the trial court was not manifestly erroneous in its ruling. The trial court is afforded great deference regarding factual determinations. The trial court weighed the evidence presented and determined that plaintiffs failed to establish that Mr. Broussard's conduct of suddenly braking was negligent. As such, we cannot conclude that the trial court's finding was not based on a reasonable factual basis. Therefore, we affirm the judgment of the trial court.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      For ease of discussion we will refer to the parties by their last name when referencing them individually and as "plaintiffs" when referencing them in the collective.

      Christopher Causey, Sr., et al v. New Orleans Regional Transit Authority, et al , 2017-C-0276.

      Plaintiffs initially appealed the trial court's July 18, 2017 judgment. However, this Court dismissed the appeal without prejudice and remanded the matter for further proceedings because the judgment failed to contain the necessary decretal language. Christopher Causey, Sr., et al v. New Orleans Regional Transit Authority, et al , 2017-CA-0922 (not designated for publication).


text:
    Jamal BURDS, Sr. v. Kristi SKIDMORE
    NO. 2019-C-0263
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2019
   Alice Grooms, LAW OFFICE OF ALICE J. GROOMS, LLC, One Galleria Boulevard, Suite 1900, Metairie, LA 70001, COUNSEL FOR DEFENDANT/RELATOR

Stephen Rue, STEPHEN RUE 7ASSOCIATES, LLC, 3309 Williams Boulevard, Kenner, LA 70065, COUNSEL FOR PLAINTIFF/RESPONDENT

(Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )

Judge Regina Bartholomew-Woods Relator, Kristi Skidmore ("Relator"), seeks expedited supervisory review of the trial court's ruling denying Relator's exceptions of lack of subject matter jurisdiction and forum non-conveniens. For the reasons that follow, we find that the trial court erred in denying Relator's exceptions of lack of subject matter jurisdiction and forum non-conveniens. Accordingly, we grant Relator's writ, and reverse the ruling of the trial court.

Factual and Procedural Background

J. B. , the minor child in the above-captioned matter, was born on July 5, 2010, in Georgia to Relator and Respondent, Jamal Burds, Sr. ("Respondent"). Except for a period of time between October 2011 and June 2012, Relator and the minor child have continuously lived in Georgia. On July 19, 2012, the trial court issued an Interim Order regarding the physical custody of the child; Relator was named domiciliary parent.

In September 2018, Relator filed for child support of the minor child through the State of Georgia's Office of Support Enforcement. On December 22, 2018, the minor child arrived in Louisiana for a scheduled holiday visit with Respondent. Relator asserts that she received, via U.S. mail, a "Petition for Ex Parte Order for Temporary Custody Pursuant to Louisiana Code of Civil Procedure Article 3945." On January 14, 2019, Relator received, via FedEx, a duplicate pleading and a hearing set for January 24, 2019. On January 22, 2019, Relator received, via service by a deputy, pleadings that she had not previously received, which included a hearing set for January 31, 2019. On January 3, 2019, the trial court denied Respondent's ex parte order of temporary custody, and set a contradictory hearing on the custody of the minor child. The trial court's denial of Respondent's ex parte order signals that the trial court did not find the minor child would suffer irreparable harm; therefore, this matter will now proceed as a regular (non-emergent) custody matter, which is currently set for April 4, 2019.

In response to the contradictory hearing, Relator filed exceptions of lack of subject matter jurisdiction and forum non-conveniens. After a hearing on February 19, 2019, the trial court denied Relator's exceptions of lack of subject matter jurisdiction and forum non-conveniens.

Further, the trial court set the custody matter for April 4, 2019.

It is from that ruling that Relator filed the instant application for expedited consideration of supervisory review.

Jurisdiction

Jurisdiction is a question of law and therefore is subject to de novo review. Sergeant v. DeRung , 2016-1203, p.3 (La. App. 4 Cir. 3/8/17), 213 So.3d 423, 425. When reviewing questions of law, appellate courts afford "no special weight to the findings of the district court, but exercises its constitutional duty to review questions of law and renders judgment on the record." Winston v. Millaud , 2005-0338, p. 5 (La. App. 4 Cir. 4/12/06), 930 So.2d 144, 150. Accordingly, "appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect." Id.

This Court has explained that La. C.C.P. art. 2 defines subject matter jurisdiction as "the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted." Sergeant v. DeRung , 2016-1203, p. 4 (La. App. 4 Cir. 3/8/17), 213 So.3d 423, 425. This Court further explained that, pursuant to La. C.C.P. art. 10 A(5), a court has jurisdiction in "[a] proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state." Id. In determining jurisdiction in the context of child custody, we look to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which has been codified as La. R.S. 13:1801, et seq. Pursuant to La. R.S. 13:1813(A) :

A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child's home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820, and
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
(3) All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under R.S. 13:1819 or 1820; or
(4) No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.

"Before a court can even address [custody] issues, it must first determine if it has jurisdiction to do so." Baxter v. Baxter, 2015-0085, p. 15 (La. App. 4 Cir. 6/24/15), 171 So.3d 1159, 1168, citing Melinda H. Eizten, et al., Family Law: Parent and Child, 56 SMU L.Rev. 1707, 1730 (2003). The "home state of the child" is defined in La. R.S. 13:1802 7(A), in pertinent part, as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." In her application for expedited supervisory review, Relator asserts that the minor child was born in Georgia and has resided in Georgia consistently for six and one-half years with Relator, the domiciliary parent. Further, the minor child resided, uninterrupted, in Georgia for six and one-half years prior to the filing of Respondent's petition for ex parte order of temporary custody. Therefore, Georgia is the minor child's home state.

The trial court erroneously reasoned that the 2012 Interim Order established exclusive, continuing jurisdiction. However, a temporary, interim Order is not an "initial determination of custody" as contemplated under the UCCJEA, because it is not a considered decree, a consent judgment or a final judgment. Further, there is no indication that the trial court considered the "best interests of the child" when rendering the interim Order, which is legally necessary in making custody determinations in Louisiana. See O'Neal v. Addis, 52-377, pp. 8-9 (La. App. 2 Cir. 9/26/18), 256 So.3d 493, 499 stating that "the court must consider all relevant factors in determining the best interest of the child when making a child custody determination." This court has stated that the "[a]pplication of the best interest of the child standard-codified in La. C.C. arts. 131 and 134 -requires a fact intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented." Lewis v. Lewis, 2018-0378, p. 3 (La. App. 4 Cir. 10/3/18), 255 So.3d 1216, 1219. Notwithstanding the interim Order and due to the aforementioned jurisprudential authorities, we find that under the UCCJEA jurisdiction is not proper in Louisiana, because jurisdiction was never divested from Georgia, the state where the minor had resided uninterrupted for six months prior to the filing of the instant verified petition.

Forum Non-Conveniens

In the context of child custody, La. R.S. 13:1819 provides:

A. A court of this state which has jurisdiction under this Act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
B. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(2) The length of time the child has resided outside this state.
(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
(4) The relative financial circumstances of the parties.
(5) Any agreement of the parties as to which state should assume jurisdiction.
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
C. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
D. A court of this state may decline to exercise its jurisdiction under this Act if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

In Wootton v. Wootton , 49,00, p. 1 (La. App. 2 Cir. 5/14/14), 138 So.3d 1253, 1254, the Second Circuit looked to Tabuchi v. Lingo , 588 So.2d 795 (La. Ct. App.1991) in which a father filed for custody of the minor child once the minor child arrived in Louisiana to visit the father. Wotton , 49, 001, 138 So.3d at 1260. The trial court denied the mother's exceptions of lack of subject matter jurisdiction and forum non-conveniens. Id. On appeal, the appellate court reversed the trial court's rulings denying the mother's exceptions, and found that because the minor child had lived in Missouri for six years, home state jurisdiction was no longer vested in Louisiana; further, Missouri had the most significant connection with the minor child. Id. Similarly, in the instant matter, at the time the petition for custody was filed with the district court, the minor child had lived in Georgia for six and one-half years. Accordingly, Georgia is the minor child's home state, has the most significant connections with the minor child, and is the most convenient forum to litigate the custody of the minor child.

CONCLUSION

For the aforementioned reasons, we find that the trial court erred in denying Relator's exceptions of lack of subject matter jurisdiction and forum non-conveniens. Accordingly, the writ is GRANTED , and the ruling of the trial court is REVERSED .

WRIT GRANTED; REVERSED

      In this opinion, the initials, rather than the full name, of the minor child are used to protect and maintain the privacy of the minor child involved in this proceeding. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2.

      The Interim Order did not address the best interest of the child factors pursuant to La. C.C.P. art. 134.

      The record reflects that Respondent filed his petition on December 28, 2018.

      A 2012 revision comment to La. R.S. 9:355.16 provides that "[i]n an initial custody determination, the court will generally consider the factors concerning best interest of the child set out in Civil Code Art. 134."


author: GRAVOIS, J.

text:
    AMERICAN MULTI-CINEMA, INC. a/k/a AMC Theaters v. Newell NORMAND, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson
    NO. 18-CA-487
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, AMERICAN MULTI-CINEMA, INC. A/K/A AMC THEATERS, Jaye A. Calhoun, New Orleans, Linda S. Akchin, William J. Kolarik, II, Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLANT, NEWELL NORMAND SHERIFF AND EX-OFFICIO TAX COLLECTOR, JEFFERSON PARISH AND JEFFERSON PARISH BUREAU OF REVENUE AND TAXATION, Kenneth C. Fonte, Metairie
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   GRAVOIS, J.

Appellant, Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, appeals a judgment of a Louisiana Board of Tax Appeals judge which granted a motion for summary judgment filed by American Multi-Cinema, Inc., a/k/a AMC Theaters, finding that the annual membership fees for AMC's Stubs Rewards Program are not subject to Jefferson Parish sales taxes because those fees are not a taxable "sale of service" for purposes of La. R.S. 47:301(14)(b)(i)(aa). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

AMC Theaters is a business headquartered in Leawood, Kansas, operating movie theaters nationwide, with three locations in Jefferson Parish. Pertinent to this case, on April 1, 2011, AMC introduced a loyalty rewards program to its patrons called the "Stubs Rewards Program," which allows those patrons who purchase a Stubs Rewards membership for $ 12 per year to accrue "virtual rewards" on the purchases of goods and services at the theaters. For every $ 100 Stubs Rewards members spend on goods and services at AMC, they accrue a virtual reward of $ 10 that they can use toward the future purchase of goods and services at the theaters. Stubs Rewards members also get free upgrades on fountain drinks and popcorn and waiver of certain online ticketing fees.

On June 29, 2015, the Sheriff commenced an audit of AMC's three Jefferson Parish locations for sales/use taxes, for the audit period of June 1, 2011 through May 31, 2015. In its November 2, 2015 audit reports, the Sheriff determined that AMC owed sales taxes on both the sale and the renewal of the membership fees in its Stubs Rewards Program. On December 23, 2015, the Sheriff issued a "Notice of Delinquent Taxes - Formal Assessment" to AMC for each of its Jefferson Parish theater locations, noting the amount of taxes due and notifying AMC that it had thirty calendar days from the date of the notice to appeal to the Board of Tax Appeals for redetermination of the assessments.

Thereafter, AMC filed a "Petition for Redetermination of Formal Assessment" with the Board of Tax Appeals, arguing that the sale of memberships in the Stubs Rewards Program does not constitute the purchase of a taxable service. Following motion practice and discovery, the parties filed cross-motions for summary judgment. After a hearing on the cross-motions for summary judgment, the Board of Tax Appeals judge rendered a written judgment on March 12, 2018 granting AMC's motion for summary judgment. In his judgment, considering the cross-motions for summary judgment, the Board of Tax Appeals judge found that there was no genuine issue of material fact that the annual fees for membership in AMC's Stubs Rewards Program are not subject to Jefferson Parish sales taxes because those fees are not for the sales of tangible personal property or for sales of any taxable services. Further, there was no genuine issue of material fact that those fees are not for admissions to places of amusement, and are not for "the furnishing, for dues, fees, or other consideration, of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities" for purposes of La. R.S. 47:301(14)(b)(i)(aa). Additionally, the Board of Tax Appeals judge found that the assessments that were issued on December 23, 2015 were made in error and no additional sales and/or use taxes, penalty, or interest was owed by AMC. This timely appeal followed.

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). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co. , 08-1491 (La. 4/3/09), 9 So.3d 780, 784.

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).

Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co. , 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger , 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 352 ; Sarasino v. State through Department of Public Safety and Corrections , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 928. The 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. Muller v. Carrier Corp. , 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Sheriff argues that the Board of Tax Appeals judge erred when he ruled that AMC's sales of the Stubs Rewards Program memberships are not taxable services pursuant to La. R.S. 47:301(14)(b)(i)(aa). The Sheriff contends that the sales of the memberships and the annual renewals thereof are taxable services because the memberships provide the privilege of access to clubs and the privilege of access to or the use of an amusement and entertainment facility. According to the Sheriff, the Stubs Rewards Program is a "club" because participants must be members to receive benefits and are organized for the common purpose of enjoying access to the benefits of membership not available to the general public. The Sheriff also argues that although not exclusive, the Stubs Rewards Program membership provides members with financial and physical benefits of access to and use of the theater facilities not available to non-members.

Taxing statutes must be strictly construed against the taxing authority. Goudchaux/Maison Blanche, Inc. v. Broussard , 590 So.2d 1159, 1161 (La. 1991). Where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is adopted. Id. ; Cleco Evangeline, LLC v. La. Tax Comm'n , 01-2162 (La. 4/3/02), 813 So.2d 351, 356.

Furthermore, words defining a thing to be taxed should not be extended beyond their clear import. Cleco , 813 So.2d at 355. Absent evidence to the contrary, the language of the statute itself must clearly and unambiguously express the intent to apply to the property in question. Unless the words imposing the tax are expressly in the statute, the tax cannot be imposed. Id.

La. R.S. 47:301(14)(b)(i)(aa) defines "sales of services" to mean and include:

The sale of admissions to places of amusement, to athletic entertainment other than that of schools, colleges, and universities, and recreational events, and the furnishing, for dues, fees, or other consideration of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities. (Emphasis added.)

The Sheriff contends that the Stubs Rewards Program is a "club" within the meaning of La. R.S. 47:301(14)(b)(i)(aa) and as defined in Wal-Mart Stores, Inc. v. Fitch , 36,762 (La. App. 2 Cir. 1/29/03), 836 So.2d 1155, writ denied , 03-0593 (La. 4/25/03), 842 So.2d 411. In Wal-Mart Stores, Inc. , the Second Circuit considered whether memberships to Sam's Clubs were taxable services within the scope and purpose of La. R.S. 47:301(14)(b)(i)(aa). The court found the definition of "club" to be "a group of people organized for a common purpose." Id. at 1158, citing The American Heritage Dictionary of the English Language , Fourth Edition. The Sheriff maintains that the Stubs Rewards Program organizes itself as a "club" since participants must be members to receive benefits, and the program is organized for a common purpose-to enjoy access to the benefits of membership not available to the general public. The Sheriff contends that the statute does not require that the "club" be linked to a physical facility to make the sales of memberships a taxable service, again relying on Wal-mart Stores, Inc. , where the court found that the clause pertaining to the privilege of "access to clubs" was independent of the clause concerning the privilege of having access to or the use of certain types of facilities. Wal-mart Stores, Inc. , 836 So.2d at 1159-60.

In response, AMC argues that to determine the definition of the word "club" as used in the statute, it is necessary to look at the context in which it is used. Although AMC points out that the statute provides that membership fees for the privilege of "access to clubs" would be taxable, it contends that use of the phrase "access to clubs" shows that the statute contemplates that a physical location must be physically entered by an individual for the membership fees to be taxable.

Upon de novo review, we first find the present case distinguishable from Wal-mart Stores, Inc. In Wal-mart Stores, Inc. , after considering the definition of "club" to be "a group of people organized for a common purpose," the court noted that members of Sam's Clubs are recruited and organized into the business structure; their participation is vital to the business; a common purpose of the members is to have access to "a no frills place of business for making purchases of products sold for cheaper prices in bulk"; and through the membership fees, the members pay to have access to a special shopping facility that is not open to the general public. The court stated that although the members might not be acquainted with one another, or have designated times for meetings at the facility, this did not preclude their collective memberships from constituting a "club." Wal-Mart Stores, Inc. , 836 So.2d at 1158. Here, unlike a membership to Sam's Clubs, the Stubs Reward Program is not vital to AMC's business. Also, unlike Sam's Clubs where everyone is required to be a member to have access to and enjoy the benefits that Sam's Clubs provide to its members, members of the general public are not required to be members of AMC's Stubs Reward Program to gain access to or use of the movie theaters. AMC's movie theaters are open to the general public and access to the movie theaters is allowed when a movie ticket is purchased, rather than when a Stubs Rewards membership is purchased.

Further, the court in Wal-mart Stores, Inc. relied solely on the definition of "club." However, in order to determine the context in which the word "club" is used in the statute, it is necessary that we also consider the definition of "access." "Access" is defined as a "way of approach or entry" and a "right or opportunity to reach or use or visit; admittance." The Oxford American Desk Dictionary and Thesaurus , Second Edition, 2001. Considering these definitions, we find that the phrase "access to clubs" as used in this particular statute is not clear and unambiguous. Rather, there are multiple meanings that "access to clubs" could be interpreted to be, including as a "way of approach or entry" or "admittance" to a physical location (i.e. , the subject AMC theaters). Here, as noted above, it is undisputed that members of the general public are not required to purchase a Stubs Rewards Program membership to "approach" or gain "entry"

or "admittance" to the subject theaters. Again, taxing statutes must be strictly construed against the taxing authority; where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is to be adopted. Goudchaux/Maison Blanche, Inc. , supra . Considering that there is ambiguity surrounding the meaning of "access to clubs" in the subject statute, we must adopt construction of the statute favorable to the taxpayer.

The Sheriff also argues that although Stubs Rewards members do not enjoy exclusive access to or use of AMC's theaters, they are provided with financial and physical benefits of access to and use of the theater facilities that aren't available to non-members. Although we recognize that Stubs Rewards members are potentially benefited by their membership in the Stubs Rewards Program with concessions upgrades, virtual rewards, or waiver of online fees (if and when they actually purchase a ticket or a concession item), we do not find that the member's ability to receive those benefits means that payment of the Stubs Rewards Program membership fee is paying for the "access to or use" of the subject theaters. Rather, we find that the language of the statute does not clearly and unambiguously express the intent to apply the statute to the AMC Stubs Rewards membership fees present in this case. Cleco , supra .

For the foregoing reasons, we find that the Board of Tax Appeals judge did not err in granting AMC's motion for summary judgment, and, as such, did not err in finding that the annual membership fees for AMC's Stubs Rewards Program are not a taxable "sale of service" for purposes of La. R.S. 47:301(14)(b)(i)(aa). This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Sheriff argues that if AMC's Petition for Redetermination was filed on January 27, 2016, as shown on the filing stamp mark on the first page of the petition, then it was filed late because the filing occurred more than thirty calendar days from the date of notice of the formal assessment. Consequently, the Sheriff argues, the Board of Tax Appeals judge had no jurisdiction to redetermine the assessments, his decision thereon must be vacated, and the petition must be dismissed for lack of subject matter jurisdiction.

La. R.S. 47:1431(C) provides:

If a taxpayer disputes an assessment made by a local collector, or a local collector's action or failure to act on a claim for a refund or credit of an overpayment, the taxpayer may appeal to the board for a redetermination of the assessment or a determination of the alleged overpayment, by filing a petition with the board as provided in R.S. 47:337.51, 337.53, or 337.81.

La. R.S. 47:337.51(A)(1)(b) provides that a tax collector shall send a notice of the assessment to the taxpayer and shall inform the taxpayer that he has "thirty calendar days from the date of notice" to appeal to the Board of Tax Appeals for redetermination of the assessment.

In the present case, the Sheriff issued a "Notice of Delinquent Taxes - Formal Assessment" to each of AMC's Jefferson Parish theaters on December 23, 2015. A supplement to the record reveals that AMC "fax filed" its Petition for Redetermination on January 22, 2016, i.e. , within thirty calendar days from the date of the notice of assessment, in accordance with the Board of Tax Appeals'

rules. Accordingly, we find that AMC's Petition for Redetermination was timely filed. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, because no genuine issue of material fact remains and AMC is entitled to judgment as a matter of law, the judgment of the Board of Tax Appeals judge which granted AMC's motion for summary judgment, finding that the annual membership fees for AMC's Stubs Rewards Program are not subject to Jefferson Parish sales taxes because those fees are not a taxable "sale of service" for purposes of La. R.S. 47:301(14)(b)(i)(aa), is affirmed.

AFFIRMED

      At the hearing of this matter before the Board of Tax Appeals judge, the parties noted that Mr. Normand was no longer Sheriff, having been succeeded by Sheriff Joseph Lopinto. However, the record fails to show that a formal substitution of parties was made.

      These locations are in Elmwood, Clearview Mall, and on the Westbank.

      Goods and services include movie tickets and concessions.

      Stubs Rewards expired in 90 days from the date of issuance. Other restrictions applied that are not pertinent to the issue in this case.

      Occupational license tax and chain store tax were also included in this audit.

      The record contains three audit reports, one for each theater location in the Parish.

      While the judgment did not explicitly deny the Sheriff's motion for summary judgment, it did consider the cross-motions for summary judgment in granting AMC's motion for summary judgment, and the granting of AMC's motion for summary judgment resolved the merits of the case.

      La. R.S. 47:1435 provides that the courts of appeal shall have exclusive jurisdiction to review the decisions or judgments of the Board of Tax Appeals.

      Rule 3.1, "Fax Filing" of the Board of Tax Appeals, State of Louisiana, provides: The Board will accept pleadings (not Exhibits for trial) by facsimile only as provided for herein.
      Within seven days, exclusive of legal holidays, after the Board has received the facsimile transmission, the Board must receive all of the following from the party filing by facsimile:
      1. The original signed documents that were fax filed, together with the required six conformed copies.
      2. The applicable filing fee, if any, under Rule 16.
      3. A fax transmission fee of five dollars per page faxed.
      If the party complies with all of the requirements of this Rule, the filing shall be deemed complete at the time that the facsimile transmission is received by the Board, but if the party fails to comply with all of these requirements then the facsimile filing shall have no force or effect.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Ronji J. JENKINS, Jr.
    NO. 18-KA-645
    Court of Appeal of Louisiana, Fifth Circuit.
    April 03, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, Douglas W. Freese, Gretna, Lindsay L. Truhe
    COUNSEL FOR DEFENDANT/APPELLANT, RONJI J. JENKINS, JR., Cynthia K. Meyer, Coeur d'Alene
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Ronji Jenkins, Jr., appeals his conviction and sentence for obscenity. The sole issue raised on appeal is whether the trial court abused its discretion in allowing the admission of other crimes evidence at trial. While we agree with defendant's argument that the evidence was improperly admitted, we find that its admission was harmless and does not require reversal of defendant's conviction. Accordingly, for the reasons that follow, we affirm defendant's conviction and sentence and remand the matter for the correction of the uniform commitment order as noted herein.

PROCEDURAL HISTORY

On November 28, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with obscenity, in violation of La. R.S. 14:106. Defendant pled not guilty at his arraignment, and the matter subsequently proceeded to trial before a six-person jury on January 3, 2018. After considering the evidence presented, the jury found defendant guilty as charged. On March 5, 2018, the trial court denied defendant's motion for new trial, and after a waiver of delays, sentenced defendant to three years imprisonment at hard labor.

Thereafter, on March 8, 2018, the court conducted a hearing on the multiple offender bill of information previously filed by the State. At the conclusion of the hearing, the trial court found defendant to be a third felony offender, vacated defendant's original sentence, and sentenced him, pursuant to La. R.S. 15:529.1, to six years imprisonment in the custody of the Department of Corrections without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

In the present case, the bill of information alleged that defendant committed obscenity by exposing his genitals in the Jefferson Parish Correctional Center. Two different versions of this incident were presented at trial.

According to Yashonda Lee, a correctional officer at the Jefferson Parish Correctional Center, she saw defendant masturbating on October 27, 2016, which was her first day on the job. Officer Lee explained that on the morning of the incident, she was inside the guard booth and was able to see defendant's cell from her location. As she was visually surveying the pod area, she felt someone staring at her. Officer Lee looked up and observed defendant standing between his toilet and the end of his bunk "stroking his fully eject [sic] penis in an up and down motion and looking, like literally staring me down." Officer Lee gestured towards defendant to stop; however, defendant continued masturbating while looking at her.

During her testimony, Officer Lee confirmed that defendant was not attempting to hide his genitals from view in any way, that it was no accident that she was able to see him masturbate, and that she found defendant's actions offensive. Officer Lee explained that she reported the occurrence to the officer in charge of her training, who called the incident in but did not turn around to see what defendant was doing. By the time the officers responded to defendant's cell, he had pulled up his jumpsuit and was in his bed as if nothing had happened.

In contrast to the testimony of Officer Lee, defendant denied masturbating in front of her. Rather, defendant explained that he woke up with a semi-erect penis and proceeded to the toilet to urinate. Defendant acknowledged that he and Officer Lee could see each other while he was standing at the toilet but insisted he was not watching her and did not make eye contact. After he was finished urinating, he had "to shake [his penis] before" he "put it up." He then returned to his bunk and laid down at which point an officer came and removed him from his cell.

ADMISSION OF OTHER CRIMES EVIDENCE

In his sole assignment of error, defendant challenges the trial court's admission of other crimes evidence at trial. He specifically contends that the trial court erred in allowing the State to introduce evidence regarding his 2008 conviction for battery of a correctional facility employee because it was unduly prejudicial and probative of nothing at issue in defendant's trial on the obscenity charge.

Prior to trial, the State filed a notice pursuant to La. C.E. art. 404(B) of its intent to introduce at trial evidence that on December 8, 2007, defendant "participated in a physical attack upon a correctional officer during which the officer was beaten and spit upon by this defendant and a second perpetrator," and that as a result of his participation in this incident, defendant was convicted of battery of a correctional facility employee. In its notice, the State alleged that this prior incident illustrated defendant's lack of respect and active disdain for correctional officers. The State then asserted that this evidence was being offered to establish defendant's intent, absence of mistake or accident, and guilty knowledge in this case which involved defendant behaving in a patently offensive manner to a female correctional officer.

At the subsequent hearing on the State's notice, the State argued that the evidence was being offered to show defendant's intent to act in an offensive manner in front of the guard in the instant case and his lack of respect for the authority of those who work in the jail. In response, defense counsel argued the instant offense and the battery incident, which had occurred ten years prior at a time when defendant was seventeen years old, were factually unrelated and did not show an intent to commit the crime of obscenity in this case. Defense counsel further argued that the prejudicial effect of the evidence outweighed any probative value. Following the arguments of counsel, the trial court granted the State's motion "[b]ased upon the argument of counsel, the Court's reading of 404(B) and the case law." Pursuant to this ruling, the State presented evidence of defendant's 2008 battery of a correctional facility employee conviction at trial.

In his sole assignment of error, defendant argues that the nearly decade old conviction obtained when he was seventeen years old had nothing in common with the instant charge and that its admission was extremely prejudicial and not probative. He asserts that the evidence of the battery conviction was admitted for the improper purpose of portraying him in the worst possible light and to show that he is of bad character and acted in conformity therewith on the obscenity charge. Defendant concludes that the erroneous admission of the prior conviction was not harmless as it is impossible to find the guilty verdict was surely unattributable to the admission of the battery conviction, and therefore, his conviction for obscenity should be reversed.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1) ; State v. Prieur , 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Garcie , 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1284. Evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad acts. La. C.E. art. 404(B)(1) ; State v. Lawson , 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Garcie , 242 So.3d at 1284. Moreover, the probative value of the extraneous evidence must outweigh the prejudicial effect. La. C.E. art. 403. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La C.E. art 404(B)(1) will not be disturbed. State v. Maize , 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 649, writ denied , 17-1265 (La. 4/27/18), 241 So.3d 306.

In the present case, defendant was convicted of obscenity. That offense is defined, in pertinent part, as the intentional exposure of the genitals in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive. See La. R.S. 14:106(A)(1). Based on the elements that the State had to prove in the instant case, we find that the trial court abused its discretion in allowing the admission of evidence relating to defendant's 2008 battery of a correctional facility employee conviction at trial. This prior crime, which involved spitting on a correctional officer, occurred approximately nine years prior to the instant offense, was not of a sexual nature, was factually unrelated, and was not relevant to defendant's intent to commit obscenity.

However, although the trial court abused its discretion in admitting this evidence, the erroneous admission of other crimes evidence is subject to a harmless error analysis. An error is harmless when the verdict is surely unattributable to the error. State v. Williams , 05-318 (La. App. 5 Cir. 1/17/06), 921 So.2d 1033, 1036, writ denied , 06-0973 (La. 11/3/06), 940 So.2d 654. In this case, the jury's verdict was surely unattributable to the alleged error insofar as the State presented sufficient evidence of guilt at trial without consideration of the other crimes evidence.

In the instant case, Officer Lee testified that on October 27, 2016, while employed as a correctional officer at the Jefferson Parish Correctional Center, she observed defendant, an inmate at the jail, intentionally masturbating in front of her. Specifically, Officer Lee testified that as she was visually surveying the pod area, she felt that someone was staring at her. When she turned towards defendant's cell, she had an unobstructed view of defendant staring at her "stroking his fully eject [sic] penis in an up and down motion." According to Officer Lee, defendant maintained eye contact the entire time while continuing to masturbate, and despite having been instructed by her to stop. She further testified that she found defendant's actions to be offensive.

Additionally, while defendant testified that he was not masturbating but merely urinating when Officer Lee observed him, it is clear the jury chose to believe Officer Lee's version of the events. The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Brown , 04-1113 (La. App. 5 Cir. 3/29/05), 901 So.2d 492, 497. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied , 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

Accordingly, based on the foregoing, we find that the trial court's improper admission of the other crimes evidence was harmless and does not require reversal of defendant's conviction.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, according to 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). Our review of the record reveals incorrect dates in the March 8, 2018 uniform commitment order that require correction.

Specifically, the "disposition date," multiple offender sentence date, and date the original sentence was vacated as set forth in the uniform commitment order related to the multiple bill are incorrect. The multiple bill uniform commitment order reflects a "disposition" date of March 5, 2018; however, defendant was found guilty of obscenity on January 3, 2018, and adjudicated a third felony offender on March 8, 2018. Additionally, the multiple bill uniform commitment order indicates that defendant's original sentence was vacated and his enhanced multiple offender sentence imposed on March 5, 2018; however, defendant's original sentence was vacated, and he was re-sentenced as a multiple offender on March 8, 2018. In accordance with established procedure, we remand this case to the district court with instructions to correct the multiple bill uniform commitment order to reflect the proper dates. We further order the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform commitment order to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

Accordingly, for the reasons set forth herein, defendant's conviction and enhanced sentence for obscenity are affirmed. The matter is remanded for correction of the March 8, 2018 uniform commitment order.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      On May 25, 2018, the trial court granted defendant's motion for an out-of-time appeal.

      At the time of the incident, defendant was wearing a prison jumpsuit, which was pulled down below his waist. Officer Lee acknowledged that the jumpsuit had to be pulled down in order for inmates to use the toilet.

      The minute entry attached as an exhibit to the State's "Article 404(B) Notice" reflects that on March 31, 2008, defendant pled guilty to battery of a correctional facility employee, in violation of La. R.S. 14:34.5.

      The record also reflects that the trial court gave a limiting instruction to the jury regarding the limited purpose it was to consider the other crimes evidence at the time it read the jury instructions.