author: KEATY, Judge.

text:
    Amaleeta O'NEAL, et al. v. FOREMOST INSURANCE COMPANY, et al.
    18-599 18-510
    Court of Appeal of Louisiana, Third Circuit.
    February 13, 2019
    Michael L. Glass, Attorney at Law, 1733 White Street, Alexandria, Louisiana 71301, (318) 484-2917, Counsel for Plaintiffs/Appellees: Amaleeta O'Neal, Jeffery O'Neal
    Daniel G. Brenner, Christina S. Slay, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., Post Office Box 11590, Alexandria, Louisiana 71315-1590, (318) 445-8236, Counsel for Defendant/Appellant: RLN Investments, LLC
    Randall B. Keiser, Matthew L. Nowlin, Keiser Law Firm, P.L.C., Post Office Box 12358, Alexandria, Louisiana 71315-2358, (318) 443-6168, Counsel for Defendant/Appellee: Don Van Cleef
    Stacy Christopher Auzenne, Auzenne Law Firm, L.L.C., Post Office Box 11817, Alexandria, Louisiana 71315-1817, (318) 880-0087, Counsel for Defendant/Appellee: Messina Realty, LLC
    Ashley E. Gilbert, CNA Coverage Litigation Group, One Galleria Boulevard, Suite 1502, Metairie, Louisiana 70001, (504) 841-5083, Counsel For Defendant/Appellee: Continental Casualty Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

RLN Investments, LLC, appeals the trial court's grant of a declaratory judgment in favor of Don Van Cleef on the issue of defense and indemnity. For the following reasons, the trial court's judgment is reversed, and this matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal involves the interpretation of a defense and indemnity clause in a property management agreement. For brevity, we hereby incorporate and adopt the facts and procedural history stated in the consolidated and companion case hereto, O'Neal v. Foremost Insurance Co. , 18-510 (La.App. 3 Cir. 2/13/19), 265 So.3d 846, 2019 WL 609491. In that case, we reversed and remanded the trial court's grant of summary judgment in favor of Messina Realty, L.L.C.

On appeal in this matter is the trial court's grant of Van Cleef's declaratory judgment. The record herein reveals multiple judgments were rendered regarding the trial court's grant of Van Cleef's declaratory judgment. Specifically, counsel for Van Cleef filed a proposed judgment that included both RLN Investments and Nation, individually. That judgment was signed by the trial court on February 20, 2018, and provides the following:

(1) During all times relevant to the above-referenced litigation, Don Van Cleef was acting within the course and scope of his employment with Messina Realty, LLC, in managing the property located at 207 Nation Road, Deville, Louisiana;
(2) That Don Van Cleef is entitled to defense and indemnity from RLN Investments, LLC and/or Ronald Nation pursuant to the Property Management Agreement between RLN Investments, LLC and Messina Realty, LLC, annexed as Exhibit "A" to this Judgment; and
(3) That the declaratory judgment filed by Don Van Cleef against Messina Realty, LLC is pretermitted as moot, based on the Court's ruling regarding indemnification and defense owed by RLN Investments, LLC and/or Ronald Nation to Don Van Cleef.

Another proposed judgment submitted by RLN Investments' counsel, which did not include Nation and designated it final and appealable, was signed by the trial court on February 23, 2018.

In light of the trial court's signing of two conflicting judgments, RLN Investments' counsel filed a Motion to Vacate the February 20, 2018 judgment. The hearing occurred on March 29, 2018, at which time the trial court, on its own motion, moved to vacate and strike from the record the February 23, 2018 judgment. Pursuant to the trial court's judgment rendered on April 11, 2018, it amended the judgment signed on February 20, 2018 to remove any reference to " 'and/or Ronald Nation.' "

Thereafter, RLN Investments filed an Application for Supervisory Writ seeking relief from the February 20, 2018 judgment. On May 1, 2018, this court denied the writ application, asserting that an adequate remedy exists by appeal as a judgment rendered on a Petition for Declaratory Judgment has the force and effect of a final judgment. O'Neal v. Foremost Ins. Co. , 18-274 (La.App. 3 Cir. 5/1/18) (unpublished writ). RLN Investments appealed.

On appeal, RLN Investments asserts the following assignments of error:

1. Whether the Honorable Lower Court abused its discretion in granting the Petition for Declaratory Judgment finding that Don Van Cleef, is entitled to defense and indemnity from RLN Investments, LLC, when the record demonstrated that Messina Realty, LLC, and/or its agent, Don Van Cleef, breached the Property Management Agreement between RLN Investments, LLC, and Messina Realty, LLC, thus rendering the indemnity clause therein void.
2. Whether the Honorable Lower Court abused its discretion in granting the Petition for Declaratory Judgment finding that Don Van Cleef, is entitled to defense and indemnity from RLN Investments, LLC, when the record demonstrated that there are questions concerning the knowledge of Messina Realty, LLC, or its agent, Van Cleef, about the alleged defective condition of the tree in question and their failure to take actions upon obtaining this knowledge, thereby, breaching the terms of the Property Management Agreement or acting negligently in the management of the property owned by RLN Investments, LLC.
3. Whether the indemnity clause in the Property Management Agreement encompasses the negligence of Messina Realty, LLC, and/or Don Van Cleef.

Van Cleef filed an Answer to Appeal on August 9, 2018, asserting the following: "If, and only if, the original Judgment is reversed, Van Cleef respectfully requests the Declaratory Judgment against Messina be granted and Messina be cast as vicariously liable for any and all actions of Van Cleef, in the event Judgment is rendered in favor of Plaintiff O'Neal." Both Van Cleef and RLN Investments filed appellate briefs, with Messina Realty adopting Van Cleef's appellate brief in connection with the instant appeal.

STANDARD OF REVIEW

In Campbell v. Evangeline Parish Police Jury , 14-1301, pp. 3-4 (La.App. 3 Cir. 5/6/15), 164 So.3d 408, 412, writ denied , 15-1067 (La. 9/11/15), 176 So.3d 1043, this court stated the following:

[T]he function of a declaratory judgment is to establish the rights of the parties or to express the court's opinion on a question of law without ordering any relief. MAPP Constr., LLC v. Amerisure Mut. Ins. Co. , 13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. "Trial courts are vested with wide discretion in deciding whether or not to grant or refuse declaratory relief." In re Interment of LoCicero , 05-1051, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 883, 886. However, where the judgment would terminate an uncertainty or controversy which gave rise to the proceeding, the trial court must render a declaratory judgment. Id. ; See also La.Code Civ.P. art. 1876. Accordingly, the appellate court is limited to a determination of whether the trial court abused its discretion in its grant of or refusal to render a declaratory judgment. Id.

DISCUSSION

For the reasons set forth in the companion and consolidated case hereto, O'Neal v. Foremost Insurance Company , 18-510 (La.App. 3 Cir. 2/13/19), 265 So.3d 846, 2019 WL 609491, the trial court's judgment granting Van Cleef's Petition for Declaratory Judgment is reversed, and this matter is remanded.

DECREE

For the above reasons, the trial court's judgment in favor Don Van Cleef is reversed. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Debra S. LENOX v. CENTRAL LOUISIANA SPOKES, LLC d/b/a Renegade Harley, et al.
    WCA 18-556
    Court of Appeal of Louisiana, Third Circuit.
    February 13, 2019
    George C. Gaiennie, III, Chris J. Roy, Sr., P.O. Box 7622, Alexandria, LA 71306, (318) 767-1114, COUNSEL FOR PLAINTIFF/APPELLANT: Debra S. Lenox
    John J. Rabalais, Matthew D. Crumhorn, Rabalais Unland, LLP, 1404 Greengate Drive, Suite 110, Covington, LA 70433, (985) 893-9900, COUNSEL FOR DEFENDANTS/APPELLEES: Zurich American Insurance Company, Central Louisiana Spokes, LLC D/B/A Renegade Harley
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   EZELL, Judge.

Debra Lenox appeals a judgment from the Office of Workers' Compensation which, granted summary judgment in favor of her employer, Central Louisiana Spokes, LLC, d/b/a Renegade Harley, and its workers' compensation insurer, Zurich American Insurance Company. The issue on appeal is whether there is a genuine issue of material fact as to whether Ms. Lenox's spinal infection was causally related to her work accident.

FACTS

Ms. Lenox went to work for Renegade Harley in Alexandria, Louisiana, in April 2014, as a store clerk/manager. On November 22, 2016, around lunchtime, Ms. Lenox went to the back to get a pair of boots for a customer. She located the boots about halfway down a shelf and bent over to get them. When she bent over, she experienced a weird sensation. She brought the boots to the customer and chatted with the customer for a while.

Ms. Lenox's husband came by the store to meet her for lunch. She told him that her back started "killing" her suddenly and pain was shooting down her right leg. She reported the incident to Gayle Stolzer, the human resources person at Renegade Harley. Ms. Stolzer told Ms. Lenox to go to Kisatchie Medical Center, a walk-in clinic, for treatment. A drug screen was performed, which was negative. She was diagnosed with lumbar strain and prescribed Ansaid and Flexeril. She then went home.

The next day, Ms. Lenox woke up in excruciating pain and could not get out of bed. An ambulance was called, and Ms. Lenox was taken to St. Francis Cabrini Hospital. A lumbar CT scan revealed changes at L4-5 and L5-S1, with a possible pars defect at L5. Dr. Gregory Dowd, a neurosurgeon, consulted on Ms. Lenox's case. He explained that a pars defect is a defect in the bony bridge connecting the front and back portions of the vertebral body. Dr. Dowd opined that the back and leg pain was suggestive of radiculopathy caused by a compressed nerve. He ordered an MRI, which was performed on November 25, 2016.

The MRI indicated degenerative disc disease and a small focal disc protrusion at L5-S1. Dr. Dowd testified that the disc protrusion at L5-S1 caused significant impression on the nerve at that level and was likely responsible for the right-sided lumbar radiculopathy. Ms. Lenox received an epidural steroid injection on November 27, 2016. During her stay at St. Francis Cabrini Hospital, Ms. Lenox developed shoulder pain, so a medical neurologist consulted on her case. That doctor opined that Ms. Lenox needed a rheumatology evaluation. She was discharged from the hospital on December 1, 2016.

Continuing to suffer with pain, Ms. Lenox was taken by ambulance and admitted to Rapides Regional Medical Center on December 3, 2016. Dr. Dowd's associate, Dr. Michael Drerup, saw Ms. Lenox. Dr. Drerup noted his concern for sepsis. An MRI was performed that day with similar findings as the first MRI. Another MRI was performed on December 9, 2016. This time it was performed with and without contrast. The MRI indicated evidence of discitis, osteomyelitis, and possible epidural abscess.

Dr. Dowd testified that Ms. Lenox developed an infection of the lumbar spine. She also demonstrated weakness in the form of foot drop. He stated that the infection caused left-sided compression whereas the original herniated disc caused right-sided compression. All issues were at the same L5-S1 level. Dr. Dowd performed surgery on December 11, 2016. Dr. Dowd testified that the surgery was targeted primarily to drain the infection and to decompress the affected nerve.

Ms. Lenox was discharged from Rapides Regional Medical Center on December 20, 2016. She was admitted to Christus Dubuis of Alexandria for long-term care due to the infection. On February 4, 2017, Ms. Lenox was discharged to St. Francis Cabrini Hospital for rehabilitation for two weeks before she went home.

On March 9, 2017, Ms. Lenox filed a disputed claim for compensation. She alleged that she did not receive wage benefits and medical treatment was not authorized. The Defendants filed a motion for summary judgment. They contended that they accepted the accident as compensable but only paid for medical treatment up to the time Ms. Lenox developed the spinal infection. The Defendants dispute that the spinal infection was causally related to the original work accident.

A hearing on the motion for summary judgment was held on April 2, 2018. The workers' compensation judge (WCJ) held that the spinal infection was not causally related to the accident and granted the Defendants' motion for summary judgment, dismissing Ms. Lenox's claim with prejudice. Ms. Lenox then filed the present appeal.

SUMMARY JUDGMENT

Ms. Lenox claims that the trial court erred in granting summary judgment to the Defendants. She argues that the law is so well-settled in this area and that she is entitled to recover from her employer even if her work-related injury was exacerbated by infection contracted during her treatment.

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). This court reviews a trial court's decision on a motion for summary judgment applying a de novo standard of review. Jackson v. City of New Orleans , 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. La.Code Civ.P. art. 966(D)(1). "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." Id.

"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.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue 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.

Jackson , 144 So.3d at 882.

The Defendants claim that there is no causal relationship between the infection and the work accident. It is Defendants' position that the causal link is only a "possible" one, which is not sufficient to meet Ms. Lenox's burden of proof.

The workers' compensation laws provide coverage to an employee for personal injury received by accident arising out of and in the course of employment. LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers' compensation statutory scheme. He must establish that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. See DeGruy v. Pala, Inc. , 525 So.2d 1124, 1130 (La.App. 1st Cir.), writ denied , 530 So.2d 568 (La.1988). Initially, a workers' compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem. , 508 So.2d 1381, 1383 (La.1987). Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. West v. Bayou Vista Manor, Inc. , 371 So.2d 1146, 1147 (La.1979). Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. DeGruy , 525 So.2d at 1132.
Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the reported accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. Peveto v. WHC Contractors , 93-1402 (La. 1/14/94), 630 So.2d 689, 691. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms.
Walton v. Normandy Village Homes Ass'n, Inc. , 475 So.2d 320, 324-25 (La.1985).
Although procedural rules are construed liberally in favor of workers' compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff's case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Buxton v. Iowa Police Department , 2009-0520 (La. 10/20/09), 23 So.3d 275, 283.

Welborn v. Thompson Const. , 15-1217, pp. 4-5 (La.App. 1 Cir. 2/26/16), 191 So.3d 1086, 1088-89 ; See also Hammond v. Fidelity & Cas. Co. of New York , 419 So.2d 829 (La.1982).

"[I]t is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover." Id. It is appropriate to consider medical testimony in the light of other nonmedical, credible evidence, such as a sequence of symptoms or events, in order to establish the probability that the disability was caused by a work accident. Id.

Both Ms. Lenox and the Defendants relied on Dr. Dowd's deposition testimony. Dr. Dowd testified that the sepsis infection could be caused by a urinary tract infection or untreated pneumonia, both of which Ms. Lenox developed during treatment. However, he stated that an epidural steroid injection could also cause an infection and that patients sometimes develop infections when they receive injections for medical treatment. Dr. Dowd further stated that it is difficult to determine what caused the infection. He further stated that when Ms. Lenox was discharged from St. Francis Cabrini Hospital, which was four days after the injection, she had an elevated sedimentation rate and white blood cell count. This is an indication of an early brewing infection. Dr. Dowd opined that Ms. Lenox was demonstrating signs of infection at the time she was discharged from St. Francis Cabrini Hospital that were not present when she was admitted.

Dr. Dowd further testified that Ms. Lenox's earlier MRIs after the accident did not show evidence of an infection. The later MRIs, which were with and without contrast, reveal the infection. Dr. Dowd agreed that this change demonstrated a chronological development that the infection developed during the course of her treatment. He specifically stated that he was of the opinion that she "developed new symptoms, signs and findings of infection during her treatment." He was also not aware of Ms. Lenox suffering with an infection before the accident.

The Defendants cite this court's case in Sweat v. Sams Air Conditioning Maintenance Service , 15-1100 (La.App. 3 Cir. 4/6/16), 188 So.3d 482, for the premise that a "possible" causal link to the accident is not sufficient to meet Ms. Lenox's burden of proof. We find that the evidence in the record in the present case is very different from the evidence in Sweat .

Mr. Sweat twisted his back while installing ductwork. When he went to the doctor, it was discovered he had an epidural abscess already present in his thoracic spine levels T3 to T7. The only evidence in the record was the testimony of Mr. Sweat's treating physician, Dr. Drerup. After reviewing the evidence, this court held that Dr. Drerup clearly stated, "several times, in several ways, that the infection that caused Mr. Sweat's abscess was not caused by trauma, injury, or strain. The abscess was caused by bacterial infection alone." Id. at 483-84.

Even if Ms. Lenox was predisposed to infection before the accident, the supreme court has stated:

The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee's disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident.

Hammond , 419 So.2d at 832.

In the present case, there is clear evidence that Ms. Lenox had no infection before the accident. Dr. Dowd testified that the infection developed during her stay at St. Francis Cabrini while she was being treated for her workplace injury. He further stated that it is possible that the epidural steroid injection she received to treat her workplace injury caused the infection. We find that there is a genuine issue of material fact as to whether Ms. Lenox's infection was contracted during her course of treatment for her workplace accident.

For these reasons, we reverse the judgment of the Office of Workers' Compensation granting summary judgment in favor of the Defendants and dismissing Ms. Lenox's workers' compensation claim. Costs of this appeal are assessed to Central Louisiana Spokes, LLC, d/b/a Renegade Harley, and its workers' compensation insurer, Zurich American Insurance Company. This case is remanded to the Office of Workers' Compensation for further proceedings.

REVERSED AND REMANDED .


text:
    STATE of Louisiana v. Paul KNATT
    18-595
    Court of Appeal of Louisiana, Third Circuit.
    February 13, 2019
    M. Bofill Duhe, District Attorney, Nicole Burke, W. Claire Howington, Assistant District Attorneys, 300 Iberia Street, Suite 200, New Iberia, Louisiana 70560, (337) 369-4420, Counsel for Appellee: State of Louisiana
    Harry Daniels, III, Daniels & Washington, 38167 Post Office Road, Prairieville, Louisiana 70769, (225) 346-6280, Counsel for Defendant/Appellant: Paul Knatt
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Defendant, Paul Knatt, appeals his conviction and sentence for manslaughter. For the following reasons, Defendant's conviction and sentence are affirmed.

FACTS & PROCEDURAL BACKGROUND

On September 1, 2011, Ridge Honore approached his cousin, Defendant herein, and asked a derogatory question. Both men began arguing, and Honore told Defendant, "You survived last time, but you won't survive this time." Honore returned to his truck, while Defendant went to his car and retrieved a gun. Defendant thereafter approached Honore, who was sitting inside of his truck with his infant child and shot Honore multiple times. Honore died. No one saw Honore with a weapon, and no weapon was found on his person or in his truck.

On December 16, 2011, Defendant was charged by bill of information with manslaughter, a violation of La.R.S. 14:31. The bill was thereafter nolle prossed because Defendant was charged by a bill of indictment with second degree murder, a violation of La.R.S. 14:30.1. A jury trial began on June 15, 2015, and ended in a mistrial on June 17, 2015. On September 11, 2017, Defendant's second jury trial commenced after which the jury returned a guilty verdict on the responsive verdict of manslaughter. Defendant was sentenced to serve fifteen years at hard labor. He filed a Motion to Reconsider Sentence, which the trial court denied. Defendant appealed.

On appeal, Defendant asserts the following assignments of error:

1. The Trial Court erred as a matter of law denying the Accused, Paul Knatt, of his Constitutional right to present a defense when it ruled that the Accused could not present evidence of the January 31, 2010, shooting to show his state of mind, at the time of the September 1, 2011, shooting until he provided a foundation under Louisiana Code of Evidence Article 404 A(2).
2. Did Paul Knatt present appreciable evidence of an overt act or hostile demonstration to allow [the] January 30, 2010 shooting into evidence.
3. The sentence imposed is excessive for this offense and this offender.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

II. First Assignment of Error

In his first assignment of error, Defendant contends the trial court erred as a matter of law by denying his constitutional right to present a defense when it ruled that he could not present evidence of the January 31, 2010 shooting to show his state of mind at the time of the September 1, 2011 shooting until he provided a foundation under La.Code Evid. art. 404A(2).

At the outset, we note that Uniform Rules-Courts of Appeal, Rule 2-12.4(A) requires an appellant's brief to contain the following:

(7) a statement of facts relevant to the assignments of error and issues for review, with references to the specific page numbers of the record;
....
(9) the argument, which shall contain:
(a) appellant's contentions, with reference to the specific page numbers of the record and citations to the authorities on which the appellant relies,
(b) for each assignment of error and issue for review, a concise statement of the applicable standard of review, which may appear in the discussion or under a separate heading placed before the discussion[.]

In support of his assignment of error, Defendant references the State's Motion in Limine wherein it asserted that there was not enough evidence to identify Honore as the shooter in the January 31, 2010 shooting. Defendant, however, fails to indicate when the motion in limine was filed or provide a page number in the record for same. A review of the record reveals that the State filed at least three motions entitled "Motion in Limine." Additionally, Defendant fails to provide the date of the trial court's ruling that is allegedly incorrect or reference the page number in the record where it can be obtained. The only page numbers in the record referenced in support of Defendant's assignment of error relate to his sentencing memorandum. Accordingly, we decline to consider Defendant's first assignment of error.

III. Second Assignment of Error

In his second assignment of error, Defendant contends the trial court erred by preventing him from presenting evidence of the January 31, 2010 shooting. He alleges the totality of the circumstances must be considered when determining whether an overt act occurred.

Our review of Defendant's assignment of error reveals that he failed to identify the caption of the pleading or oral motion that necessitated the trial court's ruling from which he seeks review, the date that the pleading was filed or oral motion was made, and the date of the ruling at issue. Defendant also fails to reference the record page numbers of the pleading or oral motion and the ruling thereon. The only page numbers listed by Defendant in support of this assignment of error relate to witness testimony elicited at his trial. Accordingly, we decline to consider Defendant's second assignment of error in light of Uniform Rules-Courts of Appeal, Rule 2-12.4.

IV. Third Assignment of Error

In his third assignment of error, Defendant contends the sentence imposed is excessive for this offense and this offender.

In State v. Morain , 08-1546, pp. 2-4 (La.App. 3 Cir. 6/3/09), 11 So.3d 733, 735-36, writ denied , 09-1670 (La. 4/30/10), 34 So.3d 282, this court discussed the following standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-0838 (La. 2/1/02), 808 So.2d 331 (alteration in original).
In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held that:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith , 99-0606 (La. 7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.
State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-0562 (La. 5/30/03), 845 So.2d 1061.
In State v. Whatley , 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ denied , 06-2826 (La. 8/31/07), 962 So.2d 424, we discussed the factors that a reviewing court should consider in determining if a trial court abused its discretion in imposing a sentence. In Whatley , citing State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied , 99-0433 (La. 6/25/99), 745 So.2d 1183, we annunciated three factors that a reviewing court should take into consideration in abuse of discretion cases: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts.

In this case, Defendant was convicted of manslaughter, which is punishable by imprisonment up to forty years at hard labor. La.R.S. 14:31(B). He was sentenced to serve fifteen years at hard labor. According to a sentencing memorandum filed on January 16, 2018, the State stipulated Defendant had no prior convictions but revealed his pending charge of illegal carrying of weapons, with an offense date of February 20, 2009. The State further sought enhancement of Defendant's sentence pursuant to La.Code Crim.P. art. 893.3. Louisiana Code of Criminal Procedure Article 893.3(E) provides for a minimum sentence of twenty years when a firearm is discharged in the commission of a violent felony, and the sentence must be imposed without benefit of parole, probation, or suspension of sentence. The State, thereafter, filed an amended sentencing memorandum withdrawing its request for consideration of La.Code Crim.P. art. 893.3.

At the sentencing hearing, the victim's sister and brother, Katina Honore and Rusty Honore, made statements. Defendant then addressed the trial court wherein he apologized "for the situation" and indicated that he was unaware that there was a baby in the truck at the time of the shooting. Defendant stated that, at the time of the offense, he was in school and working multiple jobs. At his sentencing, Defendant pointed out that he had two children, ages ten and seven. According to Defendant, he turned himself in to police on the date of the offense. He informed the trial court that he took responsibility for Honore's death although he blamed his actions on an occurrence in 2010 wherein Honore allegedly shot Defendant. Defendant stated that he did not intend to kill Honore and that it was committed in self-defense. Defendant was twenty-two years old at the time of the offense and admitted to being charged with illegal carrying of a weapon in February 2009.

The State informed the trial court that Defendant was convicted of manslaughter, and the jury rejected his claim of self-defense. The State asserted witnesses Michael Charles and Jezerell Westley did not see Honore with a gun. The State indicated that because Honore was shot in the torso, Defendant's claim that Honore was reaching down for something prior to the shooting lacks merit. The State then asked for a maximum sentence.

Defense counsel noted that evidentiary rules prevented him from presenting proof that Honore shot Defendant in the back on January 31, 2010. Defense counsel then discussed the specifics of that shooting and its aftermath. Defense counsel asked that the trial court sentence Defendant to time served, i.e., seven years. In rebuttal, the State asserted it was never proven that Honore shot Defendant.

The trial court imposed Defendant's sentence, as follows:

Under Code of Criminal Procedure Article 890.3 Paragraph C, the following crimes of violence enumerated in RS 14:02 Paragraph B, shall always be designated by the Court in the minutes as a crime of violence. Number 4 on that listing is manslaughter, therefore this will be designated in the court minutes as a crime of violence. Under Code of Criminal Procedure Article 893A, Paragraph A, Subparagraph 2, it reads the Court shall not suspend the sentence of a conviction for an offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3, except a first conviction for an offense with a maximum prison sentence of ten (10) years or less that was not committed against a family member or household member as defined by RS 14:35.3 or dating partner as defined by RS 46:2151. The penalty for manslaughter exceeds ten (10) years requirement under Code of Criminal Procedure Article 893, therefore a suspended sentence is not possible in this case. It takes us to Code of Criminal Procedure Article 894.1. When a defendant has been convicted of a felony or misdemeanor the Court should impose a sentence of imprisonment if any of the following occurs. Paragraph 3, a lesser sentence would deprecate the seriousness of the defendant's crime.
Ladies and gentlemen, I've stayed awake on this case and one day I'll tell you why. Mr. Knatt I hereby sentence you to serve fifteen (15) years at hard labor with Department of Corrections. I give you credit for all time you have served since your arrest in this matter.

In this case, Defendant contends he cannot be described as the worst kind of offender because he has no prior felony or misdemeanor convictions. Defendant asserts that a lesser sentence would serve a meaningful purpose based on the facts of the case and his history with Honore.

We note that manslaughter is a very serious offense, and Defendant's egregious actions resulted in Honore's death. At the time of the killing, Defendant was a father of two children, and he had no prior criminal convictions. However, he had a pending charge of illegal carrying of weapons.

We now address sentences imposed in other manslaughter cases. In State v. Lewis , 09-1404 (La. 10/22/10), 48 So.3d 1073, a sixteen-year-old male watched a fight between friends, Bush and Crain, as a bystander. During the fight, he picked up a gun that had fallen out of Bush's pocket and fired a single shot into Crain's temple. The sixteen year old was convicted of manslaughter and sentenced to thirty years at hard labor. The supreme court affirmed the defendant's sentence.

In State v. Batiste , 06-875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, the defendant and the victim argued over a twenty-dollar bet on a domino game. During the argument, the defendant retrieved a gun from his truck and returned to the domino table. The defendant and the victim argued more, the two scuffled, and the defendant shot the victim. The defendant was convicted of manslaughter, and the fourth circuit affirmed his twenty-year sentence.

In State v. Hamilton , 39,168 (La.App. 2 Cir. 10/27/04), 886 So.2d 638, the second circuit upheld a twelve-and-one-half-year sentence for manslaughter committed when the defendant shot the unarmed victim twice-once in the head and once in the chest-during a struggle.

In State v. Johnson , 94-1523 (La.App. 3 Cir. 5/3/95), 657 So.2d 178, writ denied , 95-1397 (La. 11/3/95), 662 So.2d 9, the defendant was standing on the street when the victim drove up and engaged him in conversation. The defendant stated the victim appeared angry, reached across his body, and appeared to be reaching for a weapon. At that point, the defendant reached into his jacket, removed a gun, and fired into the victim's truck. The defendant was convicted of manslaughter, and this court affirmed his twenty-year sentence.

Based on the facts in this case along with the above-referenced jurisprudence, we cannot say the trial court abused its discretion when imposing Defendant's fifteen-year sentence. Accordingly, Defendant's third assignment of error lacks merit.

DISPOSITION

Defendant's conviction and sentence are affirmed.

AFFIRMED.


text:
    Amaleeta O'NEAL, et al. v. FOREMOST INSURANCE COMPANY, et al.
    18-510 18-599
    Court of Appeal of Louisiana, Third Circuit.
    February 13, 2019
    Michael L. Glass, Attorney at Law, 1733 White Street, Alexandria, Louisiana 71301, (318) 484-2917, Counsel for Plaintiffs/Appellees: Amaleeta O'Neal, Jeffery O'Neal
    Daniel G. Brenner, Christina S. Slay, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., Post Office Box 11590, Alexandria, Louisiana 71315-1590, (318) 445-8236, Counsel for Defendants/Appellants: Foremost Insurance Company, RLN Investments, LLC
    Randall B. Keiser, Matthew L. Nowlin, Keiser Law Firm, P.L.C., Post Office Box 12358, Alexandria, Louisiana 71315-2358, (318) 443-6168, Counsel for Defendant/Appellee: Don Van Cleef
    Stacy Christopher Auzenne, Auzenne Law Firm, L.L.C., Post Office Box 11817, Alexandria, Louisiana 71315-1817, (318) 880-0087, Counsel for Defendant/Appellee: Messina Realty, LLC
    Ashley E. Gilbert, CNA Coverage Litigation Group, One Galleria Boulevard, Suite 1502, Metairie, Louisiana 70001, (504) 841-5083, Counsel For Defendant/Appellee: Continental Casualty Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

RLN Investments, LLC, appeals the trial court's grant of summary judgment in favor of Messina Realty, L.L.C., on the issue of defense and indemnity. For the following reasons, the trial court's judgment is reversed, and this matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal involves the interpretation of a defense and indemnity clause in a property management agreement. On March 10, 2014, a Petition for Damages was filed by Plaintiffs, Amaleeta O'Neal and Jeffery O'Neal, against Foremost Insurance Company and Ronald Nation. Plaintiffs alleged that Amaleeta sustained injuries on March 31, 2013, when her vehicle collided with a "rotten and defective" tree which had fallen across Nation Road in Deville, Louisiana. Plaintiffs asserted the tree was located at 207 Nation Road, which was owned by Nation and insured by Foremost. Plaintiffs, thereafter, filed an amended petition wherein it dismissed Nation, individually, and added his business, RLN Investments, LLC, as an additional defendant. In its amended petition, Plaintiffs alleged the tree was located on property owned by RLN Investments and requested the matter be transferred from the Pineville City Court to the trial court. Pursuant to the city court's order, Nation was dismissed without prejudice, and the matter was transferred to the trial court.

On May 23, 2016, RLN Investments filed a Third Party Demand against Messina Realty, asserting that Christopher Mayes was renting the property in question on the date of the incident. It also alleged that prior to the incident, RLN Investments and Messina Realty entered into a Property Management Agreement (hereinafter "the contract") whereby Messina Realty agreed to manage the property, which included notifying RLN Investments "of any maintenance issues." RLN Investments argued that Messina Realty breached the contract's terms and should be liable for any damages that may be assessed against RLN Investments. On July 20, 2016, Messina Realty filed a Motion for Summary Judgment alleging that the contract contained a clause wherein RLN Investments was required to indemnify and hold Messina Realty harmless from liability for injury suffered by an employee, tenant, or guest on or about the property. On April 25, 2017, RLN Investments filed a First Supplemental and Amended Third Party Demand naming Don Van Cleef and Continental Casualty Company as additional third party defendants. Van Cleef was named in his capacity as Messina Realty's employee and property manager for 207 Nation Road. Continental was named in its capacity as Messina Realty's Errors and Omissions insurer.

On June 2, 2017, Van Cleef filed an Answer and Reconventional Demand against RLN Investments, asserting that he was employed by Messina Realty at the time of the incident and entitled to defense and indemnity pursuant to the contract. Van Cleef also asserted a cross-claim against Messina Realty for defense and indemnity based upon vicarious liability arising from a master/servant relationship. On September 21, 2017, RLN Investments filed a Peremptory Exception of No Cause of Action and Peremptory Exception of No Right of Action and Motion to Strike the declaratory judgment filed by Continental. RLN Investments also filed a Second Amended Third Party Demand alleging negligence against Messina Realty and/or Van Cleef. On October 17, 2017, Messina Realty filed an Exception of Prematurity to Van Cleef's cross-claim. On November 3, 2017, a Consent Judgment was executed between RLN Investments and Continental, and the trial court issued an order sustaining the exceptions and motion to strike filed by RLN Investments. Therein, the trial court also struck the request for attorneys' fees asserted in Continental's answer to RLN Investments' third party demand, as supplemented and amended.

Van Cleef named RLN Investments and Messina Realty in a Petition for Declaratory Judgment filed on December 8, 2017, reasserting his claims for defense and indemnity. On January 9, 2018, RLN Investments and Foremost filed a Petition for Declaratory Relief against Continental on the issue of coverage of claims. On January 26, 2018, Continental filed an opposition memorandum and Motion to Strike RLN Investments' and Foremost's Petition for Declaratory Relief. On February 1, 2018, RLN Investments filed a Second Amended Third Party Demand.

A hearing was held on February 5, 2018, regarding Van Cleef's Petition for Declaratory Judgment and Messina Realty's Motion for Summary Judgment. The trial court granted both via separate judgments. The judgment granting Messina Realty's summary judgment was signed by the trial court on February 23, 2018. RLN Investments appealed.

On appeal, RLN Investments asserts the following assignments of error:

1. Whether the Honorable Lower Court erred in granting the Motion for Summary Judgment finding that Messina Realty, LLC, is entitled to defense and indemnity from RLN Investments, LLC, when the record demonstrated that Messina Realty, LLC, and/or its agent, Don Van Cleef, breached the Property Management Agreement between RLN Investments, LLC, and Messina Realty, LLC, thus rendering the indemnity clause therein void.
2. Whether the Honorable Lower Court erred in granting the Motion for Summary Judgment finding that Messina Realty, LLC, is entitled to defense and indemnity from RLN Investments, LLC, when the record demonstrated that there are genuine issues of material facts concerning the knowledge of Messina Realty, LLC, or its agent, Van Cleef, about the alleged defective condition of the tree in question.
3. Whether the indemnity clause in the Property Management Agreement encompasses the negligence of Messina Realty, LLC, and/or Don Van Cleef.

STANDARD OF REVIEW

A summary judgment "is designed to secure the just, speedy, and inexpensive determination of" an action. La.Code Civ.P. art. 966(A)(2). "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.Code Civ.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover does not bear the burden of proof at trial on the issue before the court, the mover needs to only point out an absence of factual support for one or more elements of the adverse party's claim, action, or defense. La.Code Civ.P. art. 966(D)(1). The burden then shifts to 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.Code Civ.P. art. 966 (D)(1). If the adverse party fails to establish that a genuine issue of material fact exists, the mover is entitled to summary judgment as a matter of law. Id .

Appellate courts review summary judgments de novo using the same standard that the trial court applies, i.e., "whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Miller v. Acadian Ambulance Serv., Inc ., 17-1096 (La.App. 3 Cir. 5/23/18), 248 So.3d 469, 475, writ denied , 18-1452 (La. 11/20/18), 256 So.3d 990.

DISCUSSION

I. Contractual Breach and Knowledge

In its first assignment of error, RLN Investments contends the trial court erred in granting Messina Realty's Motion for Summary Judgment finding that it is entitled to a defense and indemnity from RLN Investments, as Messina Realty and/or Van Cleef breached the contract's terms and rendered it ineffective. In its second assignment of error, RLN Investments contends that the trial court erred in granting summary judgment because genuine issues of material fact exists regarding the knowledge of Messina Realty or Van Cleef about the alleged defective condition of the tree. In response, Messina Realty and Van Cleef filed separate appellate briefs asserting that the trial court's judgment should be affirmed.

According to the trial court's oral ruling rendered at the hearing on February 5, 2018:

The Court's reviewing ... [the contract], and the Court looks at the terms of this provision and the wording of this provision. It clearly states that he [RLN Investments/Nation] holds them harmless. Now whether or not he intended to hold them harmless from this type of action, whether or not he, uh, they have been negligent is another issue. The issue is what does the terms of this contract say?
....
[B]ut the terms and wording of this contract clearly says that he indemnifies them and hold them harmless. So the Court's going to grant the Motion for Summary Judgment.

On review, we note that "[t]he language in an indemnity agreement dictates the obligations of the parties." Kinsinger v. Taco Tico, Inc ., 03-622, p. 3 (La.App. 5 Cir. 11/12/03), 861 So.2d 669, 671. Indemnity agreements are governed by the general rules of contract interpretation. Marshall v. Sw. La. Elec. Membership Corp., 05-328 (La.App. 3 Cir. 11/2/05), 915 So.2d 1026, writ denied , 05-2491 (La. 3/24/06), 925 So.2d 1228. The "[i]nterpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. Summary judgment in matters involving the interpretation of a contract is appropriate when the document can be construed from the four corners of the instrument without needing to consider extrinsic evidence, as the matter is answered as a matter of law. LaFleur v. Hollier Floor Covering, Inc ., 00-969 (La.App. 3 Cir. 12/6/00), 774 So.2d 359.

The contract at issue in this case, i.e., the Property Management Agreement, was executed on April 26, 2012, between RLN Investments as the "owner" and Messina Realty as the "manager." According to its terms, Messina Realty is obligated to "manage, operate[ ] control, rent and lease" the property. In paragraph two under the section entitled "Responsibilities of Manager," the manager is required "[t]o make or cause to be made all ... maintenance, alterations and repairs to said property and to hire and supervise all employees and other labor for the accomplishment of same unless owner chooses to maintain own properties." If the owner chooses to maintain its own property, the "owner will be contacted immediately upon maintenance issues being reported and owner will be expected to respond in a timely manner." The contract also contains the following clause:

Liability of Manager
[RLN Investments] hereby agrees to hold [Messina Realty] harmless from any and all claims, charges, debts, demands and lawsuits, including attorney's fees related to his management of the herein-described property, and from any liability for injury on or about the property which may be suffered by any employee, tenant or guest upon the property.

The contract was attached to Messina Realty's Motion for Summary Judgment along with Van Cleef's affidavit. Van Cleef attested that he was acting in his capacity as Messina Realty's agent when he executed the contract with RLN Investments. According to his affidavit, Van Cleef "reported all complaints related to maintenance of the property" made by the property's tenant, Mayes, to Nation. Van Cleef "reported the complaints by the tenant regarding the tree to" Nation. Van Cleef advised that "upon learning of the accident on" March 31, 2013 from Mayes, Van Cleef "immediately notified" Nation. The affidavit indicates that "Nation insisted on personally performing all maintenance work at the" property "and insisted that he be immediately made aware of any problems ... of which [Van Cleef] at all times complied with [Nation's] wishes."

Attached to RLN Investments' opposition memorandum was Mayes' deposition testimony elicited on June 16, 2015. Therein, Mayes testified that he notified Van Cleef about the tree on two separate occasions. Mayes revealed that on the first occasion, he told Van Cleef that "limbs were falling and it looked like [the tree] had been struck by lightning and it was eventually going to fall." On the second occasion according to Mayes' testimony, he told Van Cleef that "the tree was going to fall."

Also attached to RLN Investments' opposition memorandum was Van Cleef's deposition testimony dated October 11, 2016. Therein, Van Cleef denied Mayes' allegations regarding his complaints and/or reports of a problematic tree. Van Cleef was unable to "recall anything about [Mayes] having to pick up limbs or a dead tree or lightning striking a tree or anything like that." Van Cleef "never heard anything about a tree" and could not "remember anything getting hit by lightning or [Mayes] telling [Van Cleef] that there's limbs falling or any of that." Van Cleef noted that had Mayes lodged such a complaint, he would have reported it to Nation. Van Cleef testified that during his entire time as the property's manager, he never reported an issue regarding a tree to Nation.

Nation's deposition testimony, which was elicited on October 11, 2016, was also attached to RLN Investments' opposition memorandum. Therein, Nation agreed that he expected to be informed by Van Cleef about Mayes' alleged complaints regarding the tree. However, Nation revealed that Van Cleef never informed him about the problems or complaints by the tenant.

In this case, there is conflicting witness testimony surrounding the knowledge and actions of Messina Realty's agent, Van Cleef, regarding the tree in question. Because of these conflicting views, the credibility of the witnesses must be determined. "The credibility of a witness is a question of fact ." Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234. In determining whether a genuine issue exists, "courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Smith v. Our Lady of the Lake Hosp., Inc ., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Specifically, "[a] trial judge cannot make credibility determinations on a motion for summary judgment." Hutchinson , 866 So.2d at 234. Based on the facts set forth in the record of this summary judgment and the conflicting witness testimony presented at trial regarding knowledge of the condition of the tree, we find that the trial court erred in granting the motion for summary judgment.

II. Negligence

In its third assignment of error, RLN Investments questions whether the indemnity clause in the contract encompasses the negligence of Messina Realty and/or Van Cleef. RLN Investments contends that there is no language in the contract stating that it intended to indemnify Messina Realty or its agents for damages arising from their own negligence.

In response, Messina Realty asserts that the supreme court has held that an indemnity contract can indemnify the indemnitee for the negligent acts of its own employee. In support, Messina Realty cites Polozola v. Garlock, Inc ., 343 So.2d 1000 (La.1977), and Berry v. Orleans , 01-3283 (La. 6/21/02), 830 So.2d 283.

In Polozola , 343 So.2d 1000, the issue was whether an industrial maintenance contractor obligated itself under a maintenance contract with Dow Chemical Company to indemnify Dow employees against losses caused by their own negligence. On review, the supreme court referenced Louisiana law which holds that an indemnity contract "whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms." Id . at 1003. The indemnity clause in Polozola contained the following language: "whether caused by Dow's negligence or otherwise." Id . at 1002. The supreme court held that the foregoing language constitutes an unequivocal intention to indemnify Dow employees against losses caused by their own negligence.

In Berry , 830 So.2d 283, the Orleans Parish School Board executed a contract with the Lighthouse of the Blind in New Orleans, Inc., for mobility training services to public school students. The indemnity clause obligated Lighthouse to indemnify the other parties from claims "arising out of the performance of any of the services to be performed pursuant to the terms of" the contract, "regardless of whether or not it is caused in part by a party indemnified hereunder[.]" Id . at 284. In order to determine whether an indemnitee may be indemnified against its own negligent acts, the supreme court discussed in Berry the case of Arnold v. Stupp Corp ., 205 So.2d 797 (La.App. 1 Cir. 1967), writ not considered , 251 La. 936, 207 So.2d 540 (1968), wherein the appellate court surveyed the case law and noted the majority and minority view on this issue:

The general rule is stated thus: 'A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. 27 Am.Jr., Indemnity, § 15, page 464; 42 C.J.S. Indemnity § 12, page 580.' The established principle supporting the rule is that general words alone, i.e., 'any and all liability', do not necessarily import an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter.
The minority view is bottomed on the premise that the words 'any and all liability' are unambiguous and the use thereof means just that and the restrictive interpretation adhered to in the majority view is violative of the rule of law that a contract freely entered into, which is not against public policy or prohibited by law, is the law between the parties and subject to judicial recognition and enforcement. [General Acc. Fire & Life Assur. Corp. v. Smith & Oby Co.], 77 A.L.R.2d 1134 [272 F.2d 581 (6th Cir. 1959) ].
For reasons hereinafter stated we are of the opinion and so hold that Louisiana is committed to the majority view. (Citations omitted)

Id . at 286. After reviewing Arnold along with other jurisprudence, the supreme court in Berry held that the plaintiffs' injuries arose out of the performance of the contract between Lighthouse and the school board, and Lighthouse was required to indemnify the school board.

We note that the language in the indemnity contracts in Berry and Polozola unequivocally expressed an intention to indemnify the others against claims caused by their own negligence based upon the following terms contained therein: "whether caused by Dow's negligence or otherwise" and "regardless of whether or not it is caused in part by a party indemnified hereunder[.]" Polozola , 343 So.2d at 1002, and Berry , 830 So.2d at 284. In this case, there lacks similar language showing that RLN Investments intended to indemnify Messina Realty or its agents for damages arising from its own negligence. Accordingly, we find merit to this assignment of error.

III. Attorney's Fees

On appeal, RLN Investments asserts that Messina Realty is not entitled to recover attorney's fees because the contract does not establish the right to indemnification. In response, Messina Realty contends that RLN Investments specifically agreed to reimburse their attorney's fees for any claims brought against it relating to the contract. In further response, Van Cleef asserts that if the trial court's judgment is affirmed, it should be extended to him because he was Messina Realty's employee acting in the course and scope of his employment. Van Cleef notes that he was not included in the judgment at issue because it was drafted by RLN Investments' counsel. Van Cleef further prays for an award of $ 3,500.00 in attorney's fees for all work performed on the instant appeal.

At the outset, we note that the trial court's judgment at issue dismissed RLN Investments' third party demands "with prejudice, at their cost." In Morris v. Schlumberger, Ltd ., 445 So.2d 1242, 1247 (La.App. 3 Cir.), writ denied , 449 So.2d 1345 (La.1984), this court stated:

The general rule is that the allowance of attorney's fees is limited to defense of the claim indemnified against, and no recovery can be had for attorney's services and expenses incurred in establishing the right to indemnity. However, when specifically provided for by contract, attorney's fees incurred in establishing the right to indemnity may also be recovered.

This court noted that the contract between Schlumberger and Phillips provided for attorney's fees based upon the following language:

Customer [Phillips] further agrees to protect, indemnify and hold us and our officers and employees free and harmless from and against any and all claims, demands, causes of action, suits or other litigation (including all costs thereof and attorney's fees ) of every kind and character whenever arising in favor of Customer or any third party ... on account of bodily injury, death, loss of damage to or loss of use of property ... and financial loss of any kind: ..." (emphasis added)

Id . at 1247. This court revealed that additional contractual language provided: " 'in any way by act or omission occurring incident to arising out of or in connection with the presence of our employee or our equipment on premises controlled, leased, operated or owned by Customer, or its agents or contractors ....' " Id . According to the foregoing language, this court held that "Schlumberger could recover attorney's fees only for those services and expenses incurred in defense of the claim indemnified against" because the contract failed "to specifically provide for the recovery of attorney's fees incurred in establishing the right to indemnification." Id .

In this case, the contract provides that attorney's fees are only warranted if: "[RLN Investments] hereby agrees to hold [Messina Realty] harmless from any and all claims, charges, debts, demands and lawsuits, including attorney's fees related to his management of the herein-described property[.]" This clause, just like the clause in Schlumberger , fails to specifically provide for the recovery of attorney's fees incurred in establishing the right to indemnification. Accordingly, we find that Messina Realty and/or Van Cleef is not entitled to recover attorney's fees associated with establishing the right to indemnification based upon the terms of the contract at issue.

DECREE

For the above reasons, the trial court's judgment in favor Messina Realty, L.L.C., is reversed. The matter is remanded to the trial court for further proceedings. All costs associated with this appeal are assessed to Messina Realty, L.L.C.

REVERSED AND REMANDED.


author: Judge Dale N. Atkins

text:
    STATE of Louisiana v. Gary TRAVIS
    NO. 2018-KA-0645
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 13, 2019
    Jeff Landry, Louisiana Attorney General, Colin A. Clark, Assistant Solicitor General and Chief of Criminal Appeals Section, Pamela S. Moran, Assistant Attorney General, LOUISIANA DEPARTMENT OF JUSTICE, P.O. Box 94005, Baton Rouge, Louisiana 70804-9005, COUNSEL FOR STATE OF LOUISIANA THROUGH THE LOUISIANA STATE ATTORNEY GENERAL'S OFFICE/APPELLANT
    Rachel S. Shur, ORLEANS PUBLIC DEFENDER'S, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Dale N. Atkins

In this criminal matter, the State of Louisiana appeals the district court's judgment declaring the sentencing statute in effect at the time of the alleged crime, La. R.S. 40:966(F)(1), unconstitutional as applied to defendant Gary Travis. For the reasons that follow, we reverse the judgment, vacate defendant's sentence, and remand for re-sentencing.

BACKGROUND

Gary Travis was charged in April 2016 with one count of possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1). He pled not guilty at his arraignment, and after several continuances, the State amended the bill of information to charge defendant with one count of possession of marijuana between two and one-half pounds or more, but less than sixty pounds, in violation of La. R.S. 40:966(F)(1) (2015). Trial was set for January 8, 2018. Defendant pled guilty and was sentenced to five years in the Department of Corrections, with five years suspended, plus two years and nine months of active probation. The trial court recognized the mandatory $ 10,000 fine imposed by La. R.S. 40:966(F)(1) (2015), but counsel for defendant asked the court to hear testimony from Mr. Travis so that the court could downward depart from the $ 10,000 fine in accordance with Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

The trial court heard testimony from defendant, who stated that he worked for FEMA for three months ending in October or November 2017, but he had not worked for approximately five years before that time due to a car accident that resulted in major back surgery. He lived with his fiancée but did not know how much she earned in her position as a Bridge Field Counselor for the State. Defendant explained that he did not have health insurance but saw a physician every two months as a result of his back surgery and paid $ 500 for each visit, plus additional money for medication. Defendant was also responsible for child support payments for his five children who do not live with him. His fiancée helped support the two children who lived with them; the fiancée also paid their eleven hundred dollars monthly rent.

After hearing defendant's testimony, the trial court issued a Judgment with Reasons on February 2, 2018, finding that the mandatory fine imposed by La. R.S. 40:966(F)(1) (2015) was unconstitutional as applied to Mr. Travis, but holding that the remaining sentence would be effective. The court indicated that the Attorney General should be notified of the court's ruling. See La. R.S. 49:257 (C).

On February 28, 2018, the Attorney General filed a motion to vacate the trial court's February 2, 2018 ruling finding La. R.S. 40:966(F)(1) (2015) unconstitutional. The State also filed a motion to appeal the court's February 2 decision to the Louisiana Supreme Court.

On March 8, 2018, defendant filed a Motion to Declare Mandatory Fine Unconstitutional. In the Motion, defendant argued that the fine mandated by La. R.S. 40:966(F)(1) (2015) violated his procedural due process rights, citing Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), and argued that the fine was a "grossly disproportionate" penalty considering his indigent status.

The State and the Attorney General jointly opposed defendant's Motion. On March 27, 2018, the trial court vacated its February 2, 2018 ruling so that the Attorney General would have an opportunity to be heard.

After a hearing involving defendant, the State, and the Attorney General, the trial court issued a ruling on April 18, 2018, again finding that La. R.S. 40:966(F)(1) (2015) violated defendant's due process rights and was unconstitutional. The district court nevertheless recognized that this Court "has consistently remanded sentences in which a judge fails to impose a mandatory fine in which the defendant is indigent." (Citing State v. Lewis , 2013-1588, p. 23 (La. App. 4 Cir. 8/27/14), 147 So.3d 1251, 1264 ; State v. Williams , 2003-0302, pp. 3-4 (La. App. 4 Cir. 10/6/03), 859 So.2d 751, 753 ; and State v. Hall , 2002-1098, p. 6 (La. App. 4 Cir. 3/19/03), 843 So.2d 488, 494 ). The district court also determined that defendant presented a "persuasive argument" that his due process rights were being violated under Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Finally, the court noted that even though the fine was a "future injury," the injury was "real, immediate, and direct." (citing Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 2769, 171 L.Ed.2d 737 (2008) ).

On April 23, 2018, the Attorney General and the State timely filed a joint motion to appeal the district court's ruling.

JURISDICTION

Ordinarily a trial court's declaration that a Louisiana state statute is unconstitutional warrants direct appeal to the Louisiana Supreme Court. LA. CONST. Art. V, § 5 (D)(1); Vallo v. Gayle Oil Co., Inc. , 1994-1238 (La. 11/30/94), 646 So.2d 859, 860-61. Here, however, the district court did not rule that former La. R.S. 40:966(F)(1) is unconstitutional on its face; instead, the court ruled that the statute is unconstitutional as applied to this particular defendant. Thus, under State v. Heard , 2015-0873, p. 3 (La. App. 3 Cir. 4/6/16), 215 So.3d 825, 827, this appeal is properly before this Court. See also State v. Trosclair , 2011-2302, pp. 5-6 (La. 5/8/12), 89 So.3d 340, 344.

ASSIGNMENTS OF ERROR

The State raises three assignments of error on appeal: first, that defendant did not properly allege that La. R.S. 40:966(F)(1) (2015) is unconstitutional under Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ; second, even if defendant's Bearden argument were properly alleged, the defendant is not currently facing imprisonment for failure to pay the fine, because the fine was not imposed, thus, the challenge is premature; and third, the district court should not have ruled that La. R.S. 40:966(F)(1) (2015) is unconstitutional as a violation of defendant's procedural due process rights, because defendant is provided ample opportunity to challenge an excessive sentence, either through (i) a sentencing hearing; (ii) an excessive sentence hearing under La. C.Cr.P. art. 881.1, LA. CONST. art. I, § 20, and State v. Dorthey , 623 So.2d 1276 (La. 1993) ; or (iii) a possible probation revocation hearing under La. C.Cr. P. art. 900. We address the State's assignments of error below.

ANALYSIS

Assignment of Error Number 1

The State argues first that defendant did not properly allege that the statute is unconstitutional under Bearden . To address this assignment of error, we consider whether the constitutional issue was properly preserved. We address the State's argument regarding the applicability of Bearden in our discussion of Assignment of Error Number 2, below.

The unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. State v. Hatton , 2007-2377, p. 14 (La. 7/1/08), 985 So.2d 709, 719. This "is so that the adjudicating court can analyze and interpret the language of the constitutional provision specified by the challenger." State v. Overstreet , 2012-1854, p. 10 (La. 3/19/13), 111 So.3d 308, 315. This Court has held that the grounds for a constitutional challenge must be particularized, but there is "absence of a formal procedure" for making such a challenge. Id. , 2012-1854 at 9, 111 So.3d at 314 ; State in the Interest of J.D. , 2013-0964, p. 3 (La. App. 4 Cir. 11/27/13), 129 So.3d 831, 833.

Here, the unconstitutionality of La. R.S. 40:966(F)(1) (2015) arose during sentencing on January 8, 2018, after defendant had pled guilty. At that time, defendant's constitutional challenge invoked Bearden .

Defendant's subsequent written motion to declare the mandatory fine unconstitutional, filed March 8, 2018, did not cite Bearden but cited Mathews v. Eldridge and additional United States and Louisiana Constitutional provisions to support the argument that defendant's procedural due process rights were being violated. Our review of the record reveals that defendant properly preserved his constitutional challenge, articulating sufficient reasons why he believes the statute imposing a mandatory fine is unconstitutional.

Assignment of Error Number 2

Next, the State contends that even if defendant properly challenged the constitutionality of the applicable statute, Bearden would not apply here because defendant is not facing mandatory jail time for failure to pay a fine-the district court never imposed the fine. In other words, defendant's challenge under Bearden is premature.

We agree that Bearden does not apply to these facts. In Bearden , the U.S. Supreme Court held that a sentencing court could not automatically revoke a defendant's probation for the defendant's inability to pay a fine without first determining whether defendant had made sufficient bona fide efforts to pay, or that adequate alternative forms of punishment did not exist. State v. Williams , 489 So.2d 286, 291 (La. App. 4th Cir. 1986) (citing Bearden , 461 U.S. at 672-73, 103 S.Ct. at 2073 ). "Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine." Bearden , 461 U.S. at 672-73, 103 S.Ct. at 2073.

Bearden does not prohibit the imposition of a fine on an indigent defendant; instead, Bearden prohibits the imposition of prison time (such as through revocation of probation) on an indigent defendant who has proven he is unable to pay a fine already imposed. Because no fine was included in defendant's sentence in this case, Bearden is not the proper vehicle for traversing the constitutionality of La. R.S. 40:966(F)(1) (2015).

Assignment of Error Number 3

Finally, the State argues that the trial court should not have ruled that the mandatory fine violates defendant's procedural due process rights because there are a number of due process protections available to defendant, including a sentencing hearing, an excessive sentence hearing, and a possible probation revocation hearing (as in Bearden ). We agree.

First, pursuant to La. C.Cr.P. art. 884, the defendant may assert during sentencing that a default prison sentence cannot be imposed if defendant is unable to pay a fine. Second, once the court has included the mandatory fine in defendant's sentence, defendant can file a motion to reconsider his sentence under La. C.Cr.P. art. 881.1. Third, if the State were to attempt to revoke defendant's probation for failure to pay the fine, defendant could then invoke Bearden .

In addition to the fact that defendant has adequate remedies available after sentencing, we are bound by this Court's prior opinions in Lewis , 2013-1588, p. 23, 147 So.3d at 1264 ; Williams , 2003-0302, pp. 3-4, 859 So.2d at 753; and Hall , 2002-1098, p. 6, 843 So.2d at 494, as the district court's Judgment in this matter concedes. For these reasons, we hold that the trial court erred in declaring La. R.S. 40:966(F)(1) (2015) unconstitutional as applied to defendant.

Lastly, although we recognize that the Legislature has enacted La. C.Cr.P. art. 875.1, which requires a court to determine whether payment of a mandatory fine "would cause substantial financial hardship to the defendant or his dependents" and, if so, permits the court to waive all or any portion of such financial obligations, that statute does not become effective until August 1, 2019, rendering it inapplicable here.

CONCLUSION

For the reasons stated above, we reverse the district court's judgment declaring La. R.S. 40:966(F)(1) (2015) unconstitutional, vacate the defendant's sentence, and remand for resentencing in compliance with the applicable statute.

JUDGMENT REVERSED; SENTENCE VACATED; REMANDED FOR RESENTENCING

LOBRANO, J., CONCURS IN THE RESULT.

      La. R.S. 40:966(A)(1) provides:
      A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I[.]

      The version of La. R.S. 40:966(F)(1) in effect at that time the crime was committed provided:
      Any person who knowingly or intentionally possesses two and one-half pounds or more, but less than sixty pounds of marijuana ... shall be sentenced to serve a term of imprisonment with or without hard labor of not less than two years, nor more than ten years, and to pay a fine of not less than ten thousand dollars nor more than thirty thousand dollars.

      La. R.S. 49:257 (C) provides:
      Notwithstanding any other law to the contrary, the attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.

      Mathews establishes three factors for determining whether a procedure is unconstitutional:
      [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
      Mathews , 424 U.S. at 334-35, 96 S.Ct. at 903.

      Defendant's motion stated that is was filed "pursuant to the Fourteenth Amendment to the United States Constitution; Article 1, §§ 2, 3, 4, 13, and 19 -22, and Article 2, §§ 1 and 2, of the Louisiana Constitution."

      La. C.Cr.P. art. 884 provides:
      If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.

      La. Const. art. I, § 20, and State v. Dorthey , 623 So.2d 1276 (La. 1993), also protect the defendant's procedural due process right against the imposition of an excessive sentence.

      The State also points to State v. Major , 2003-0249 (La. App. 3 Cir. 3/2/05), 898 So.2d 548, 550, a case in which the court of appeal reversed the defendant's sentence after the district court had refused to impose the mandatory fine attached to cocaine possession charges. Although the defendant was indigent, the court of appeal found that the trial court, "even in light of its determination that Major was indigent, should have imposed the mandatory fine but without imposing default time under La. Code Crim. P. art. 884. The imposition of a fine without default time would at least allow the State to enforce collection of the fine in the same manner as a money judgment in a civil case." Id. at 551. See also State ex rel. Teat v. State , 576 So.2d 998 (La. 1991) (remanding to the trial court for a determination of indigence; if relator is indigent, trial court is ordered to delete that portion of the sentence providing for jail time in the event of a default of payment of the fine imposed). The Third Circuit's decision in Major is consistent with this Court's rulings in Lewis , Williams , and Hall , supra.


author: PERRY, Judge.

text:
    J.P. v. A.D.
    CA 18-555
    Court of Appeal of Louisiana, Third Circuit.
    February 20, 2019
    Kathy Fontenot-Meyers, Attorney at Law, P. O. Drawer F, Ville Platte, LA 70586, COUNSEL FOR DEFENDANT/APPELLANT: A.D.
    Christopher M. Ludeau, Attorney at Law, P. O. Drawer 69, Ville Platte, LA 70586, COUNSEL FOR PLAINTIFF/APPELLEE: J.P.
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   PERRY, Judge.

In this child custody dispute, the mother appeals the trial court's judgment which designated both parents as "joint domiciliary custodial parents." She also appeals the trial court's unrecorded, in-chambers interview of one of her witnesses, and its ruling that returned her kindergarten-age daughter to a prior school. We affirm in part, reverse in part, and render.

FACTS

A.D. and J.P. have two minor daughters, B.P., six-years of age, and C.P., three-years of age. Although A.D. and J.P. were not married, they and their two children resided near Bayou Chicot in a home A.D. owned. All of them lived together for approximately five years until the father moved out of the home on or about October 5, 2017, as a result of a break-up between mom and dad.

Beginning in the 2017-2018 school year, B.P. attended kindergarten at Bayou Chicot Elementary. Prior to the break-up, as she traveled to Oakdale Elementary, where she was employed as a Pre-K teacher, A. D. would bring her two children to the home of Angie, J. P.'s mother. Angie, a school secretary at Bayou Chicot Elementary, would take C.P. to daycare and would bring B.P. to the elementary school. After school, Angie would pick up her two grandchildren and bring them to her home. A. D. would then come and get her children when she returned from Oakdale Elementary, and they would go to their Bayou Chicot home.

At or near Christmas 2017, after J. P. left the Bayou Chicot home, A. D. decided to transfer B.P. to Oakdale Elementary, where she was allowed to attend because A. D. was employed there. J. P. objected to B.P.'s transfer, and this litigation ensued.

PROCEDURAL HISTORY

On January 9, 2018, J. P. filed suit against A.D., seeking shared custody of B.P. and C.P. A.D. answered J.P.'s lawsuit and reconvened, seeking sole custody of the two children, subject to J.P.'s supervised visitation, child support, and the issuance of a TRO, enjoining J.P. from any physical and sexual abuse or harassment of A.D.

The trial court heard this matter on two non-consecutive days, February 24, 2018 and March 20, 2018. Shortly after the conclusion of the March 20 hearing, the trial court assigned written reasons and issued judgment. In that judgment, the trial court: (1) ordered B.P. removed from Oakdale Elementary and re-enrolled at Bayou Chicot Elementary by April 9, 2018; (2) provided A.D. and J.P. with shared custody of B.P. and C.P.; (3) designated A.D. and J.P. as "joint domiciliary custodial parents"; (4) ordered custody and visitation with the minor children on a "7x7" basis with the non-visiting parent having additional visitation every Wednesday evening for two hours "in accordance with the attached Custody Implementation Plan";

(5) provided that visitational and custodial exchanges take place at the home of J.P.'s parents; (6) ordered J.P. to pay $500 monthly for child support retroactive to January 15, 2018; (7) required A.D. to continue carrying the minor children on all medical and health insurance premiums; (8) ordered J.P. to pay the child care/day care costs of the two children; (9) ordered J.P. responsible for 68% of all costs of school and extracurricular activities, as well as deductibles, copays, and non-covered medical expenses of the two children; (10) granted the parties unmonitored telephone or text messaging/conversations during the other parent's visitation; (11) ordered open communication as to the health, education and welfare of the children between the parents and prohibited the parents from making disparaging or derogatory comments about each other in the presence of the children or other persons; and (12) decreed that the jurisdiction of the custody and support matters would remain with the Evangeline Parish court and that the order would be regarded as a "considered decree." Although the trial court designated A.D. and J.P. as "joint domiciliary custodial parents," it did not allocate legal authority and responsibility for the children in the joint custody implementation order.

On appeal, A.D. asserts the trial court committed manifest error by: (1) designating the parents as co-domiciliary parents; (2) not having the witness testimony of Brother Jerry Adams ("Brother Adams") received in chambers recorded and made part of the record; and (3) refusing to allow B.P. to attend school where she (A. D.) teaches.

DISCUSSION

Domiciliary Parent

Relying on Hodges v. Hodges , 15-0585 (La. 11/23/15), 181 So.3d 700, A.D. argues that the trial court committed an error of law when it designated her and J.P. as joint domiciliary custodial parents. She contends that ruling should be reversed, and she should be designated as the domiciliary parent.

After a trial court has decided to award joint custody to the parents, La.R.S. 9:335 governs the detailed determination of the custody arrangement. In pertinent part, La.R.S. 9:335 provides:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
...
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

Interpreting La.R.S. 9:335, the supreme court explained:

Read as a whole, therefore, we conclude the plain language of La. R.S. 9:335 manifests the legislature's clear intent to establish a custodial system in which a child has a domiciliary parent and no more than one such parent. The text is clear. Although each parent can share physical custody, the court can only designate a single domiciliary parent.

Hodges , 181 So.3d at 706.

In further explanation, the Hodges opinion also explained:

Although La. R.S. 9:335(B)(1) provides that "[i]n a decree of joint custody the court shall designate a domiciliary parent," the legislature provided two exceptions to this mandate-that is, (1) "when there is an implementation order to the contrary" or (2) "for other good cause shown." (Emphasis added.) In other words, while La. R.S. 9:335(B)(1) provides a preference for the designation of "a domiciliary parent," a court could choose not to designate a domiciliary parent at all and, instead, to allocate authority by means of an implementation order . See Evans [v. Lungrin ], 97-0541 at 11 [ (La. 2/6/98) ], 708 So.2d [731] at 737. Indeed, according to La. R.S. 9:335(A)(1), (2)(a), and (3), when joint custody is decreed and in the absence of "good cause shown," a joint custody implementation order "shall allocate the time periods during which each parent shall have physical custody of the child" and "shall allocate the legal authority and responsibility of the parents." (Emphasis added.)

Hodges , 181 So.3d at 708-09 (internal footnotes omitted) (first alteration in original).

In the present case, the trial court clearly contravened La.R.S. 9:335 when it designated A.D. and J.P. as joint custodial domiciliary parents. Likewise, its implementation order does not address the issue of "good cause shown." Accordingly, we reverse the trial court's judgment to this extent.

Custody Implementation Order

As noted in Hodges , 181 So.3d at 711 :

[W]e find that La. R.S. 9:335 does not explicitly require a particular form for the rendition of a joint custody implementation order, and we hold the only mandatory requirements for a joint custody implementation order stated in La. R.S. 9:335 are: (1) the time periods during which each parent shall have physical custody of the child; and (2) the legal authority and responsibility of the parents.

Although our supreme court did not expound in Hodges on what parental authority and responsibilities are mandated in a valid implementation order, our colleagues of the first circuit spoke to this question in Ehlinger v. Ehlinger , 17-1120 (La.App. 1 Cir. 5/29/18), 251 So.3d 418. They said:

It would appear that the legislature, in requiring an allocation of the legal authority and responsibility regarding minor children, intended to promote greater harmony between the parents by providing less opportunity for conflict. In order to accomplish this goal, we find that an implementation order should at a minimum allocate the legal authority and responsibility for major decisions, such as medical care, elective surgery, dental or orthodontic care, and school and/or preschool choices.

Ehlinger , 251 So.3d at 426.

In the present case, notwithstanding the trial court's admonition to the parents to have "open communication as to the health, welfare and education of the minor children between the parents," such a stipulation does not comply with the mandate of La.R.S. 9:335(A)(3) to "allocate the legal authority and responsibility of the parents." To the contrary, such an open-ended statement, though complimentary, does not promote greater harmony between the parents. And as reflected in the facts of the present case, such a statement does nothing to diffuse the opportunity for conflict. Accordingly, we find the trial court also failed to allocate legal authority and responsibility in its joint custody implementation order.

Disposition

Having identified two errors of law, we must determine a procedure to best resolve this matter. If the record is complete, we are able to make our own independent de novo review. Landry v. Bellanger , 02-1443 (La. 5/20/03), 851 So.2d 943. We find that the record is complete and de novo review is appropriate.

A.D. and J.P. lived together with their two daughters, B.P., their six-year old, and C.P., their three-year old, in A.D.'s home near Bayou Chicot. J.P. left the home at or near Christmas 2017. After J.P. left, he lived with his parents and, at the time of the custody hearing, he was in the process of purchasing a home of his own. At the time of the hearing, the two daughters were living at home with A.D. The domiciliary parent is the parent with whom the child primarily resides. La.R.S. 9:335(B)(2). Moreover, our review of the record shows A.D. provides the children with day-to-day stability and sees to the children's daily necessities of life. Accordingly, we designate A.D. as the domiciliary parent.

As the domiciliary parent, A.D. shall have authority to make all major decisions affecting B.P. and C.P. Moreover, as provided in La.R.S. 9:335(B)(3), all major decisions made by A.D. concerning her children shall be subject to review by the court upon motion of J.P. Notwithstanding, as further provided in La.R.S. 9:335(B)(3), "It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child[ren]."

DECREE

Therefore, we reverse the trial court's designation of A.D. and J.P. as joint domiciliary custodial parents. We designate A.D. as the domiciliary parent. In all other respects, the trial court judgment is affirmed. Costs are assessed to J.P.

AFFIRMED, IN PART; REVERSED, IN PART; AND RENDERED.

      In accordance with Rule 5-2 of the Uniform Rules-Courts of Appeal, we will refer to the parties by their first names' and surnames' initials to ensure the confidentiality of the minors involved in this proceeding.

      At the conclusion of the first day's hearing, the trial court issued an interim judgment. It granted the parties joint custody, designated A.D. as the domiciliary parent, granted J.P. unsupervised visitation on every other weekend, provided an exchange point for visitation, allowed B.P. to remain at Oakdale Elementary, and granted mutual and reciprocal restraining orders to both A.D. and J.P.

      Our thorough search of the record fails to find an attached custody implementation plan. However, the record does contain detailed reasons for judgment which address custody and visitation with specificity. Louisiana Revised Statutes 9:335 does not explicitly require a particular form for the rendition of a joint custody implementation order. Notwithstanding, see infra our further discussion of La.R.S. 9:335(A)(3) and the trial court's ruling.

      We further note that although the trial court granted mutual and reciprocal restraining orders to both A.D. and J.P. in its interim judgment, the final judgment is silent in this regard.

      We pretermit discussion of A.D.'s second assignment of error. Our careful review of the record shows that although the trial court agreed to take Brother Adams' testimony out of order, the record indicates A.D.'s trial counsel neither objected to the trial court's in-chambers examination of Brother Adams nor objected to the failure to have that examination recorded. "If a party fails to make a contemporaneous objection the issue may not be raised on appeal." Davis v. Kreutzer , 93-1498 (La.App. 4 Cir. 2/25/94), 633 So.2d 796, 803, writ denied , 94-773 (La. 5/6/94), 637 So.2d 1050.

      Louisiana Revised Statutes 9:336 also provides that "[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority." Major decisions "normally include decisions concerning major surgery or medical treatment, elective surgery, and schools attended, but not the day-to-day decisions involved in rearing a child, e.g., bedtimes, curfews, household chores, and the like." Griffith v. Latiolais , 10-0754 (La. 10/19/10), 48 So.3d 1058, 1069 (quoting Kenneth Rigby, 1993 Custody and Child Support Legislation , 55 La. L.Rev. 103, 113 (1994) ). Non-major decisions are not subject to judicial review. Id. ; Evans v. Lungrin , 97-541 (La. 2/6/98), 708 So.2d 731, 738.
      Although we have not reversed the trial court's decision to remove B.P. from Oakdale Elementary and re-enroll her at Bayou Chicot Elementary, that decision, now reviewed some one year later, may not now be viable under the present circumstances. However, our treatment of that question should not be viewed as an indication as to which school B.P. should be enrolled in the future. Having been designated domiciliary parent, A.D. now has that authority. Major decisions extend to decisions as to schooling and school choice. Ehlinger , 251 So.3d 418.