text:
    STATE of Louisiana v. Michael LUCIEN
    No. 2018-KH-1630
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL, DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Booker Earl LOYDEN
    No. 2018-KH-1503
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Ronnie ALLEN
    No. 2018-KH-1412
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Franklin G. REDFEARN
    No. 2018-KH-1408
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

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

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

Hughes, J., would grant for an evidentiary hearing.


text:
    STATE of Louisiana v. Maurice ANDERSON
    No. 2018-KH-1168
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE of Louisiana v. Eugene Thomas Morris J. PATIN
    NO. 2015-K-1191
    Supreme Court of Louisiana.
    June 17, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana, OBO T.J. and T.J., Minor Children of Tomika Clofer v. Dexter JOHNSON
    NO. 2019-CC-0343
    Supreme Court of Louisiana.
    June 17, 2019
    Not considered. See Louisiana Supreme Court Rule IX, § 6.
   GUIDRY, J., recused.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Allen Richard ROTH, Jr.
    NO. 2018-K-2059
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   HUGHES, J., would grant.


text:
    PONTCHARTRIAN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-C-0526
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Jorge SANCHEZ-RODRIGUEZ
    NO. 2019-KO-0100
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Stanley BERNIARD
    NO. 2019-KP-0336
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2019-KK-0508
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., recused.


author: WEIMER, J., would grant.

text:
    Phyllis TEBAULT, Patricia Delavallade, Almeria Williams, Anthony Jackson, Eileen Jones, Zakiya Jackson, and Doris Monconduit, individually and as Heirs of Thelma Jackson v. EAST JEFFERSON GENERAL HOSPITAL, Dr. Arzu Hatipoglugreen, Dr. Rene Deboisblanc and Dr. Christian Scheuermann
    NO. 2019-CC-0641
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    ABS SERVICES, INC. v. JAMES CONSTRUCTION GROUP, L.L.C. and the Continental Insurance Company
    Louisiana Department of Transportation & Development v. Professional Services Industries, Inc.
    NO. 2019-C-0473
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Harold MCEWEN
    NO. 2019-KK-0652
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    Ladessa Carol LEBLANC v. LOUISIANA DEPARTMENT OF EDUCATION
    NO. 2019-C-0654
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., would grant.

CRICHTON, J., would grant.


text:
    Rhonda REESE v. Edward ROBINSON, State Farm Mutual Automobile Insurance Company, and American Family Mutual Insurance Company
    NO. 2019-CC-0655
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


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

text:
    STATE of Louisiana v. Edward BENN and Ronald Cratchan
    NO. 2019-KK-0661
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Roy F. DUSSOUY, Jr. v. Lisanne Alack DUSSOUY
    NO. 2019-CC-0675
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Kevin Dale DAIGLE
    NO. 2019-KK-0823
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: KYZAR, Judge.

text:
    Gilbert ESPREE, Jr. v. VANOIL COMPLETION SYSTEMS
    18-932
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Chris Richard, 730 Jefferson Street, Lafayette, LA, 70501 (337) 234-5505, COUNSEL FOR PLAINTIFF/APPELLANT: Gilbert Espree, Jr.
    Eric J. Waltner, Allen & Gooch, A Law Corporation, P. O. Box 81129, Lafayette, LA, 70598-1129 (337) 291-1400, COUNSEL FOR DEFENDANT/APPELLEE: Vanoil Completion Systems
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The plaintiff, Gilbert Espree, Jr., appeals from a judgment of the Office of Workers Compensation granting summary judgment in favor of the defendant, Vanoil Completion Systems, dismissing his claim for workers' compensation benefits. For the reasons assigned, we reverse and remand.

DISCUSSION OF THE RECORD

Mr. Espree, a sixteen-year employee of the defendant, Vanoil Completion Systems (Vanoil), claimed that he suffered a work-related injury, which resulted in the filing of a disputed claim for compensation on October 16, 2017. Mr. Espree was employed by Vanoil as press operator and hydrostatic tester, and his job duties included lifting, turning, and loading extremely heavy sections of pipe, called mandrels. Mr. Espree claimed that during the week of February 6, 2017, he sustained a rupture of a periumbilical hernia, together with lower back injuries, as a result of his heavy and strenuous work activity throughout the week. While Mr. Espree's original disputed claim asserted that the date of the injury was February 6, 2017, and the answer by Vanoil reflects a denial of the claim occurring on this date, his amended disputed claim for compensation, which was filed on March 7, 2018, asserted that the incident occurred on February 10, 2017.

Vanoil filed a motion for summary judgment on January 25, 2017. Following a July 30, 2018 hearing, the workers' compensation judge (WCJ) granted Vanoil's motion and signed a judgment that same day. However, the judgment, which was undated, merely stated that the motion for summary judgment was granted, without further decretal language, and was not designated as a final appealable judgment. Mr. Espree filed a petition for appeal, which was granted on September 13, 2018. On the lodging of the appeal, we filed a rule to show cause why the appeal should not be dismissed as having been taken from a judgment lacking proper decretal language. Our rule was withdrawn on the filing of an amended judgment from the WCJ, dated December 12, 2018, which included the proper decretal language, granting Vanoil's motion for summary judgment, and dismissing Mr. Espree's claim with prejudice.

In this appeal, Mr. Espree asserts that the WCJ "erred in granting Appellee's Motion for Summary Judgment because the Appellee's Motion did not prove that there was no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law on the issue of whether Appellant suffered a work related accident."

Louisiana Code of Civil Procedure Article 966 provides that summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La.Code Civ.P. art. 966(A)(2). It further provides that 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 will not bear the burden of proof at trial, then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Civ.Code art. 966(D)(1). Once this occurs, the burden 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." Id.

The supreme court in Smitko v. Gulf South Shrimp, Inc. , 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755, set forth our appellate standard of review of summary judgments, as follows:

Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ; Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 ; Duncan v. USAA Ins. Co. , 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ). 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. Hines , 876 So.2d at 765-66.

In Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam) (alteration in original), the supreme court stated:

We review a district court's grant of summary judgment de novo , viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if "there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law." La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor.

It is well-settled that the workers' compensation laws of this state should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc. , 95-1395 (La. 7/2/96), 676 So.2d 582. "[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence." Bruno v. Harbert Int'l Inc. , 593 So.2d 357, 361 (La.1992).

The question before this court is whether there is any issue of material fact as to whether Mr. Espree suffered a personal injury from an identifiable accident during the course and scope of his employment with Vanoil. An employee who "receives personal injury by accident arising out of and in the course of his employment" is entitled to workers' compensation benefits from his employer. La.R.S. 23:1031. An accident is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La.R.S. 23:1021.

In Montou v. Boise Cascade Co. , 14-1248, pp. 5-6 (La.App. 3 Cir. 4/1/15), 160 So.3d 637, 642, writ denied , 15-870 (La. 6/5/15), 171 So.3d 952 (alterations in original), this court stated:

When an employee alleges an injury under the Workers' Compensation Act, he carries the burden of proving the accident occurred, and that he suffered a disability as a result of that accident, by a preponderance of the evidence. Bruno v. Harbert Int'l. Inc. , 593 So.2d 357 (La.1992). The employee must show that the accident "directly produc[ed] at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La.R.S. 23:1021(1). See also Romero v. Chabillis' Tire Serv. Inc. , 97-1722, p. 4 (La.App. 3 Cir. 5/6/98), 714 So.2d 803, 804. However, "[a]n accident exists when heavy lifting or strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition." Bourgeois v. Seabright Ins. Co. , 12-834, p. 5 (La.App. 5 Cir. 4/10/13), 115 So.3d 50, 52-53.

By its motion for summary judgment, together with the documents and depositions submitted in support thereof, Vanoil has indeed raised the absence of factual support for one or more elements of Mr. Espree's claim, being proof that he suffered an accident. Vanoil offered a portion of Mr. Espree's deposition, in support of its motion for summary judgment, wherein he discussed how he was injured.

In his deposition, Mr. Espree stated that he was in pain on February 8 and 9, 2017, but he did not tell anyone with Vanoil about his pain until February 10, 2017, when he told Orell Daigle, Vanoil's quality assurance manager, that he was hurting and needed to see a doctor. He stated that he was unaware that he had suffered an injury until he saw the doctor, who sent him for x-rays and a CT scan. He said that he thought that his stomach and back pain were just age- and work-related. Mr. Espree stated that he felt that his work-related injury was related to a big job that he was working on the week of his injury, although he could point to no specific incident as the cause of his hernia. Although he stated that he did not overstrain, he later said that his doctor told him that he had overstrained.

Mr. Espree stated:
A. No. I didn't strain or nothing. It was just consistent - - I don't know the word I want to say.
MR. RICHARD:
Wear and tear on your body?
THE WITNESS:
Wear and tear on your body come - - you know, just straight - - just - - just over and over.

Mr. Espree stated that he first realized that he had suffered a work-related injury when he saw the doctor on Monday, February 13, 2017.

Q. So basically what's going on is that you're doing repetitive type activities for a long time, for years - -
A. Yes.
Q. - - and what you - -
A. Yes.
Q. - - what you believe is the accumulation of the years and years of you doing this repetitive type activity is what you believe caused you to have your hernia ?
A. Yes.
Q. All right. And that's why, when you went to the doctor on Monday, the - - what can we say, the 13th?
A. Yeah.
Q. - - the 13th, that is why at that point in time you, for the first time, realized that you had hurt yourself at work?
A. Yeah.
Q. And that's based on the doctor telling you that he was the repetitive wear and tear accumulation type situation?
A. Yeah. He said that I had over strained.
Q. Okay. Is there anything you would have brought me to that you think that any one thing that you did that you over strain on, or is it just this accumulation?
A. Just accumulation. I don't have - - I didn't have two jobs. I only had one job.

As Vanoil established the absence of factual support for one or more elements essential to Mr. Espree's claim, that an identifiable accident occurred, the burden shifted to Mr. Espree to produce factual support sufficient to establish a genuine issue of material fact as to whether he can prove that he suffered an accident, as defined by La.R.S. 23:1021(1).

In his affidavit, Mr. Espree stated the following:

I was employed by Vanoil Completion Services for 16 years as a Press Operator and Hydrostatic Tester.
My job duties included lifting, turning, and loading extremely heavy sections of pipe, called mandrels.
The week of February 6 - 10, 2017, was extremely busy. I was working with 4 ½ BRO/SL2 Mandrels, which weigh approximately 800 pounds.
I had to physically ram, by hand, a 40/50 pound piece of iron, called a "running tool" several times into the pocket or entry slot of the mandrel, to force/load a valve through that pocket to the end of the mandrel.
On February 10, 2017, while I was ramming the running tool against the valve, I felt like I had a knife stabbing me in my lower abdomen and increased back pain. I took a break and then went to the bathroom for a brief rest.
My brother, Christopher Espree, also an employee of Vanoil, saw me coming out of the bathroom, bent over in pain. He took over my job, as I could not perform my job duties anymore.
Shortly thereafter, I informed Orell Daigle, the QA Manager at Vanoil, that I needed medical attention. Mr. Daigle instructed me to go to the doctor and get myself checked out.

Mr. Espree further submitted a portion of his deposition, which reads in part as follows:

Q .... Monday, the 6th, it is a seven on February the 7th, which is a Tuesday. What about on Wednesday, how is it then?
A. At least a [sic] eight.
Q. Okay. And then Thursday, what is the pain on the Thursday?
A. The Thursday, it was still at - - between a [sic] eight and a nine.
Q. Okay. And on Friday, the 10th - -
A. Yeah.
Q. - - that's when it gets to a 10?
A. Yeah. It got real bad.
Q. All right. And on the Monday, when you started feeling these symptoms, did you communicate anything to the employer about symptoms or injury or accident or anything like that?
A. I called the - - the girl in the front, Amanda, and I told her I was feeling real bad, and I needed to go to a doctor.
Q. All right. And when you say you told her you were "feeling real bad" - -
A. Yeah.

Mr. Espree also submitted the affidavit of his brother, Christopher Espree, who was also employed by Vanoil:

I have been employed by Vanoil Completion Services for 14 years as a Robot Operator and Inside Diameter Grinder.
The week of February 6 - 10, 2017, was extremely busy at Vanoil. We were trying to get out an order of 4 ½ BRO/SL2 Mandrels.
I was sent to help my brother, Gilbert, with completing the order on February 10, 2017.
Gilbert was working with a running tool, repeatedly ramming the valve through the hole in the mandrel. Each valve has to be rammed with the running tool 8 to 10 times. We were hurrying, trying to finish the last 20 mandrels to complete the order. While working with the running tool, Gilbert stopped suddenly and said, "Hold up, hold up, I gotta take a break" and grabbed his stomach. Gilbert leaned on the pipe rack and I could see that he was suddenly in excruciating pain. Then Gilbert walked to the bathroom. When Gilbert returned, I could see the pain on his face. I could tell that something had happened because he could no longer lift or push to help finish the job.
I heard Gilbert tell Orell Daigle, the QA Manager at Vanoil, that he needed to go to the doctor. Orell replied, "You need to go check yourself out."

Based on the evidence presented by Mr. Espree, we find that he has presented factual support sufficient to raise a genuine issue of material fact as to whether he suffered a work-related accident. Despite Mr. Espree's deposition testimony regarding gradual wear and tear, there is evidence, based on his and his brother's affidavits, that he suffered an unexpected actual, identifiable, precipitous event, which happened suddenly or violently, and which directly produced objective findings of a periumbilical hernia. Although Mr. Espree could not point to a particular incident as evidence of an accident, his and his brother's affidavits both indicate that he began experiencing debilitating pain when he was physically ramming a forty to fifty pound piece of iron into the entry slot of an 800 pound piece of pipe. According to Montou , 160 So.3d 637, this would qualify as a work-related accident.

Even if Mr. Espree's hernia was preexisting, "a workers' preexisting condition does not bar his or her recovery under the workers' compensation laws because an employer takes the workers as he finds him or her. An abnormally susceptible workers is entitled to no less protection under the workers' compensation statute than a healthy worker." Baker v. Conagra Broiler Co. , 93-1230, p.8 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied , 94-1435 (La. 9/23/94), 642 So.2d 1289 (citations omitted). Accordingly, we reverse the trial court's grant of summary judgment in favor of Vanoil and remand the matter for further proceedings.

DISPOSITION

Based on the foregoing, we reverse the judgment of the workers' compensation judge granting summary judgment in favor the defendant, Vanoil Completion Systems, and remand the matter for further proceedings. The costs of this appeal are assessed to Vanoil Completion Systems.

REVERSED AND REMANDED.


author: Judge Rosemary Ledet

text:
    STATE of Louisiana v. Glen PAYNE
    NO. 2019-KA-0150
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 12, 2019
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR THE APPELLANT/DEFENDANT
    Leon Cannizzaro, DISTRICT ATTORNEY, ORLEANS PARISH, Donna Andrieu, CHIEF OF APPEALS, ORLEANS PARISH, Kyle Daly, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )
   Judge Rosemary Ledet

The defendant, Glen Payne, seeks review of his corrected sentence, imposed by the district court pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, we affirm.

PROCEDURAL HISTORY

In 1984, Mr. Payne was convicted of second degree murder and sentenced to life imprisonment without the possibility of parole. At the time of the murder, Mr. Payne was a juvenile. After the United States Supreme Court's decision Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which held Miller to be retroactive, Mr. Payne filed a motion to correct an illegal sentence. After a hearing, the district court granted Mr. Payne's motion and resentenced him to life imprisonment with the benefit of parole. Mr. Payne moved for and was granted an out-of-time appeal.

DISCUSSION

In his sole assignment of error, Mr. Payne contends that "[t]he record does not contain either a minute entry for the [re]sentencing proceeding or the Uniform Commitment Order required by [La.] C.C[r].P. art. 892" and that the absence of these documents from the record "will adversely impact Mr. Payne's right to be immediately considered for parole if other conditions have been met."

During the pendency of this appeal, however, the State, with the consent of Mr. Payne's appellate counsel, appeared before the district court and requested that the court create a minute entry and a uniform commitment order reflecting that the district court had previously resentenced Mr. Payne to life imprisonment with the benefit of parole. The district court granted the State's request and supplemented the record on appeal accordingly. The assignment of error is, thus, moot.

DECREE

For the foregoing reasons, Mr. Payne's sentence is affirmed.

AFFIRMED

      At the time, La. R.S. 15:574.4, which governs parole eligibility for juvenile defendants convicted of murder before Miller , provided for parole eligibility after thirty-five years. See Acts 2016, No. 509, § 3. After the district court resentenced Mr. Payne, the Legislature amended La. R.S. 15:574.4 to provide for parole eligibility after twenty-five years. See La. R.S. 15:574.4(G). See Acts 2017, No. 280, § 3.

      See La. C.Cr.P. art. 916(2) (conferring on district courts jurisdiction to "[c]orrect an error or deficiency in the record" during the pendency of an appeal). Consistent with La. R.S. 15:574.4(G), both documents reflect that Mr. Payne is parole-eligible after serving twenty-five years of his sentence.


text:
    Shayla DE LA ROSE v. Garey FORSTER, Secretary of the Louisiana Department of Labor
    NO. 2018-CA-0724
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 19, 2019
    Shayla De La Rose, P.O. Box 57464, New Orleans, LA 70157, COUNSEL FOR PLAINTIFF/APPELLANT/PRO SE
    J. Jerome Burden, LOUISIANA WORKFORCE COMMISSION, Legal Division, Post Office Box 94094, Baton Rouge, LA 70804-9094, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
    Judge Terri F. Love This appeal arises from the disqualification of unemployment compensation benefits. The trial court affirmed the decision of the Louisiana Board of Review ("Board of Review") to dismiss claimant's appeal of her disqualification of benefits after she failed to appear via telephone at the administrative hearing. In that the claimant failed to provide good cause for reopening pursuant to La. Admin. Code tit. 40:IV, § 113(D), we find no error in the trial court's ruling that affirmed the decisions of the Board of Review and the Louisiana Workforce Commission ("LWC"). Accordingly, we affirm.
    PROCEDURAL HISTORY AND FACTUAL BACKGROUND
    Shayla De La Rose ("Ms. De La Rose") was employed as a part-time security guard with Landmark Event Staffing Services, Inc. ("Landmark") from November 2015 to September 2016. Ms. De La Rose subsequently filed for unemployment benefits with the LWC. She was later disqualified from receiving unemployment compensation benefits. Relying on La. R.S. 23:1472(19), the LWC disqualified her when it discovered that Ms. De La Rose was the principle officer of Essential Rose, LLC, a company that provides wellness consulting, training, and management.
    Ms. De La Rose filed a request to appeal the decision with the LWC's Appeals Tribunal. An administrative hearing was scheduled for November 1, 2016. Notice of the hearing, to take place via telephone, was addressed and mailed on October 20, 2016, to the address of record. There is no evidence that the notice was returned undelivered. On the hearing date, the Appeals Tribunal made attempts to reach Ms. De La Rose at the number on the notice at the time the scheduled hearing was to take place and 15 minutes after. The Appeals Tribunal was unable to reach Ms. De La Rose. Consequently, the tribunal held Ms. De La Rose in default and dismissed her appeal. Ms. De La Rose then requested a reopening of her appeal. Her request was denied, however, because she failed to provide good cause why she did not have a reliable telephone number or provide a new contact number if her telephone was unreliable.
    Ms. De La Rose exercised her right to appeal the tribunal's dismissal and disqualification and sought review by the Louisiana Board of Review. The Board of Review found Ms. De La Rose's letter of appeal deficient. The Board of Review indicated in its findings that Ms. De La Rose failed to set forth a reason for her failure to appear at the scheduled hearing "that reasonably justifies a finding of good cause shown to excuse such failure." As a result, the Board of Review denied Ms. De La Rose's request for reopening and affirmed the tribunal's November 2016 decision. Thereafter, Ms. De La Rose filed a petition for judicial review with Civil District Court for the Parish of Orleans, seeking reversal of the Board of Review's decision to affirm the dismissal of her appeal. In May 2018, the trial court affirmed the Board's decision. Ms. De La Rose timely seeks review of the trial court's May 2018 ruling.
    STANDARD OF REVIEW
    La. R.S. 23:1634(B) sets forth the standard of review used by the trial court in reviewing decisions made by the Board of Review, which states in pertinent part:
    In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.
    Id. ; Stuart Consulting Group, Inc. v. Loyless , 16-247, p. 4-5 (La. App. 5 Cir. 12/7/16), 209 So.3d 278, 282. "Judicial review of the findings of the Board is strictly limited to first, a determination of whether the facts are supported by competent evidence, and second, whether the facts as a matter of law, justify the action taken. Id. , 16-247,p. 5, 209 So.3d at 282 (citing Lewis v. Administrator , 540 So.2d 491, 496 (La. App. 1st Cir. 1989) ). Further, "[j]udicial review of the findings of the Board does not permit the weighing of evidence, drawing of inferences, reevaluation of evidence, or substituting the views of the court for that of the Board as to the correctness of the facts presented." Id.
    DISCUSSION
    Ms. De La Rose avers the trial court erred when it affirmed the Board of Review's dismissal of her appeal for failure to appear via telephone at the administrative hearing. Ms. De La Rose argues that she demonstrated good cause to justify her failure to appear at the scheduled hearing. In particular, Ms. De La Rose asserts that at the time the hearing was to take place her cellular telephone's data function was inadvertently turned off, preventing her from receiving telephone calls or text messages.
    Pursuant to La. Admin. Code 40:IV, § 113(B),
    [i]f the appellant, who is the party who files the appeal before the Appeals Tribunal, fails to appear or fails to be available to participate in a telephone hearing within 15 minutes after the scheduled hearing time, the administrative law judge shall order the appellant in default and issue a dismissal of appeal. In such event, the agency determination shall become the final decision.
    Further, under the statute, the appellant may file a written request for reopening to the administrative law judge with a showing of good cause. Id. If the administrative law judge denies the request for reopening, the "request shall be forwarded to the board of review as an appeal." Id. Additionally, "[i]f it is determined...by the board of review on appeal that the appellant has shown good cause for his nonappearance, the dismissal shall be vacated and a new hearing on the merits shall be scheduled." Id.
    The appellant must provide in writing "a statement of the reason(s) for his failure to act in a timely manner and reasonably justifies a finding of good cause to excuse such failure." La. Admin. Code 40:IV, § 113(D)(1). In determining whether the appellant has shown good cause in an appeal, the board of review "shall consider any relevant factors, including, but not limited to: (a) reasonably prudent behavior; (b) untimely receipt of notice; (c) administrative error; (d) reasons beyond control or avoidance; (e) reasons unforeseen; (f) timely effort to request continuance; (g) physical inabilities; (h) degree of untimeliness; or (i) prejudice to parties." La. Admin. Code 40:IV, § 113(D)(2).
    In this case, Ms. De La Rose timely filed her appeal with the Appeals Tribunal on October 5, 2016. Proper notice of the scheduled telephone hearing was mailed to Ms. De La Rose at her address of record on October 20, 2016. The notice indicated the date and time of the hearing as Tuesday, November 1, 2016, at 10:30 a.m. The notice also included information regarding the telephone number at which the Appeals Tribunal would contact Ms. De La Rose. Likewise, the notice set forth instructions in the instance there was a change to her contact number. The notice indicated that any change in Ms. De La Rose's contact number must be provided within two days of the hearing date.
    The notice of the October 2016 administrative hearing was addressed and mailed to the address of record. The notice was not returned undelivered by the U.S. Postal Service, nor does Ms. De La Rose assert that she was not in receipt of the notice.
    Louisiana jurisprudence has established that proof of mailing notice creates a presumption of receipt, but that the presumption may be rebutted with sufficient evidentiary proof. See Beasley v. Puglise , 454 So.2d 1125, 1127 (La. App. 4th Cir. 1984) ; Houston v. Administrator of Division of Employment Sec. , 191 So.2d 167, 169-70 (La. App. 3rd Cir. 1966) (remanding to the Board of Review for taking additional evidence after finding "the presumption of receipt of a letter properly addressed and mailed is rebuttable"). On appeal, Ms. De La Rose does not contend that she did not receive proper notice of the hearing in a timely manner. Rather, she challenges the dismissal of her appeal because she did not receive the tribunal's call and later discovered that her cellular phone's data function was turned off. Once her cellular provider turned on the telephone's data function, she was able to use her cellular phone for calls and text messages.
    Notwithstanding the functionality issues of her cellular phone, Ms. De La Rose did not provide any new contact information pursuant to the notice prior to the hearing. Similarly, Ms. De La Rose did not request a continuance. Ms. De La Rose was not available at the number on the notice at the time of the scheduled hearing or 15 minutes after. Given Ms. De La Rose failed to answer her telephone at the time of the hearing, the hearing was not conducted and no testimony was taken. As a result, the Appeals Tribunal found her in default and dismissed her appeal.
    The Board of Review affirmed the Appeal Tribunal's decision as the facts were supported by sufficient and competent evidence to justify the conclusion that Ms. De La Rose failed to timely appear for her scheduled hearing and that her circumstances did not warrant remand. The only issue for the trial court to determine on appeal was whether the Board of Review had sufficient cause to deny reopening. We find Ms. De La Rose failed to appear via telephone at the administrative hearing at the scheduled time provided in the notice or 15 minutes after. Moreover, Ms. De La Rose has failed to show good cause why she did not have a reliable telephone to participate in her hearing and failed to provide a new contact number if her telephone was unreliable.
    Based on the evidence in the record before us we find no error in the trial court's judgment that affirmed the Board of Review's decision to dismiss Ms. De La Rose's appeal.
    DECREE
    We find the facts found by the Board of Review are supported by the sufficient and competent evidence that justifies its conclusion that Ms. De La Rose failed to timely appear for her scheduled administrative hearing. Moreover, we find the circumstances surrounding her failure to appear, namely issues with her cellular phone's functionality, do not warrant a remand. We find no error in the trial court's May 2018 ruling that affirmed the decisions of the Board of Review and the Appeals Tribunal, which found Ms. De La Rose in default and dismissed her appeal. Accordingly, we affirm.
    AFFIRMED

      According to the transcript from the hearing on the petition for judicial review, the trial court took note of a discrepancy in the relief Ms. De La Rose sought as compared to the request for unemployment compensation benefits she made with the LWC. Ms. De La Rose testified that she was not seeking unemployment compensation benefits from her most recent employer, Landmark. Rather, she was seeking unemployment compensation benefits from a previous employment from which she had not collected. Ms. De La Rose raises the same issue again in her brief to this Court. Similar to the trial court, we will not address the merits of this particular claim as it is not before us on appeal.


author: WHIPPLE, C.J. GUIDRY, J., dissenting.

text:
    STATE of Louisiana v. Tyeesha L. KIRSH
    2015 KA 1856
    Court of Appeal of Louisiana, First Circuit.
    September 20, 2016
    Warren L. Montgomery, Matthew Caplan, Covington, LA, Counsel for Appellee, State of Louisiana
    Lieu T. Vo Clark, Mandeville, LA, Counsel for Defendant/Appellant, Tyeesha L. Kirsh
    BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
   WHIPPLE, C.J.

The defendant, Tyeesha L. Kirsh, was charged by felony bill of information with simple criminal damage to property (with a value of five hundred dollars or more but less than fifty thousand dollars), a violation of LSA-R.S. 14:56 and by misdemeanor bill of information with resisting an officer, a violation of LSA-R.S. 14:108 (count 1) and telephone harassment, a violation of LSA-R.S. 14:285(A)(1). The defendant pled not guilty to all charges and, following a simultaneous jury trial and bench trial, was found guilty as charged on all counts. The defendant filed a motion for new trial, which was denied. For the simple criminal damage to property conviction, the defendant was sentenced to three-years imprisonment at hard labor; the sentence was suspended, and the defendant was placed on five years of supervised probation. For each of the (two) misdemeanor convictions, the defendant was sentenced to five days in the parish jail (with credit for time served). All sentences were ordered to run concurrently. The defendant now appeals, designating three assignments of error. We affirm the misdemeanor convictions and sentences. We affirm the felony conviction for simple criminal damage to property, but we amend the three-year sentence to two years imprisonment at hard labor, with all issues related to probation maintained, and affirm, as amended. We remand for correction of the minutes and, if necessary, the commitment order.

FACTS

Teri McGovern owned and managed Slidell Village North Development, a housing development of twenty-five duplexes (fifty units), operated with federal funding, under a project-based "Section 8" contract. The defendant and her children moved into Unit 563 on Beechwood Drive in Slidell in October of 2012. On March 20, 2014, Slidell Village North Development, through McGovern, obtained a judgment of eviction in Slidell City Court to have the defendant removed from the premises. The defendant was given notice of the judgment, informing her that she had thirty days to comply with the judgment. However, by April 20, 2014, the defendant had not moved out of her apartment.

Slidell City Marshall, Wyatt Williams, was then called to the apartment on April 20, 2014 to ensure that the defendant moved out all of her possessions.

Williams testified at trial that while it was not a forced eviction, he "would consider it a near-forced eviction." According to Williams, the eviction case required "a little shoving" or a "little encouragement," and the defendant was unhappy over being evicted from her apartment. When asked what types of things the defendant was telling him while he stood by to ensure her departure, Williams testified, "You don't want to hear all of it. She was very hostile and she was taking her time."

When the defendant moved out, housing management conducted a videotaped walk-through of the apartment. According to McGovern, the defendant threatened her both before and after this videotape was made. The defendant also left several harassing phone messages on McGovern's answering machine, shortly following the move-out. The damages to the apartment totaled just under one thousand dollars and included holes and dents in the walls, writing and scribbling on the walls, a damaged heater system, a light fixture pulled from the ceiling, damage to the bathroom vanity, smoke alarm, kitchen faucet, refrigerator and punctured gas line.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In these related assignments of error, addressed together by the defendant, the defendant argues, respectively, that the trial court erred in denying her motion in limine to exclude at trial evidence of the misdemeanor charges and the trial court, in failing to exclude this evidence, erred in denying her motion for new trial.

The defendant was charged on the same day in separate bills of information. The felony bill of information charged her with simple criminal damage to property, and the misdemeanor bill of information charged her with resisting an officer and telephone harassment. Both misdemeanor charges carried maximum sentences of a fine of not more than five hundred dollars or imprisonment for not more than six months, or both. See LSA-R.S. 14:108(C) & LSA-R.S. 14:285(C). On the day of trial, defense counsel filed a motion in limine to preclude introduction of any evidence connected to the telephone-harassment and resisting-arrest misdemeanor charges. Prior to voir dire, the motion in limine was taken up by the presiding judge. Specifically, defense counsel averred that the State could not join misdemeanors with a felony, stating that:

[T]he evidence against Ms. Kirsh in the misdemeanor matter has to do with telephone recordings that are alleged to be harassing in nature. If the State seeks to introduce any of that evidence of the misdemeanors, specifically the telephone recordings, we argue, first, it is barred by 404(B) because it's generally offered by the State only to prove Ms. Kirsh's bad character, as outlined in the motion, unless subject to an exception. For example, unless the recordings prove lack of mistake, motive, et cetera, the State cannot introduce this evidence under 404(B). Further, if the Court finds that the statements are admissible under 404(B), they also have to be admissible under 403. 403 says the statement must not be substantially more prejudicial, confusing to the jury or misleading than it is probative.
We argue here that, at best, the probative value of the statements and recordings would be Ms. Kirsh was very angry, and a very angry person might tend to do criminal damage. That probative value is minimal. It is not an essential element of the State's case in the criminal damage matter. The prejudicial nature of the statements, however, is great. They are full of profanity and racial epithets.
Ms. Kirsh herself believes that the prosecution is racially motivated. I cannot make a representation on that issue, but I can say it definitely colors the statements that she made. I am requesting to have the Court review the statements, if the State intends to introduce them, and make a ruling on 404(B) and 403.

One of the prosecutors then replied:

Your Honor, I don't think 404 applies as res gestae. You don't need 404(B) notice of res gestae. These statements were made during the time when the eviction proceedings were going on and taking place, and it's not like it's a two-minute crime. This eviction lasted for over thirty day [sic] to try to get her removed from those apartments. Those telephone calls came right at the end of those thirty days as she was being evicted. It's res gestae evidence that took place during the commission of her committing this crime, and they're admissible as such without 404(B) notice.
* * *
It goes to show that she had the intention to destroy this apartment way beyond normal wear and tear of an apartment that was in perfectly good condition ninety days before.

The trial judge informed counsel that he would rule on the motion after the jury was selected. Following voir dire, the trial judge denied the defendant's motion in limine, stating as follows:

As to the Motion in Limine, the Court has, during the break, reviewed the three recordings, although one is simply a continuation of the first, which is the subject of the Motion in Limine. The Motion in Limine is denied. The recordings in question obviously could be accepted by the jury in one of several ways: one having to do with exculpation; one having to do with intent; others having to do with simply whatever purpose the jury may draw from.
* * *
I am not sure that this is true 404(B) evidence since it is permissible under 493 of the Code of Criminal Procedure to try both the telephone harassment, which was inextricably interwoven with the underlying criminal damage charge, so it forms a portion of the elements of the alleged offense of telephone harassment. The prejudicial effect is certainly present, but the probative value outweighs that.

The defendant argues in brief that the trial judge was erroneous in his interpretation of LSA-C.Cr.P. art. 493. According to the defendant, because the misdemeanor charges and felony charge were not triable by the same mode of trial, joinder of those offenses was improper. The defendant further argues that evidence of the telephone harassment charge and of resisting an officer was irrelevant and did nothing more than prejudice the jury against her. The defendant was arrested about three months after the criminal damage to property allegations. Thus, the defendant avers, evidence surrounding her arrest was "nothing more than the facilitation of irrelevant and prejudicial information of another crime to convince the jury" that she was "a bad person of bad character." Further, this evidence had no independent relevancy in her felony trial. The defendant also argues that the harassing telephone calls did not "exhibit an intent" by her to have committed the crime of simple criminal damage to property. According to the defendant, the substance of the phone messages was essentially "a denial of the criminal charges in the felony matter." The defendant suggests that LSA-C.E. art. 404(B) allows only for the introduction of this type of evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. According to the defendant, the phone messages clearly amounted to a strong denial of these elements.

The trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. See State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam). On review, we find no reason to disturb the trial judge's ruling on the defendant's motion in limine to exclude other crimes evidence. While the trial judge's reasoning was erroneous, insofar as it intimated that joinder of the offenses was proper, his ultimate decision at trial to allow evidence of the defendant's phone messages was correct.

Louisiana Code of Criminal Procedure article 493 states:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Louisiana Code of Criminal Procedure article 495.1 provides: "If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires."

Consolidation of cases is governed by LSA-C.Cr.P. art. 706, which states:

Upon motion of a defendant, or of all defendants if there are more than one, the court may order two or more indictments consolidated for trial if the offenses and the defendants, if there are more than one, could have been joined in a single indictment. The procedure thereafter shall be the same as if the prosecution were under a single indictment.

Louisiana Code of Criminal Procedure article 779 provides:

A. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

Louisiana Code of Criminal Procedure article 782(A) provides, in pertinent part:

Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

Resisting an officer and telephone harassment are misdemeanors, with maximum sentences of six months; as such, they were not triable by a jury. See LSA-R.S. 14:108(C), LSA-R.S. 14:285(C), & LSA-C.Cr.P. art. 779(B). See also LSA-C.Cr.P. art. 493.1. Simple criminal damage to property (with damage from five hundred dollars to less than fifty thousand dollars) is a felony that may be punished with or without hard labor and, therefore, was triable by a jury. See LSA-R.S. 14:56 (B)(2) & LSA-C.Cr.P. 782(A). Thus, as correctly pointed out by the defendant, the two misdemeanor offenses (which were properly joined in the same bill of information) and the single felony offense (filed under a separate bill of information) were not triable by the same mode of trial and, thus, could not have been joined in a single indictment pursuant to LSA-C.Cr.P. art. 493.

There were no written or oral motions made by either the prosecutor or defense counsel, for joinder of the charges or for consolidation of the two bills of information. The felony and misdemeanor offenses were charged in separate bills of information, and thus, were not "joined." Consolidation occurs when offenses charged by separate bills of information are tried together in one trial. See LSA-C.Cr.P. art. 706. In this case, there was neither consolidation nor joinder. Instead, based on agreement by all parties, two separate trials were held simultaneously, with the felony charge being tried by the jury and the two misdemeanor charges being tried by the trial court alone. See State v. Johnson, 98-604 (La.App. 5th Cir. 1/26/99), 728 So.2d 901, 904, writ denied, 99-0624 (La. 6/25/99), 745 So.2d 1187.

Although the separate trials occurred simultaneously, so that the jury heard all evidence relating to all three charges, the evidence of the harassing phone calls by the defendant was admissible as "res gestae" at the felony trial. The only evidence adduced at trial regarding the resisting-an-officer offense was through Officer Corey Pertuit, with the Slidell Police Department, who testified that there was an outstanding arrest warrant on the defendant, the defendant gave a false name when questioned by him, and she yelled and resisted being handcuffed.

Moreover, given the procedural posture of this trial, wherein defense counsel filed a motion in limine and supporting memorandum to exclude other crimes evidence but subsequently agreed on simultaneous bifurcated trials, none of the evidence adduced at trial regarding the three charged offenses was other crimes evidence. The State was required to establish the elements of each of the three substantive criminal charges against the defendant. Any intention or desire to have only the trial judge hear the evidence of the misdemeanor offenses and the jury hear evidence only of the felony offense was never communicated to the court at trial. While it appears the intent of the motion in limine was to keep certain evidence away from the jury so as to minimize any "bad character" evidence, defense counsel's written motion, oral arguments, and objections never conveyed any such strategic objective.

While both misdemeanors were alluded to in a one-sentence written motion in limine filed on behalf of the defendant on the day of trial, at the hearing on the motion in limine, defense counsel neither raised nor discussed the resisting-an-officer charge or how evidence of this offense would prejudice the defendant. The only offense at issue and addressed by both counsel at the hearing was the telephone-harassment charge. Similarly, in accord with defense counsel's actual arguments at the hearing, the trial judge's ruling set forth that he reviewed the phone messages, and that they were admissible other crimes evidence. Thus, at the motion-in-limine hearing, there was no mention, discussion, or ruling by the trial judge regarding the resisting-an-officer charge. The trial judge specifically noted in his ruling that, during the break, he had reviewed the three recordings, "which is the subject of the Motion in Limine." (Our emphasis).

During the State's case-in-chief, Officer Pertuit was questioned by another prosecutor. After Officer Pertuit testified that he had gone to the Slidell Village North Development on July 7, 2014, about two-and-one-half months after the defendant had damaged the property, defense counsel raised an objection regarding Officer Pertuit's testimony. The following colloquy occurred regarding this objection:

[Defense counsel]: Assuming he's about to introduce evidence of the remaining after forbidden-and it's included in the Motion in Limine-but we object to the joinder, attempting to try these cases together.
The Court: The only thing I saw joined was the telephone harassment and resisting an officer.
[Prosecutor]: This deals primarily with the resisting an officer. We're not going to get into the telephone harassment.
[Defense counsel]: All right. Well, I think the gravamen, the misjoinder, already mentioned in the Motion in Limine. Note my objection to joining the misdemeanor charges to the felony; they're not triable in the same mode of trial.
The Court: As to the resisting, I had assumed that the resisting arose in connection with the arrest on either the criminal damage or the telephone harassment.
[Prosecutor]: It's in the warrant.
The Court: It's in the warrant. Then, in that case, the objection is overruled. That was my understanding.
[Defense counsel]: To be clear, Judge, our position is the arrest happened three months after the alleged criminal activity; it cannot in any way be connected to whether she did or did not do the things that the warrants were put out for.
The Court: I understand your position, and that is correct. However, the fact of arrest on the warrant for the charge for which she's on trial is certainly germane.
[Defense counsel]: Only the fact, but nothing else.
The Court: And I'm allowing the resisting to go forward based on the fact that she resisted arrest to that warrant. I understand you disagree.

Thus, while defense counsel continued to object to wrongful joinder, it appears his concern was that evidence of the resisting-an-officer charge would constitute inadmissible other crimes evidence. Counsel could have requested that the jury be removed so that only the trial judge would hear the evidence of the defendant's resisting an officer. However, no such request was made. Moreover, the trial judge's finding that "the fact of arrest on the warrant for the charge for which she's on trial is certainly germane" (our emphasis), suggests the judge correctly viewed the testimony adduced from Officer Pertuit as evidence properly required for the State to establish the charged crime of resisting an officer, rather than as prejudicial other crimes evidence.

Nonetheless, because of the unusual posture of this bifurcated trial, and because defense counsel apparently sought to exclude evidence of the phone calls and resisting an officer as impermissible other crimes evidence, we will address the merits of the defendant's arguments on this issue.

Louisiana Code of Evidence article 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La.App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

While other crimes or wrongful acts are prohibited from being used to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." LSA-C.E. art. 404(B). Formerly known as "res gestae," evidence that constitutes an integral part of the crime is admissible without prior notice to the defense.

State v. Brown, 95-124 (La.App. 5th Cir. 5/30/95), 656 So.2d 1070, 1075. See Johnson, 728 So.2d at 910. In State v. Brewington, 601 So.2d 656, 657 (La.1992), the Louisiana Supreme Court stated:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. The concomitant other crimes do not affect the accused's character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. [Citations omitted].

Here, the defendant was removed from her apartment on April 20, 2014. The defendant placed three phone calls to Teri McGovern, the owner and site manager of Slidell Village North Development, which comprised fifty units, including the defendant's apartment. The phone calls, recorded on McGovern's telephone answering machine, were placed by the defendant on April 21, 2014, and April 23, 2014 (with one call on April 21 and two calls on April 23). All three messages were profanity-laced tirades. The defendant was clearly very upset that she had been removed from the apartment. She repeatedly called McGovern a "white bitch" and accused her of trying to take things from black people. On the message she left the day after she moved out, the defendant erupted, "F--k white people, f--k the marshal, f--k all you cracker bitches..."; then, "I hate you mother f--kers and y'all gonna suffer for every f--king thing that y'all doing for black people and poor people period."

The evidence of these phone messages helped complete the State's presentation of the attendant circumstances of the felony crime on trial by proving the defendant's state of mind and the immediate context of events near in time and place. Integral act (res gestae) evidence incorporates a rule of narrative completeness without which the State's case would lose its narrative momentum and cohesiveness. See State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 741-742, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). We find any prejudicial effect from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence. See LSA-C.E. art. 403. Moreover, the phone messages were admissible to establish the defendant's intention, inclination, and proclivity to damage the apartment. Accordingly, the other crimes evidence at issue had an independent relevance to show intent, motive, and opportunity pertaining to the instant offense and was therefore admissible for this purpose under LSA-C.E. art. 404(B)(1). See State v. Gatlin, 2014-298 (La.App. 5th Cir. 10/29/14), 164 So.3d 891, 896-97, writ denied, 2014-2518 (La. 9/25/15), 178 So.3d 565. See also State v. Scott, 2009-1658 (La. 10/22/10), 48 So.3d 1080, 1085 (per curiam).

We find, further, that even if the other crimes evidence of the phone messages and resisting an officer had been inadmissible, the admission of such evidence would have been harmless error. See LSA-C.Cr.P. art. 921. The erroneous admission of other crimes evidence is a trial error subject to harmless-error analysis on appeal. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in this case "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) ; Johnson, 664 So.2d at 100.

In the instant matter, we are unable to find that the defendant was so prejudiced by the evidence as to negate the probative value of the phone messages. The defendant's apartment was videotaped when she moved in. There were no signs of damage indicated on the video walk-through. The apartment was again videotaped following the defendant's departure. The "move out" camera inspection, which occurred the day after the defendant moved out, revealed considerable damage to the apartment. The kitchen faucet was broken; there were holes, some quite large, in the walls throughout the apartment; the smoke alarm had been pulled down; refrigerator shelves were broken and missing; a closet door had been wrested from its bottom hinge; a light fixture globe was missing; another light fixture was missing, with the wires from that fixture pulled from the ceiling; the bathroom vanity was "full of cigarette burns" and had to be replaced; and on the heater system, the wires had been cut and the heater gas valve had been impaled by a screwdriver. Both videotapes were played for the jury. McGovern testified about the extensive damage to the apartment, including the costs of replacement and repair, and indicated that the total damages were $988.00. Accordingly, the State's evidence clearly established the defendant's guilt. As such, the guilty verdict rendered was surely unattributable to any evidence of phone messages from the defendant to McGovern, and any error in allowing such other crimes evidence to be presented to the jury was harmless. See Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.

Evidence of the defendant's conduct of resisting an officer did not have similar probative value as the phone messages and, as such, arguably constituted impermissible other crimes evidence. Nevertheless, as noted above, the evidence at trial so overwhelmingly established the defendant's guilt, that the guilty verdict rendered in this case for simple criminal damage to property was surely unattributable to any error of allowing at trial evidence that the defendant resisted an officer a few months later. See Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.

Based on the foregoing, the trial court did not abuse its discretion in denying the defendant's motion in limine to preclude other crimes evidence at trial. As such, there was no abuse of discretion in the trial court's denial of the motion for new trial.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In the third assignment of error, the defendant argues that her three-year sentence is illegally excessive.

This assignment of error has merit. For the simple criminal damage to property conviction (damage from five hundred dollars to less than fifty thousand dollars), the defendant was sentenced to three-years imprisonment at hard labor (which was suspended, with the defendant placed on five years of supervised probation). The sentencing range for simple criminal damage to property where the damage amounts to five hundred dollars, but less than fifty thousand dollars, is zero to two-years imprisonment. See LSA-R.S. 14:56(B)(2). Thus, the defendant's sentence is illegally excessive.

The trial court apparently sought to sentence the defendant to the maximum period allowable under the law. Accordingly, we amend the suspended sentence to two-years imprisonment at hard labor, with probation and all conditions related to it to remain in place. Resentencing is not required. See LSA-C.Cr.R art. 882(A). We remand the case, however, and instruct the trial court to amend the minute entry of the sentencing and, if necessary, the commitment order. See State v. Benedict, 607 So.2d 817, 823 (La.App. 1st Cir.1992). See also State v. Miller, 96-2040 (La.App. 1 Cir. 11/7/97), 703 So.2d 698, 700-01, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459.

MISDEMEANOR CONVICTIONS AND SENTENCES AFFIRMED. FELONY CONVICTION AFFIRMED; SUSPENDED FELONY SENTENCE AMENDED FROM THREE TO TWO YEARS IMPRISONMENT AT HARD LABOR; FIVE YEAR SUPERVISED PROBATION PERIOD AND PROBATION RESTRICTIONS MAINTAINED; AND AFFIRMED, AS AMENDED. REMANDED WITH INSTRUCTIONS.

Guidry, J., dissents and will assign reasons.

McClendon, J., concurs in the result reached.

GUIDRY, J., dissenting.

I respectfully disagree with the majority's decision affirming defendant's felony conviction for simple criminal damage to property. In the instant case, counsel for the defendant filed a motion in limine prior to trial seeking to exclude evidence of other crimes, including misdemeanor charges for telephone harassment and resisting an officer. The majority finds that with regard to the telephone harassment charge, which arose from three hostile and racially-laden phone messages left by the defendant on the owner and site manager's answering machine, this evidence was relevant and admissible as "res gestae" evidence. However, I disagree that the phone messages, which were made after the defendant was evicted from and moved out of her apartment and which made no reference to damaging the property at issue, "completed the State's presentation" of the offense of criminal damage to property or that the State could not have accurately presented its case without reference to this evidence. See State v. Brewington, 601 So.2d 656, 657 (La.1992). Further, the timing of the messages also belies the state's admissibility argument under La. C.E. art. 404(B)(1).

Furthermore, I disagree with the majority's determination that even if this other crimes evidence was inadmissible, the admission of such evidence was harmless error. As noted above, the content of the phone messages consisted of predominately racially and profanity laced comments directed to the complex owner and site manager. Accordingly, given the highly prejudicial content of the phone messages and the circumstantial evidence offered by the State as to the damage caused to the apartment, I cannot say beyond a reasonable doubt that the error in the admission of this evidence did not Contribute to the verdict obtained. See State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 100.

Finally, while the majority correctly notes that the admission of evidence regarding the defendant's conduct in resisting an officer lacked probative value and constituted impermissible other crimes evidence, I likewise disagree that admission of this evidence constituted harmless error.

Therefore, because I find that the trial court abused its discretion in denying defendant's motion in limine and likewise abused its discretion in denying defendant's motion for new trial, I respectfully dissent from the majority opinion.

      According to the trial judge's comments, he was under the belief that all parties consented to proceeding to trial on the felony and misdemeanor charges. However, only the felony docket number was called on the date of trial. As such, the judge stated that was the reason that the misdemeanor charges were not included on the jury instructions. The court then proposed that the misdemeanor be submitted to the court on the evidence that had been presented at the felony trial; otherwise, the misdemeanors would have to be tried at a later date. Defense counsel clarified that it had not been their belief that they were proceeding on the misdemeanor charges as well, as he had specifically objected to that in his pleadings. It is not until the sentencing hearing on the felony charge where defense counsel consented to trial of the misdemeanor charges and felony charges at the same time, whereupon the trial court issued this ruling on those charges.


author: WHIPPLE, C.J.

text:
    CORLEY ENTERPRISES OF LOUISIANA, INC. v. BEAR CREEK SALOON, INC., First Financial Insurance Company, Brassco, Inc., and XYZ Insurance Company
    NUMBER 2018 CA 1147
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 28, 2019
    A. Todd Caruso, Denham Springs, LA, Counsel for Plaintiff/Appellee, Corley Enterprises of Louisiana, Inc.
    Andre C. Gaudin, Joseph J. Valencino, Metairie, LA, Counsel for Defendants/Appellees, Bear Creek Saloon, Inc. and First Financial Insurance Company
    Sean M. Casey, Mandeville, LA, Counsel for Defendant/Appellee, Brassco, Inc.
    R. Todd Musgrave, Brent J. Carbo, New Orleans, LA, Counsel for Intervenor/Appellant, Certain Underwriters at Lloyd's of London
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Certain Underwriters at Lloyd's of London (collectively "the Underwriters"), as insurers of a property owner, appeal a judgment of the trial court maintaining a peremptory exception of prescription in favor of defendant/appellee, Brassco, Inc., ("Brassco") and dismissing the Underwriters' petition for intervention with prejudice. For the reasons that follow, we reverse the judgment of the trial court and remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the pleadings filed herein, Bear Creek Saloon, Inc. ("Bear Creek") entered into a lease agreement with Corley Enterprises of Louisiana, Inc. ("Corley") to lease property owned by Corley located at 36031 Highway 16 in Montpelier, Louisiana. The lease agreement provided for a term commencing on January 1, 2014 and terminating on December 31, 2018. On April 26, 2014, Bear Creek, which operated a restaurant and bar on the property, hosted a country music concert at the bar. Thereafter, the bar closed at 1:30 a.m. and all employees left the bar by shortly after 2:00 a.m. At some point thereafter, a fire started on the premises, which ultimately rendered the building and contents a total loss.

On April 27, 2015, Corley filed a petition for damages against: Bear Creek; First Financial Insurance Company, Bear Creek's insurer; Brassco, and Brassco's insurer. In the petition, Corley averred that Bear Creek, as lessee of the property, was negligent in failing to maintain the premises in a good and safe condition pursuant to the terms of the lease, and that the fire and resulting damages were caused by the acts, carelessness, and negligence of Bear Creek. As to Brassco, Corley averred that Bear Creek had the sprinkler system inspected annually by Brassco, and that at Brassco's last inspection, on March 20, 2014, inspector Brian Berthalot found the system to be in working order. Corley further alleged that after the fire in June of 2014, however, the Fire Marshall advised Elmus Corley that the main inlet valve on the system was found to be in the "closed" position at the time of the fire, such that the sprinkler system did not work as intended. Accordingly, Corley sought damages and reimbursement for restoration and replacement of its damaged property and all associated ancillary costs, as well as damages for loss of business income and use of the property, and attorney's fees.

On July 17, 2017, the Underwriters, as subrogee to the rights of Corley, filed a petition for intervention against Bear Creek, First Financial Insurance Company, Brassco, and its insurer, contending that the Underwriters provided commercial property insurance to Corley under Policy No. HIS13-488, which included certain insurance coverage on the property. The Underwriters contended that they paid $ 550,000.00 in benefits to Corley in connection with this claim, and that under the provisions of the policy, they were legally and/or conventionally subrogated to the rights of Corley to obtain reimbursement and/or indemnification for the negligence of the defendants. The Underwriters contended that, in the event Corley was awarded damages against the defendants, such recovery should be apportioned in the judgment such that the claims of the Underwriters for reimbursement and/or indemnity for all amounts paid by the Underwriters to or for the benefit of Corley should take precedence over Corley's claims, to the full extent of such payments made by the Underwriters.

On September 21, 2017, Brassco filed an exception of prescription as to the Underwriters' petition for intervention, contending that the incidental demand was prescribed as it was not filed until almost two years after Brassco was served with Corley's petition for damages, and not within ninety days of the date of service of the main demand purportedly required by LSA-C.C.P. art. 1041. Brassco accordingly sought dismissal of the claims asserted in the Underwriters' petition for intervention with prejudice.

Following a trial on the exception, the trial court granted Brassco's exception of prescription and subsequently issued reasons for judgment finding that the Underwriters' petition for intervention was untimely pursuant to LSA-C.C.P. art. 1041 (formerly LSA-C.C.P. art. 1067 ) and Stenson v. City of Oberlin, 2010-826 (La. 3/15/11), 60 So.3d 1205. The trial court concluded that the claims asserted by the Underwriters in their petition for intervention should be dismissed with prejudice. The trial court signed a written judgment in conformity with its reasons on April 23, 2018.

The Underwriters then filed the instant appeal, contending that the trial court erred in maintaining Brassco's exception of prescription and in finding the Underwriters' petition for intervention was untimely based on LSA-C.C.P. art. 1041 and Stenson, where they aver neither applies to the subrogation claims asserted by the Underwriters in their petition for intervention.

DISCUSSION

The issue before us on appeal is whether an insurer's incidental demand (petition for intervention) asserting a claim of subrogation in a suit filed by its insured, arising out of the same factual occurrence as that pleaded by the insured, and involving a single cause of action shared by the insurer and its insured, is governed by the provisions of LSA-C.C.P. art. 1041, or whether the insured's timely filed suit serves to interrupt prescription as to the insurer's subrogation claims against defendants.

Under the principle of subrogation, the insurer stands in the shoes of the insured and acquires the right to assert the actions and rights of the plaintiff. Louisiana Farm Bureau Casualty Insurance Company v. Burkett, 2018-0468 (La. App. 1st Cir. 11/2/18), 266 So. 3d 908, 911, citing A. Copeland Enterprises. Inc., v. Slidell Memorial Hospital, 94-2011 (La. 6/30/95), 657 So.2d 1292, 1298. Pursuant to Louisiana law, a subrogated insurer has the same right as its insured to a direct action against liability insurers of third parties. Louisiana Farm Bureau Casualty Insurance Company v. Burkett, 266 So. 3d at 911.

Prescription runs against all persons unless exception is established by legislation. LSA-C.C. art. 3467. There are exceptions, however, to this general rule: (1) LSA-C.C.P. art. 1153 allows an amending petition to relate back to the date of the original pleading; (2) LSA-C.C.P. art. 1041 allows an additional ninety days for an incidental demand; and (3) in circumstances where the parties share a single cause of action. Gallagher Bassett Services, Inc., v. Canal Insurance Company, 2016-0088 (La. App. 1st Cir. 9/16/16), 202 So.3d 1160, 1164.

In support of their sole assignment of error, the Underwriters contend that as the subrogated insurer of the plaintiff, Corley, they share a single cause of action with Corley arising out of the same factual occurrence pled by Corley in its main demand with reference to the property damage caused by the fire herein. As such, the Underwriters contend that the filing of the original petition by Corley interrupted prescription as to both Corley and the Underwriters.

In doing so, the Underwriters rely on Louviere v. Shell Oil Company, 440 So.2d 93, 95 (La. 1983). In Louviere, the Supreme Court held that when the claims of both the employee and compensation insurer were based on the cause of action consisting of the material facts which are the basis of the employee's right to recover damages, suit by either the employee or the employer's compensation insurer interrupted prescription for both as to this single cause of action. The Supreme Court reasoned that prescription was indeed interrupted by the filing of the compensation carrier's suit, since "there is only one principal cause of action, and the compensation insurer is asserting part of the employee's cause of action, because the insurer has paid part of the employee's damages and is entitled to recover to the extent of those payments as partial subrogee." Louviere v. Shell Oil Company, 440 So.2d at 95. Thus, the Supreme Court reasoned that where several parties share a single cause of action (as through partial subrogation), suit by one interrupts prescription as to all. Louviere v. Shell Oil Company, 440 So.2d at 96. The Court further concluded in Louviere that once prescription is interrupted by the filing of a suit, interruption continues during the pendency of the suit, and begins to run anew from the last day of the interruption. Louviere v. Shell Oil Company, 440 So.2d at 96-98.

The Supreme Court noted however, that when a suit by a second party states a different cause of action than the suit by the first party, even though each cause of action is based in part on common facts, the first suit does not interrupt prescription as to the subsequent cause of action. Louviere v. Shell Oil Company, 440 So.2d at 96 ; cf. Stamps v. Canal Indemnity Insurance Company, 2009-1961 (La. App. 1st Cir. 3/1/10), 35 So.3d 1127 (per curiam).

The Underwriters further rely on Fair Grounds Corporation v. ADT Security Systems, 97-2375 (La. App. 4th Cir. 9/23/98), 719 So.2d 1110, writ denied, 98-3098 (La. 2/5/99), 738 So.2d 6, which they contend applied the holding of Louviere to a case virtually identical to the instant case. In that case, after suffering extensive damages resulting from a fire, the Fair Grounds Corporation filed suit in December of 1994 for various damages, including property damage. The Fair Grounds' insurer, Allianz Underwriters Insurance Company, which had paid the Fair Grounds the policy's limits of $ 5,000,000.00 for property losses after the fire, intervened in the suit the day before trial began in February of 1997, asserting claims of subrogation to recover funds paid. While the matter was on appeal, the Fair Grounds filed an exception of prescription, contending that any claim of subrogation by Allianz had prescribed under the one-year liberative prescription applicable to delictual actions, and that Allianz' petition for intervention, filed over two years after the original petition was filed, had prescribed. Relying on Louviere, the Fourth Circuit denied the exception of prescription, reasoning as follows:

Allianz' petition for intervention arose out of the same factual occurrence as that initially pleaded by the Fair Grounds, and both the Fair Grounds and its subrogated insurers share a single cause of action. Under these circumstances, we conclude that the Fair Grounds' timely-filed [sic] suit against defendants interrupted the running of prescription against Allianz.

Fair Grounds Corporation v. ADT Security Systems, 719 So.2d at 1119.

Contrariwise, Brassco argues that in the instant case, the intervention filed by the Underwriters in Corley's suit is prescribed because it is a delictual action filed both: (1) after the one-year prescriptive period set forth in LSA-C.C. art. 3492 had run; and (2) after the ninety-day "exemption/extension" period for filing incidental demands set forth in LSA-C.C.P. art. 1041 had run. In support, Brassco cites Stenson v. City of Oberlin, 60 So.3d at 1205.

In Stenson, the Louisiana Supreme Court was called upon to resolve a split in the circuits as to whether LSA-C.C.P. art. 1153 (the "relation back doctrine' ") controlled an action by intervening plaintiffs or whether LSA-C.C.P. art. 1041, providing the time limitation exception for incidental demands, governed. See Stenson v. City of Oberlin, 60 So.3d at 1206. Therein, a number of residents of the City of Oberlin brought claims for property damage and personal injury caused by sewerage overflow. The Stensons' original petition was filed on October 20, 2003, and the petitions of all residents were eventually consolidated on September 22, 2004. The Stensons filed a first supplemental and amending petition on that same date, and thereafter filed a second supplemental and amending petition for recognition of class status on March 11, 2005. The last defendant was served with the second supplemental and amending petition on March 17, 2005. On July 20, 2006, more than ninety days after service of the main demand on the last defendant, the Fuselier plaintiffs, sought to join in the pending litigation and filed a petition for intervention asserting claims similar to those asserted by plaintiffs in the consolidated petitions. A defendant filed an exception of prescription as to the Fuseliers' petition of intervention, claiming that the filing of their incidental demand was untimely because it was barred by prescription when the Stensons' second supplemental and amending petition was filed and also because it was not filed within ninety days of the date of service of the second supplemental and amending petition pursuant to LSA-C.C.P. art. 1041. The Fuseliers argued in opposition that their intervention was timely because it related back to the original petition filed by the Stensons under LSA-C.C.P. art. 1153 and the factors set forth in Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La. 1985). See Stenson v. City of Oberlin, 60 So.3d at 1207.

After the trial court maintained the exception of prescription, the appellate court reversed the trial court, concluding that the filing of the original petition by the Stenson plaintiffs had interrupted prescription for the benefit of the Fuselier plaintiffs' intervening suit. Noting that there had been some confusion in the jurisprudence in determining whether LSA-C.C.P. art. 1153 or LSA-C.C.P. art. 1041 governed a petition filed by an intervening plaintiff, the Louisiana Supreme Court granted writs to resolve the apparent split in the circuit courts. See Stenson v. City of Oberlin, 60 So.3d at 1208.

On review, the Supreme Court determined that, for purposes of prescription, the court of appeal erred in applying LSA-C.C.P. art. 1153 (the "relating back" provision) to the Fuseliers' intervening petition rather than LSA-C.C.P. art. 1041. See Stenson v. City of Oberlin, 60 So.3d at 1208. The Court held that where Article 1041 provides an exception to prescription or peremption for incidental demands, and an intervention is an incidental demand, Article 1041 is the applicable statute governing the exception of prescription for an intervention. See Stenson v. City of Oberlin, 60 So.3d at 1214. The Court further opined that, in contrast, Article 1153 provides a means for determining when an amendment adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes, and that Article 1153 allows a plaintiff to amend his petition to add a plaintiff, claim, or defendant, but that no code article allows a party or potential party to amend another party's pleading to do so. Thus, applying LSA-C.C.P. art. 1041, the Court found that the Fuseliers' petition for intervention had prescribed where it was not filed within ninety days of service of the last defendant. See Stenson v. City of Oberlin, 60 So.3d at 1214.

In the instant case, the Underwriters contend that Stenson has no application to the issue currently before this court where neither Stenson, nor the cases abrogated by Stenson, involved claims of subrogation or any scenario where two parties might share in the same cause of action. The Underwriters aver that Stenson required an analysis of LSA-C.C.P. art. 1041 because there was no interruption of prescription in that case based on any shared cause of action as with a subrogation claim. The Underwriters contend that LSA-C.C.P. art. 1041 is an exemption statute, not a prescription statute, and only comes into play if a claim is already prescribed. The Underwriters argue that where prescription is interrupted on separate grounds, there is no need for any analysis whatsoever under Article 1041.

The Underwriters refer to the following recent analysis by this court in Gallagher Bassett Services. Inc., v. Canal Insurance Company, 202 So.3d at 1164, which purportedly illustrates the distinction:

Prescription runs against all persons unless they fall within an exception provided by law. La. C.C. art. 3467. The filing of a tort suit by one party generally does not affect the running of prescription against other parties who sustained separate damages in the same accident. Louviere v. Shell Oil Co., 440 So.2d 93, 95 (La. 1983). There are exceptions to the general rule: (1) La. C.C.P. art. 1153 allows an amending petition to relate back to the date of filing the original pleading; (2) La. C.C.P. art. 1067 allows an additional ninety days for an incidental demand; and (3) when parties share a single cause of action. Colbert v. Batiste, 2012-852 (La.App. 3 Cir. 2/6/13), 109 So.3d 505, 507 (citing Louviere, 440 So.2d at 93 ). [Emphasis added.]

The Underwriters contend that Stenson only addressed the first two of the three exceptions set forth above because Stenson did not involve a situation where the parties shared a cause of action. The Underwriters contend that it would be a "quantum leap" in analysis to interpret Stenson as changing the law regarding the prescription rule for insurance subrogation claims when Stenson did not involve a subrogation claim, did not discuss the application of its holding to subrogation claims in which the parties share a single cause of action, and did not overrule Louviere, or cases applying the principles set forth in Louviere to incidental demands asserting subrogation claims such as Fair Grounds Corporation. We agree.

In the instant case, the insured, Corley, timely filed suit against defendants to recover property damages resulting from the fire. Corley's insurer, the Underwriters, subsequently intervened to recover monies paid to Corley for property damages resulting from the fire. Because the Underwriters' petition for intervention arose from the same factual occurrence as that initially pleaded by Corley, and both Corley and the Underwriters, as Corley's subrogated insurer, share a single cause of action, we find that the timely filing of suit by Corley interrupted prescription as to the intervention claims asserted by the Underwriters. See Fair Grounds Corporation v. ADT Security Systems, 719 So.2d at 1119.

Accordingly, we find the trial court erred in maintaining Brassco's peremptory exception of prescription and dismissing the Underwriter's subrogation claims with prejudice.

CONCLUSION

For the above and foregoing reasons, the April 23, 2018 judgment of the trial court is hereby reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to defendant/appellee, Brassco, Inc.

REVERSED AND REMANDED.

      Although not entirely clear from the pleadings, Elmus Corley appears to be a representative of Corley Enterprises of Louisiana, Inc. in some capacity.

      Although Brassco referred to LSA-C.C.P. art. 1041 as LSA-C.C.P. art. 1067 in its exception, prior to the filing of its exception, LSA-C.C.P. art. 1067 was redesignated as LSA-C.C.P. art. 1041 by La. Acts 2017, No. 419, § 5, effective August 1, 2017. The text of this article, however, was not altered by the redesignation.

      The judgment dismissing all of the claims asserted by the Underwriters in their petition for intervention is a final judgment for purposes of appeal. See LSA-C.C.P. art. 1915(A)(1).

      In Stamps, plaintiff filed suit against a tortfeasor and his insurer for personal injury damages. Plaintiff's insurer subsequently filed a cross claim against defendants asserting claims of subrogation for property damages previously paid to plaintiff. On review, this court distinguished Louviere, stating:
      [t]his case, by contrast, involves claims for personal injury damages brought against a tortfeasor and his liability insurer, together with the plaintiffs' insurer, and involves a cross-claim by the plaintiffs' insurer for property damage, thereby implicating two separate causes of action. [Emphasis added.]
      This court thus determined that where the insured's suit was for personal injuries and the insurer's incidental demand asserted claims of subrogation for property damages, two separate causes of action were implicated, and the provisions of LSA-C.C.P. art. 1041 (then 1067) applied. Stamps v. Canal Indemnity Insurance, 35 So.3d at 1133.

      Louisiana Code of Civil Procedure article 1041 provides that:
      An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

      Louisiana Code of Civil Procedure article 1153 provides that:
      [w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

      As Stenson pre-dated the article's redesignation, Article 1041 is referenced as Article 1067 in the opinion.

      In Giroir, the Louisiana Supreme Court set forth relative factors to consider when applying LSA-C.C.P. art. 1153 to the addition or substitution of a plaintiff or claim. Giroir v. South Louisiana Medical Center. Division of Hospitals, 475 So.2d at 1044.

      Pursuant to LSA-C.C.P. art. 1031(B), a demand of intervention is an incidental demand.

      By this ruling, the Stenson Court abrogated Allstate v. Theriot, 376 So.2d 950 (La. 1979), Calbert v. Batiste, 2009-514 (La. App. 3rd Cir. 11/4/09) 23 So.3d 1031, In re Matranga, 2006-0604, 2006-0605 (La. App. 4th Cir. 12/20/06), 948 So.2d 261, and Riddle v. Simmons, 626 So.2d 811 (La. App. 2nd Cir. 1993).