text:
    STATE of Louisiana v. Major Cartrell JONES
    18-138
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018 Rehearing Denied December 19, 2018
    Don M. Burkett, District Attorney, Post Office Box 1557, Many, LA 71449, (318) 256-6246, COUNSEL FOR APPELLEE: State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Major Cartrell Jones
    Major Cartrell Jones, Camp D Falcon-2, Louisiana State Prison, Angola, LA 70712, IN PROPER PERSON
    Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   AMY, Judge.

The State charged the defendant with second degree murder and manslaughter after the victim's remains were found in the victim's burned home. A forensic pathologist testified that the cause of death was stab wounds to the heart and spleen. Upon testing, DNA consistent with that of the defendant was identified from blood evidence located both at the victim's home and in the victim's car. A jury convicted the defendant of second degree murder and found that the defendant had specific intent to kill. Following a denial of the defendant's post-verdict motions, the trial court sentenced the defendant to serve life imprisonment at hard labor without the possibility of parole, probation, or suspension of sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

This matter stems from the July 17, 2014 death of the victim, James Paul Green, at his home in Fisher, Louisiana. The record indicates that, on that evening, authorities proceeded to the home after a 911 call from a neighbor informing them Mr. Green's home was on fire. The caller, Melissa DeLoach, explained on the call that Mr. Green's car was not at the residence.

Authorities responded to the scene, including Fisher Chief of Police Lamar Thomas, Jr., a neighbor of Mr. Green. Chief Lamar stated that he could see Mr. Green's home "engulfed" in flames from his front porch. Having noticed Mr. Green drive by his home earlier in the evening, Chief Lamar explained that it "rested [his] mind" when he arrived and found that Mr. Green's Chevrolet Cavalier was not at the home. Chief Lamar stated that although the fire was extinguished that night, he returned to the scene the following morning after being informed that firefighters located a body in the residence. Subsequent examination was required to identify the body due to its poor condition. That process revealed Mr. Green to be the victim. Employees of the Louisiana State Fire Marshall explained that although the investigation identified no ignitable liquids, the fire was determined to have started in the kitchen and to have been caused by human intervention.

The record indicates that the investigative team identified blood evidence both at Mr. Green's home and in his car, which was located after it was abandoned in Zwolle. According to Captain Charles Russell Edwards of the Fire Marshall's office, the vehicle was found to contain Mr. Green's wallet as well as three, one-dollar bills. He explained that a fire had been started in the floorboard of the vehicle.

The fire did not spread beyond the immediate area.

During their investigation, detectives of the Sabine Parish Sheriff's Department twice interviewed the defendant, obtaining a DNA sample from him at that time for subsequent testing. According to Monnie Michalik, a forensic DNA analyst of the North Louisiana Criminalistics Laboratory, evidence acquired from both the residence and the car, including the money found in the car, were consistent with the defendant's reference sample. Certain samples were consistent with a mixture of DNA consistent with samples from the defendant and Mr. Green.

In May 2016, a grand jury returned a bill of indictment and charged the defendant with second degree murder, a violation of La.R.S. 14:30.1, providing two bases for that charge. The State amended the indictment in August 2016, first asserting that the defendant committed second degree murder by specific intent to kill or inflict great bodily harm upon Mr. Green. See La.R.S. 14:30.1(A)(1). The State alternatively alleged that the offense occurred while the defendant was engaged in the perpetration or attempted perpetration of armed robbery or aggravated arson, even though he had no specific intent to kill or inflict great bodily harm. See La.R.S. 14:30.1(A)(2).

In opening arguments to the jury, the State alleged that the defendant had persuaded a friend, Tina Sepulvado, to drive him to Fisher on the night of the offense and alleged that he had informed her that he was going to visit his cousin. Referencing the defendant's interviews with investigators, the State argued that the defendant concealed Mr. Green's identity from Ms. Sepulvado as he was travelling to the residence to receive oral sex in exchange for money. The State alleged that, while in the house, the defendant stabbed the victim, once in the heart and once in the spleen, and inflicted additional bodily wounds. Responding, defense counsel questioned both the presence of specific intent to kill and further argued as to the absence of evidence that either of the alleged underlying felonies occurred prior to the defendant's death.

At the close of deliberations, the jury returned a verdict of: "Guilty of Second Degree Murder - Specific Intent to kill." Afterwards, the defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal. By those motions, the defendant asserted that the testimony from one of the investigating detectives suggested that certain material was not disclosed in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After hearing additional testimony pertaining to the Brady allegation, the trial court denied both motions. The trial court sentenced the defendant to the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See La.R.S. 14:30.1(B) ("Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.").

The defendant appeals. By counseled brief, the defendant asserts that:

I. The Trial Court erred in finding Major Jones guilty of second degree murder.
II. The Trial Court erred in finding that a Brady violation did not occur.

The defendant also files a brief in proper person, alleging that: "His trial counsel rendered ineffective assistance when [he] failed to file [a] motion to quash the indictment on [the] basis of a fatal defect[.]"

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920(2), this court reviews matters on appeal for errors "discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." Following review, we note that the record does not demonstrate that the defendant was arraigned following the amendment of the bill of indictment. However, as the defendant proceeded to trial without objection, any such error is waived. See La.Code Crim.P. art. 555. We identify no additional errors patent.

Sufficiency of the Evidence

By his first assignment of error, defense counsel contends that the State failed to present sufficient evidence to prove the elements of second degree murder beyond a reasonable doubt. Defense counsel specifically questions the element of specific intent and contends, instead, that "the trier of fact erred in finding [him] guilty of second degree murder instead of manslaughter as the record supports such a reduction."

An appellate court considers a defendant's challenge to the sufficiency of the State's pursuant to the standard articulated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard requires the reviewing court to inquire as to whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier could have found the essential elements of the crime proven beyond a reasonable doubt. Id. Furthermore, in its application of Jackson , "a reviewing court is not permitted to second guess the rational credibility determinations of the fact finder at trial, nor is a reviewing court required to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict." State v. Kelly , 15-0484, p. 3 (La. 6/29/16), 195 So.3d 449, 451 (citing State v. Marshall , 04-3139 (La. 11/29/06), 943 So.2d 362, cert. denied , 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007) ). "It is not the function of an appellate court to assess credibility or reweigh the evidence." Id. (citing State v. Stowe , 93-2020 (La. 4/12/94), 635 So.2d 168 ).

In pertinent part, La.R.S. 14:30.1 provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]

Louisiana Revised Statutes 14:10(1) defines "specific criminal intent" as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." The supreme court has explained that "[s]pecific intent need not be proven as a fact, but may be inferred from the defendant's actions and the circumstances of the transaction." State v. Broaden , 99-2124, p. 18 (La. 2/21/01), 780 So.2d 349, 362 (citing State v. Maxie , 93-2158 (La. 4/10/95), 653 So.2d 526 ), cert. denied , 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). Further, specific intent "can be formed in an instant[.]" State v. Cousan , 94-2503, p. 13 (La. 11/25/96), 684 So.2d 382, 390.

As pertinent to the defendant's claim regarding manslaughter, La.R.S. 14:31(A)(1) provides that:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed[.]

"The elements of 'sudden passion' and 'heat of blood' are mitigatory facts in the nature of a defense, and when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate." State v. Deal , 00-0434, p. 5 (La. 11/28/01), 802 So.2d 1254, 1260, cert. denied , 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).

Significantly, "[s]pecific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun." State v. Riley , 11-673, p. 11 (La.App. 5 Cir. 3/13/12), 90 So.3d 1144, 1150 (citing State v. Knight , 09-359 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, writ denied , 10-2444 (La. 10/21/11), 73 So.3d 376 ), writ denied , 12-0855 (La. 9/28/12), 98 So.3d 828. It further may be "inferred from the extent and severity of the victim's injuries." Id. (citing State v. Stacker , 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied , 03-0411 (La. 10/10/03), 855 So.2d 327 ).

In asserting that the State failed to prove specific intent, the defense counsel suggested in its closing argument that the State left a "black hole" for the period after the defendant entered the home with no specific evidence regarding the circumstances surrounding the stabbing death. Counsel referenced Ms. Sepulvado's testimony wherein she explained that, on the car trip to Fisher, the defendant's demeanor was calm and that, while waiting on the defendant to return, she heard bumping noises coming from inside the home. Counsel contended that this testimony supported, at most, a finding of manslaughter when coupled with questioning during the defendant's interrogation wherein the investigator suggested that the defendant travelled to the home for sex and that Mr. Green could be aggressive in such circumstances. We address the defendant's claim of manslaughter below, first discussing his contention that the State filed to prove specific intent to kill to support the conviction for second degree murder.

Following review of the record in its entirety pursuant to the Jackson standard, we conclude that the jury's finding of specific intent is supported. We first note the cause of death. Dr. Long Jin, qualified as an expert in forensic pathology, explained that the autopsy he performed on Mr. Green's body revealed that the victim died before the occurrence of the fire. Dr. Jin identified the cause of death as two stab wounds to the body, one to the heart, which came from the front, and one to the spleen. Dr. Jin explained that the autopsy further revealed multiple "defects, probably caused by the - the blunt force[.]" He explained that the latter defects were on Mr. Green's back and were consistent with having been hit with the claw part of a hammer. The record indicates that such a hammer was located on the floor of the kitchen, as was Mr. Green's body. As noted above, a factfinder may infer specific intent to kill by the intentional use of a weapon such as a knife or a gun. See Riley , 90 So.3d 1144. Here, the defendant sustained two stab wounds and multiple "defects" supportive of such a finding as to that state of mind. See La.R.S. 14:10(1) ("Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act[.]" See State v. Boyer , 406 So.2d 143, 150 (La.1981) (wherein the supreme court concluded that the defendant's shooting of the victim in the head at close range permitted the inference that "he actively desired her death to follow his act.").

In addition to the jury's ability to infer specific intent from the nature of the inflicted wounds, the jury further heard of evidence supporting other circumstances indicative of that intent. Namely, the State presented evidence supporting a view that the defendant fled from the scene by taking Mr. Green's car, that he attempted to conceal the offense through the burning of both the home and the car, and that he thereafter attempted to avoid apprehension. In this latter regard, the jury heard recordings of the defendant's two interrogations with authorities in which he denied, among other things, his presence at the house and his involvement in Mr. Green's death. Both interrogations were played for the jury. In State v. Carmouche , 12-1052 (La.App. 3 Cir. 4/3/13), 117 So.3d 136, a panel of this court observed that, in addition to the alleged close-range shooting of the victim in that case, the defendant's flight from the scene to avoid capture was a surrounding circumstance indicative of specific intent to kill. The panel's discussion included a passage from State v. Davies , 350 So.2d 586, 588 (La.1977), wherein the supreme court explained that " '[e]vidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt.' " Carmouche , 117 So.3d at 146.

Finally, and while the defendant suggests that the State's allegation of specific intent was inconsistent with Ms. Sepulvado's testimony regarding his calm demeanor prior to entering the home, it is important to recall that specific intent may be formed in an instant. See Cousan , 684 So.2d 382. Thus, the defendant's demeanor upon entering the home was not determinative of the jury ultimate conclusion as to specific intent. Finally, the record is silent as to the jury's credibility determinations related to Ms. Sepulvado's perception of the defendant's demeanor or her observations at the home.

Given those circumstances, we conclude that a rational trier of fact could have determined from the record evidence that the defendant inflicted the deadly wounds by stabbing in a manner consistent with specific intent to kill or inflict great bodily harm.

Manslaughter

We turn to the defendant's alternative argument that the evidence was supportive, at most, of a conviction for manslaughter due to the presence of mitigating factors of sudden passion or heat of blood. See La.R.S. 14:31(A)(1). In this regard, the defense counsel contends in brief to this court that the defendant "went to the residence to make some quick pocket money in exchange for sex[,]" and that "[i]t is highly likely" that he and Mr. Green "had a quarrel once Major was inside the residence" and that Mr. Green was killed as a result.

Certainly, as referenced above, when the factors of "sudden passion" and "heat of blood" are established by a preponderance of the evidence, a verdict of murder is inappropriate. Deal , 802 So.2d 1254. After review, we find that any rational trier of fact could have found that these mitigating factors were not proven. We above referenced the defendant's suggestion that the State's presentation of evidence left a "black hole" as to what occurred after he left the home and Ms. Sepulvado heard noises coming from the home. However, the record is similarly limited in that regard for purposes of establishing sudden passion or heat of blood. Significantly, the defendant did not testify as to the events in the home, nor did he offer any explanation as to his actions upon questioning by investigators. As noted by the defendant, Ms. Sepulvado testified that she heard a "boom" and "thump" from inside the home before receiving a call from the defendant telling her to leave the scene. She further explained that the defendant sounded frantic or scared. However, that testimony does not undermine the jury's conclusion that a reduction of the conviction to manslaughter was not warranted under the evidence presented. Instead, such limited evidence provided no context to any "provocation sufficient to deprive an average person of his self-control and cool reflection." La.R.S. 14:31(A)(1).

Accordingly, we leave the defendant's conviction undisturbed following review for sufficiency of the evidence.

Alleged Exculpatory Evidence

Defense counsel next argues that the trial court erred in failing to determine that the State failed to disclose alleged exculpatory evidence pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194. The defendant's initial argument on this point arose during the questioning of Detective Jack Staton of the Sabine Parish Sheriff's Department. Detective Staton's two recorded interrogations of the defendant were introduced into evidence and played for the jury at the time he was questioned. On cross examination, defense counsel inquired about Detective Staton's assertion to the defendant that he knew that Mr. Green was "pushy" and that they were aware of how he "operated." The following colloquy between defense counsel and Detective Staton provides:

Q Det. Staton, when you made that comment about, "We know he's pushy. We know how he operates..." who were you referring to?
A I was referring to Mr. Green.
....
Q When you - when you - before that, when you spoke about, "We not saying you killed him..." or something that effect, and then you paused and you said - you spoke about "heat of passion" and "doing things you don't mean to do" and all of that, what were you talking about?
A That was just a technique that I used to try to get to him to let him know that if he did do it, I understood him. By going along - you can do things through passion.
Q So you had -
A We had - let me back up. He wasn't the first - I didn't want to get into all of this because that was personal, but we had d[one] a lot of investigation with individuals that w[ere] involved in this. We had a black book that we had interviewed people with, and it was spoken - the part about "knowing how he was aggressive" - he was and all that had been told to us by other people.
Q How - how -
A This is way -
....
Q How many?
A Heck, I don't know? We had it in the notes. We had to go back over. We had a - we had a book. And I didn't feel like - I wasn't gonna get out and broadcast that. Yes, his personal life was his personal life. He - it was his. I was merely letting him know that we knew about the passion when I was telling him that through a heat of passion, maybe they got into a fight or whatever. We didn't know at that time.
Q Okay.
A And that's what I was trying to get.

In his motion for new trial and corresponding motion for post-verdict judgment of acquittal, the defendant suggested that by reference to a "book[,]" and to "notes," Detective Staton was referring to a book of investigative notes compiled by authorities. The defendant contended that such a book constituted undisclosed Brady material insofar as it had information from individuals who had personal knowledge of Mr. Green's purported aggressive nature. As it does here, the State argued in opposition that the only "book" referred to was Mr. Green's address book, an item listed in the return of the search warrant for Mr. Green's home. The State noted that the defendant had access to open file discovery.

Pursuant to the defendant's Brady argument, the trial court granted a motion for further testimony and conducted a hearing at which members of the investigative team were called as witnesses. The trial court ultimately denied the defendant's motions for new trial and post-judgment verdict of acquittal. Following review, we maintain that ruling.

We first point out a defendant's claim pursuant to Brady includes three components: "[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Generally, even in the presence of a discovery violation that involves the State's failure to disclose exculpatory evidence, a reversal is not required unless that "nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Id. , 527 U.S. at 281, 119 S.Ct. 1936. See also State v. Garrick , 03-0137 (La. 4/14/04), 870 So.2d 990.

However, the defendant's argument fails upon consideration of the second component of the Brady claim. Simply, testimony does not reveal the existence of the type of compiled investigative notes on which the defendant bases his argument. First, the construction urged by the defendant requires a parsing of Detective Staton's testimony that is not readily plain. Additionally, the three of the members of the investigative team called to testify at the further contradictory hearing denied having knowledge of notes as described by the defense. Instead, each referred to the black address book collected from Mr. Green's home. The lead investigator, Detective Anthony Lowe, Jr., explained that he interviewed certain individuals in the address book, naming more significant contacts in his report. He denied having taken notes or that he was given notes by the team members. Detective Lowe pointedly responded "[a]bsolutely not" when asked whether any type of notebook of notes was compiled. He further confirmed that the search warranted return listed the address book and that it had been stored with other evidence obtained.

Given Detective Staton's testimony at trial as well as the further testimony propagated pursuant to the post-verdict motions, we find no merit in the defendant's assertion that the trial court erred in rejecting his allegation of a Brady violation. Instead, the record supports the trial court's denial of both the motion for new trial and the motion for post-verdict judgment of acquittal.

This assignment lacks merit.

Supplemental Brief

The defendant has filed a brief in proper person alleging that his trial counsel was ineffective for failing to file a motion to quash the indictment. He contends the bill should have been quashed because it listed underlying offenses that should have not been included. Regarding ineffective assistance, this court has explained:

A criminal defendant is guaranteed the effective assistance of counsel pursuant to U.S. Const. amend. VI and La. Const. art. 1, § 13. In pursuit of such a claim of ineffective assistance of counsel, a defendant must establish "(1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect." State v. Leger , 05-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142-43 (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Washington , 491 So.2d 1337 (La.1986) ), cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). However, a claim of ineffective assistance of counsel is typically more properly resolved by post-conviction proceedings as it allows the trial court to conduct a full evidentiary hearing, if warranted. Id. However, if the appellate record contains sufficient evidence to review the defendant's claim, the matter may be considered on appeal in the interest of judicial economy. Id.

State v. Harris , 13-133, pp. 5-6 (La.App. 3 Cir. 12/11/13), 156 So.3d 694, 699-700, writ denied , 14-0476 (La. 11/7/14), 152 So.3d 169.

In support of his argument, the defendant suggests that the underlying charges should not have been in the indictment as he was not arrested for those charges. We note that the record reveals only an arrest warrant for simple arson, a violation of La.R.S. 14:52. However, the warrant states that prior to the residential fire, the victim died "by homicide violence." The indictment initially charged the defendant with specific-intent second degree murder or felony-murder second degree murder with the underlying offenses listed as armed robbery, first degree robbery, second degree robbery, simple robbery, or aggravated assault. The amended indictment retained armed robbery and aggravated arson as underlying felonies.

On this point, we recognize that arrest is merely custodial and is not the basis of a defendant's subsequent trial and conviction. An arrest affidavit simply states a legal basis for taking person into custody. See La.Code Crim.P. arts. 201 - 203. Criminal proceedings are instituted and stated in an indictment. See La.Code Crim.P. arts. 381, 382, 383, 464. Further, a defendant may be indicted even after being discharged due to a preliminary examination or after a grand jury has previously refused to indict. See La.Code Crim.P. art. 386.

As the defendant notes, trial counsel filed a "Motion for Supplementary Discovery Concerning Offenses Listed on Bill of Indictment." Counsel specifically stated therein that he had been provided with routine discovery, but that said discovery did not include information regarding the underlying offenses charged in the initial indictment. Counsel further stated, "Neither has the defendant been arrested or charged for such offenses." As observed, however, the absence of arrest for those charges was not pertinent; further, the alleged deficiencies in the discovery materials were addressed in a hearing.

At the hearing conducted on the motion, the parties agreed to amend the indictment to eliminate first and second degree robbery and simple robbery charges. While that agreement appears to have resolved the discovery issues, the defendant contends in his brief to this court that the State lacked authority to amend the indictment. However, in State v. Lafleur , 13-1082, pp. 11-12 (La.App. 3 Cir. 3/5/14), 134 So.3d 167, 175, this court explained:

In State v. Williams , 44,418, p. 8 (La.App. 2 Cir. 6/24/09), 15 So.3d 348, 353-54, writ denied , 09-1746 (La. 3/26/10), 29 So.3d 1250, the second circuit addressed the State's authority to amend indictments, stating:
The prosecutor has the authority under La. C. Cr. P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant's right under La. C. Cr. P. art. 489 to move for a continuance if the amendment led to his prejudice. State v. Crochet , 05-0123 (La. 6/23/06), 931 So.2d 1083. The purpose of a continuance is to protect defendant from surprise or prejudice which may result from such amendment. State v. Cleveland, 25,628 (La.App.2d Cir. 1/19/94), 630 So.2d 1365. When the state requests an amendment to the bill of information before the first prospective juror is called, the defendant's remedy is a motion for continuance, not an objection to the amendment. State v. Ignot , 29,745 (La.App.2d Cir. 8/24/97), 701 So.2d 1001, writ denied , 99-0336 (La. 6/18/99), 745 So.2d 618.
Accordingly, the defendant's remedy was to seek a continuance, not an objection to the amendment to the bill of information.

The defendant also argues the time limitations for commencement of trial expired. While he does not explain his argument further, the defendant cites La.Code Crim.P. art. 581. Reference to Article 581 indicates that it is part of the Criminal Code's chapter on limitations for commencing trial after the institution of prosecution. Yet, as previously noted, the initial indictment was filed on May 31, 2016. Since the trial commenced later that same year, the commencement of trial was well within the limits set by La.Code Crim.P. art. 578.

Also, the defendant complains that he did not have a "72 hour hearing" on the charge of second degree murder. However, the lack of such a hearing, which addresses such issues as appointment of counsel and setting of bail, has no effect on later proceedings. See La.Code Crim.P. art. 230.1(D) (providing that "[t]he failure of the sheriff or law enforcement officer to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.").

Next, the defendant asserts that the indictment did not inform him of the nature and cause of the case against him. Reference to the indictment reveals basic allegations informing the defendant that he was being charged with committing the specific-intent murder of James Paul Green on July 17, 2014 or the felony-murder of the same victim on the same date, with two possible underlying felonies listed. After considering the record, we find no indication that the defendant was not informed as to the nature of the proceedings against him.

Although he does not provide supporting argument or excerpts from the record, the defendant also suggests that the trial court's jury instructions improperly shifted the burden of proof to him. Following review, however, we find no merit to this unsupported argument.

Finally, at the close of his brief, the defendant reiterates his general claim that trial counsel should have filed a motion to quash due to defects in the bill of indictment. However, as discussed above, the defendant points to no actual defects in the bill. To the extent that the defendant repeatedly claims that trial counsel failed to properly investigate his case, such arguments are related to his arguments regarding discovery, a point addressed in the above Brady discussion. Accordingly, finding that the defendant has failed to demonstrate that counsel's performance was defective pursuant to Strickland , 466 U.S. 668, 104 S.Ct. 2052, we conclude that the defendant's assignment lacks merit.

DECREE

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

AFFIRMED.

      Ms. DeLoach's stepson testified that from the window of their home he saw the lights in Mr. Green's home go out, come on, and go out again. After seeing a bright flash coming from the residence, he then saw fire coming from the home's kitchen window. Ms. DeLoach thereafter called authorities.

      For example, Ms. Michalik testified that testing performed on a sample taken from the home scene was consistent with the defendant's reference sample. She explained that "[t]he probability of finding that exact same DNA profile from a randomly selected individual on Earth was approximately 1 in 1.3 quintillion[.]" Swabs taken from the driver door and from the passenger-side dashboard of Mr. Green's vehicle were also consistent with the profile taken from the defendant. Ms. Michalik again testified that "they all had a statistic of 1 in 1.13 quintillion."

      The initial indictment also included first degree robbery, second degree robbery, and aggravated arson as underlying felonies.

      Louisiana Code of Criminal Procedure Article 555 provides, in part: "A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty."

      Louisiana Code of Criminal Procedure Article 578 provides that:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution[.]


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Lemarr PIERITE v. DG LOUISIANA, LLC
    18-149
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018 Rehearing Denied December 19, 2018
    Cory P. Roy, Brandon J. Scott, Benjamin D. James, Renee Y. Roy, Roy Scott & James, 107 North Washington Street, Marksville, LA 71351, (318) 240-7800, COUNSEL FOR PLAINTIFF/APPELLEE: Lemarr Pierite
    Peter J. Wanek, Trevor C. Davies, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, 909 Poydras St., Suite 1000, New Orleans, LA 70112, (504) 831-0946, COUNSEL FOR DEFENDANT/APPELLANT: DG Louisiana, LLC
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Defendant, DG Louisiana, LLC ("Dollar General"), appeals a judgment in favor of Plaintiff, Lamarr Pierite, finding Dollar General liable for a slip-and-fall incident and awarding Mr. Pierite with $30,000.00 in general damages, in addition to special damages and costs. For the following reasons, we reverse and render judgment in favor of Defendant.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Pierite alleges that he was injured on August 27, 2015, at a Dollar General store in Marksville, Louisiana, when he slipped and fell in a liquid substance on the floor. He was twenty-three years old at the time. He alleges that as a result of the incident he sustained injuries to his back, neck, and left shoulder.

Mr. Pierite filed a petition for damages against Dollar General on August 12, 2016. A bench-trial was held August 23, 2017. Mr. Pierite's counsel elicited testimony from Mr. Pierite and from his treating physician, Dr. Dixie Clement. In addition, various evidence was accepted into the record including video surveillance showing the incident, photographs of Mr. Pierite and the scene following the incident, Mr. Pierite's medical records from Dr. Clement, and deposition testimony of Sherie Harris, who was at the Dollar General at the time of the incident in connection with her employment with a greeting card company.

After Mr. Pierite presented his case, Dollar General moved for an involuntary dismissal, arguing that Mr. Pierite had failed to prove that Dollar General had actual or constructive notice of the alleged liquid on the floor. The trial court denied the motion. Thereafter, Ms. Linda Hargrave, the store manager of Dollar General who was present at the time of the incident, was called to testify. Following the presentation of evidence, the trial court took the matter under advisement.

Ultimately, the trial court found Dollar General liable and awarded Mr. Pierite $30,000.00 in general damages, $2,670.27 in special damages, $1,500.00 for expert witness fees, $79.50 for medical record costs, legal interest, and court costs.

In its written reasons for judgment, the trial court stated:

Pierite clearly slipped and fell. Pierite's testimony was very credible that there was some type of liquid that he fell in and that this liquid was on the rear of his body on his clothes. The evidence is also undisputed that Hargrave did not look at his rear for this purpose.
....
Because the video evidence clearly shows traffic in the area where Pierite fell, which included a small child drinking a beverage prior to Pierite's fall, this Court can reasonably infer that it is likely that this was the cause of the liquid on the floor, and that the liquid remained on the floor for some time prior to Pierite's fall.
Based on the above, this Court finds that that plaintiff has proven more probable than not that there was a liquid on the floor of the Dollar General Store that caused his fall; this liquid was on the floor for a sufficient period of time wherein Dollar General had notice; the liquid caused the fall and resulting damages.

Dollar General appeals. It asserts the following as assignments of error:

1. The trial court erred in denying Dollar General's Motion for Involuntary Dismissal and finding Dollar General liable under La.R.S. 9:2800.6 despite the absence of any evidence that Dollar General had actual or constructive notice of the alleged liquid substance on the floor.
2. The trial court erred by improperly inferring that the source of the alleged liquid on the floor was a small child drinking a beverage prior to plaintiff's fall despite no positive evidence that the small child's beverage was leaking or otherwise spilled.
3. The trial court committed clear error by finding that plaintiff was very credible.
4. The trial court's award of $30,000 in general damages was excessive where there was evidence of prior injuries, subsequent injuries, a substantial gap in treatment, and plaintiff's credibility was questionable.

ANALYSIS

Motion for Involuntary Dismissal:

In connection with its first assignment of error, Dollar General suggests that the trial court's denial of its motion for involuntary dismissal was in error.

Louisiana Code of Civil Procedure Article 1672(B) states the following:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

As this court recognized in Hudson v. AIG National Insurance Company , 10-63, p. 4 (La.App. 3 Cir. 6/2/10), 40 So.3d 484, 488-89, with respect to a party seeking review of the trial court's denial of its motion for involuntary dismissal:

Our review of the explicit language of [the] applicable article is that the trial court "may decline to render any judgment until the close of all the evidence." La.Code Civ.P. art. 1672(B). Thus, there is nothing for this court to review, as the denial of a motion for involuntary dismissal is purely discretionary. See Townsend v. Delchamps, Inc., 94-1511 (La.App. 1 Cir. 10/6/95), 671 So.2d 513, writ denied, 95-2648 (La. 1/12/96), 667 So.2d 522 ; Parker v. Winn-Dixie La., Inc., 615 So.2d 378 (La.App. 5 Cir.1993) ; Riser v. Am. Med. Int'l, Inc., 620 So.2d 372 (La.App. 5 Cir.1993) ; Blount v. Peabody Shoreline Geophysical, 439 So.2d 565 (La.App. 1 Cir.1983).

Accordingly, we find no merit in Dollar General's assignment of error with respect to the denial of its motion for involuntary dismissal; however, we review the merits of the trial court's liability determination below.

Dollar General's Liability Under La.R.S. 9:2800.6 :

Dollar General's first three assignments of error address the trial court's findings pertaining to its liability under La.R.S. 9:2800.6, including the credibility of Mr. Pierite. We review the trial court's findings in accordance with the following:

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court feels that its own evaluations and inferences are as reasonable. If the trial court's findings are reasonable in light of the record read in its entirety, a court of appeal may not reverse even though it is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.
When the trial court's findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands that great deference be given to the trier of fact's findings. This is so because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said by the witnesses. Id. It is only where the documents or objective evidence so contradict a witness's story, or the story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, that the court of appeal may find manifest error or clear wrongness in a finding purportedly based on a credibility determination. Id.

Blackman v. Brookshire Grocery Co. , 07-348, p. 2 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185, 1187.

A merchant's liability for a patron's injuries resulting from a slip and is governed by La.R.S. 9:2800.6, which states:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

The failure to prove any of the requirements of La.R.S. 9:2800.6(B) is fatal to the claimant's cause of action. White v. Wal-Mart Stores, Inc. , 97-393, (La. 9/9/97), 699 So.2d 1081.

On appeal, Dollar General challenges the existence of a hazardous condition that caused Mr. Pierite to fall. It specifically takes issue with the trial court's conclusion that Mr. Pierite fell in a liquid substance on the floor, which was based on the trial court's inference from video surveillance that showed a child carrying a cup or bottle in the area forty-five minutes before Mr. Pierite fell.

"The first element [of La.R.S. 9:2800.6(B) ] contemplates whether a condition presented an unreasonable risk of harm." Bonstell v. Brookshire Grocery Co. , 09-154, p. 5 (La.App. 3 Cir. 6/3/09), 15 So.3d 1112, 1115. "In a slip and fall case, a hazard is established when the fall results from a foreign substance on a floor or an unreasonably slippery surface." Burnett v. M & E Food Mart, Inc. No. 2 , 00-350, p. 3 (La.App. 3 Cir. 11/15/00), 772 So.2d 393, 396, writ denied , 00-3425 (La. 2/16/01), 786 So.2d 101 (footnote omitted). "The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the condition prior to the fall." White, 699 So.2d at 1084 (emphasis added).

Our review of the record reveals a lack of evidence to support the existence of a condition, or hazard, imposing an unreasonable risk of harm. At trial, Mr. Pierite testified that on the day of the accident, a friend brought him to the Dollar General Store to pick up a few miscellaneous items. He indicated that it was sunny outside at the time. He testified, "I walked through the second door and got on the side of the cash register[,] and I was just walking and something was on the ground slippery and I fell .... Right on the side of the register." When asked what he slipped and fell in, Mr. Pierite stated: "I didn't see anything on the floor as I walked in. But once I got up it was a slippery substance on the floor[,] and you seen [sic] my skid marks from my slipper[,] and my shorts and my tee shirt was [sic] wet."

Video surveillance from the day of the incident, which included three separate video clips showing three different camera angles in the area near and around where Mr. Pierite fell, was submitted into evidence. The second video clip includes approximately one hour and forty minutes of coverage and shows Mr. Pierite fall at approximately forty-nine minutes and fifty-six seconds into the video. The video shows that the fall took place between the cash register/check-out area, which was on Mr. Pierite's left, and near the end of a shopping aisle, which was to his right. After the fall, Mr. Pierite can be seen lying on his left side directly in front of what the parties called the "end cap" of an aisle, which are shelves with merchandise facing towards the cash-register/check out area. The video also shows that, at the time of the fall, Ms. Hargrave was away from the cash register area and could not have seen Mr. Pierite fall. The video surveillance does not specifically show the presence of any liquid or other substance on the floor in the area where Mr. Pierite fell immediately prior to, during, or after his fall.

The video surveillance also shows that Mr. Pierite remained lying on the floor in front of the "end cap" of the aisle for about two minutes after he fell, and then he sat up unassisted. His back is facing the camera. About ten minutes after he fell, a paramedic assisted him to the standing position. About twelve minutes after the incident, the paramedic exited the store with an empty stretcher, and Mr. Pierite can be seen walking out of the store following behind the stretcher. Mr. Pierite testified that he refused treatment from the paramedics at the scene following the incident. There is no indication on the video that Mr. Pierite's white shirt or khaki pants were wet.

Within less than a minute after Mr. Pierite fell, Ms. Hargrave can be seen walking over to Mr. Pierite. She immediately took photographs of him and the area around him. The photographs were submitted into evidence. Mr. Pierite can be seen in the photographs wearing dark blue sandals, which he called "slippers," and socks. None of the photographs reflect the presence of any liquid or other substance on the white, or light-colored, tile floor. All that can be seen on the floor are several rust-colored, thin, straight lines, or markings, which Mr. Pierite identified as the "skid marks" from his fall. Ms. Hargrave also testified that, after the incident, Mr. Pierite told her those markings were left behind by his "slippers." According to Ms. Hargrave, however, the markings in the photographs were stains on the floor that were still there at the time of trial and that were there before Mr. Pierite entered into the store. Ms. Hargrave testified that there was no liquid or other substance on the floor prior to Mr. Pierite's fall.

The video surveillance also shows the time prior to and after Mr. Pierite's fall. At about two minutes and thirty-four seconds into the second video (about forty-five minutes prior to Mr. Pierite's fall), a child and an adult woman can be seen approaching the cash register/check-out line together, and they get in line behind another customer. The child can be seen walking out of line and then running toward the entrance/exit of the store, through the area where Mr. Pierite later falls, with what appears to be a cup or bottle. The cup or bottle appears to have a lid on it, and the child appears to have the lid in his mouth. The adult appearing to be with the child then gets out of line, goes and gets the child, and brings him back into the line. At approximately three minutes and fifteen seconds into the second video, the child can be seen bringing the cup or bottle to his mouth and then taking some merchandise off of the counter. The child and the adult then exit the store at about three minutes and twenty-four seconds into the video, walking through the area where Mr. Pierite later fell. After the child and adult leave the store, about forty-five minutes pass until Mr. Pierite enters the store and falls.

The video surveillance shows that the area where Mr. Pierite fell was a high-traffic area. Many customers can be seen on the video surveillance walking through the area during the forty-five minutes between the child leaving the store and Mr. Pierite's fall. None of those customers appear to have any difficulty walking in the area or otherwise move in a way to suggest that there was a liquid or other substance on the floor. About thirty seconds prior to Mr. Pierite's fall, Ms. Harris can be seen walking through the area with no difficulty or other indication that there was anything on the floor. She testified that she did not notice anything on the floor at that time.

The video surveillance also shows that after Mr. Pierite fell, neither Ms. Hargrave nor Ms. Harris, who both walked in the area following the incident on several occasions, cleaned or wiped the floor, and Ms. Hargrave did not post any wet-floor signs in the area. Again, the photographs taken by Ms. Hargrave after the incident do not show any liquid or other substance on the floor. In addition, about five minutes after Mr. Pierite fell, another customer can be seen walking through the same area with no difficulty. Further, following the incident, multiple customers walked through the area, not one indicating that there was any liquid or substance on the floor.

Based upon the evidence in the record, we conclude that the trial court's finding that a hazard (i.e. a liquid on the floor) existed prior to Mr. Pierite's fall was manifestly erroneous. The only evidence of any hazard on the floor is Mr. Pierite's testimony that his clothes were wet after he fell. However, given the objective evidence in the record that shows the events leading up to and after Mr. Pierite's fall, Mr. Pierite's unsubstantiated testimony is insufficient to establish, by a preponderance of the evidence, the existence of a hazardous condition prior to his fall.

The video surveillance, which includes over fifty minutes of coverage prior to Mr. Pierite's fall, fails to positively establish the presence or source of any liquid or slippery substance on the floor in which Mr. Pierite could have slipped. While the video does show a child carrying a cup in the area forty-five minutes before Mr. Pierite fell, there is no indication that anything spilled from the cup onto the floor or that the cup was leaking. There is further no evidence to suggest that any liquid on the floor in the high-traffic area where the child carried the cup would still be on the floor forty-five minutes later when Mr. Pierite fell. The trial court's inference that the child's cup was the source of the liquid that Mr. Pierite claims left his clothes wet after he fell is not reasonably supported by the record. Given that there is insufficient evidence of the existence of any liquid or slippery substance on the floor prior to Mr. Pierite's fall, Mr. Pierite failed to establish his burden of proving the existence of a condition that presented an unreasonable harm, as required by La.R.S. 9:2800.6(B)(1).

Similarly, Mr. Pierite failed to prove by a preponderance of the evidence that Dollar General had actual or constructive notice of any hazard on the floor, even if one were to accept Mr. Pierite's unsubstantiated testimony that his clothes were wet after he fell. There is no evidence in the record to suggest that Dollar General had actual notice of anything on the floor in the area where Mr. Pierite fell. Further, " 'Constructive notice' means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La.R.S. 9:2800.6(C)(1). To prove constructive notice, "the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." White , 699 So.2d at 1082 (emphasis added). "Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by the statute governing negligence claims against merchants." Guillaume v. Brookshire Grocery Co. , 50,745, p. 6 (La.App. 2 Cir. 6/29/16), 198 So.3d 204, 208.

The video surveillance in the instant case does not provide visual evidence of a wet or slippery substance on the floor, and it further fails to establish that someone or something created a wet or slippery substance in the area where Mr. Pierite fell. It also shows that the subject area is a high-traffic area; however, it fails to show that anyone else slipped in the area or attempted to avoid the area. In addition, the video does not provide evidence of anyone attempting to clean the area in the fifty minutes prior to, or after, Mr. Pierite's fall. This lack of positive evidence showing that a liquid or slippery substance existed on the floor prior to Mr. Pierite's fall is insufficient to establish constructive notice on the part of Dollar General. See Taylor v. Wal-Mart Stores, Inc. , 464 Fed.Appx. 337 (5th Cir. 2012), wherein the court analyzed whether video surveillance sufficiently established constructive notice under La.R.S. 9:2800.6. Therefore, we conclude that Mr. Pierite failed to establish his burden of proving constructive notice on the part of Dollar General, as required by La.R.S. 9:2800.6(B)(2).

Because the record does not reasonably support a finding of liability on the part of Dollar General under La.R.S. 9:2800.6, we reverse the trial court's judgment in favor of Mr. Pierite and further render judgment in favor of Dollar General.

DECREE

For the reasons set forth above, we reverse the judgment of the trial court, render judgment in favor of Dollar General, and dismiss Mr. Pierite's claims against it. Costs of this appeal are assessed to Appellee, Mr. Pierite.

REVERSED AND RENDERED.


author: PERRET, Judge.

text:
    Brooks TAYLOR v. DASH EQUIPMENT & SUPPLIES, INC., et al.
    18-335
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Robert M. Francez, Voorhies & Labbe, 700 St. John Street, 5th Floor, Lafayette, LA 70501, (337) 232-9700, COUNSEL FOR PLAINTIFF/APPELLANT: Brooks Taylor
    Adam G. Young, Meade Young, LLC, 556 Jefferson Street, Suite 200, Lafayette, LA 70501, (337) 534-0200, COUNSEL FOR DEFENDANT/APPELLEE: David Duplechin
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   PERRET, Judge.

This is an appeal by plaintiff, Brooks Taylor (Mr. Taylor), of an order dismissing his claims against defendant, David Duplechin (Mr. Duplechin), on grounds of abandonment. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY:

On August 9, 2006, Mr. Taylor loaned Dash Equipment & Supplies, Inc. (Dash) and Mr. Duplechin (hereinafter collectively "Defendants") $18,000.00 dollars with the promissory note providing, in relevant part:

FOR VALUE RECEIVED, the undersigned promises to pay, at the earlier of November 9, 2006 or when Ace Machine, Inc. pays for services currently being rendered by Dash ... to Brooks Taylor the sum of EIGHTEEN THOUSAND AND N0/100 ($18,000.00) DOLLARS, plus an additional sum of Nine Thousand and No/100ths ($9,000.00) as interest.
Both principal and interest shall be payable ... to Brooks Taylor ....
In case this note should be placed in the hands of attorneys-at-law for the filing of foreclosure proceedings, to protect the rights of the holder hereof or to enforce any of the agreements contained in this note or in the act of mortgage with which this note is identified, the undersigned herein and hereby agrees to pay the reasonable fees of the attorneys-at-law who may be employed for such purposes.

Following a meeting on October 10, 2006, Defendants signed a document noting that they were unable to pay the promissory note and agreed to extend the August 9, 2006 contract for thirty days. This October 10th agreement also stated that "THE CONTRACT WILL BE ACCESSED [sic] A FEE OF $100.00 PER DAY OR UNTIL PAID. SCHEDULE EXPIRATION IS NOVEMBER 9, 2006."

On January 24, 2007, Mr. Taylor filed suit against Defendants on the promissory note seeking the principal balance owed, interest, and a $100 per day fee. On February 5, 2010, Mr. Taylor filed a Motion and Order for Summary Judgment alleging that there are no genuine issues of material fact and that Defendants owe him $18,000.00 dollars, "together with interest of $9,000.00 plus legal interest from the date of the judicial demand, until paid, plus an assessment fee of $100.00 per day from October 10, 2006, until paid, for reasonable attorney's fees to be set by this court, and ... costs of these proceedings ...."

On April 11, 2013, after a hearing, the trial court granted a partial summary judgment in favor of Mr. Taylor for the principal amount of the note plus interests and all costs of the proceedings to date. The trial court denied the rest of Mr. Taylor's motion for summary judgment reserving the issues of the $100.00 assessment fee per day and attorney's fees for a trial on the merits, which was scheduled for September 4, 2013. Thereafter, the trial court granted Mr. Taylor's Unopposed Motion and Order to Continue and Reset Trial Date to December 11, 2013.

On December 2, 2013, Defendants filed a Motion for Summary Judgment alleging that no additional fees are owed under either the August 9, 2006 promissory note or the October 10, 2006 agreement extending the note. Although Mr. Taylor notes in his appellate brief that the trial court denied Defendants' Motion for Summary Judgment, the record is void of this ruling.

On December 12, 2013, the trial court granted Defendants' Amended, Unopposed Motion to Continue Trial and, per the parties' request, set a new trial date of February 20, 2014. On February 21, 2014, the trial court granted Mr. Taylor's Unopposed Motion and Order to Continue Trial and ordered that trial "be reset at a later date."

On July 15, 2016, Mr. Taylor served Interrogatories and Request for Production of Documents on each of the Defendants. Although the instructions in both sets of discovery requests properly identify the Defendants as either "Dash" or "Mr. Duplechin", the discovery requests mistakenly define "you" or "yours" as "Defendant, SEAL INVESTMENTS GROUP, LLC, or all representatives or other persons acting on his behalf or request." Nonetheless, the instructions in the requests for production of documents sought the following information from Dash and Mr. Duplechin:

REQUEST FOR PRODUCTION NO. 1:
Please produce copies of your 2006, 2007, 2008, 2009, 2010, and 2011 federal income tax returns.
REQUEST FOR PRODUCTION NO. 2:
Please produce copies of all of your 2006, 2007, 2008, 2009, 2010, and 2011 checking account statements from all banks, credit unions, and/or financial institutions.
REQUEST FOR PRODUCTION NO. 3:
Please produce copies of any and all of your financial statement for the years 2006, 2007, 2008, 2009, 2010, and 2011.
REQUEST FOR PRODUCTION NO. 4:
Please produce copies of any and all loans you obtained during the years 2006, 2007, 2008, 2009, 2010, and 2011.
REQUEST FOR PRODUCTION NO. 5:
Please produce copies of all of your 2006, 2007, 2008, 2009, 2010, and 2011 saving account statements, stock broker statements, investment statements, from all banks, brokerage houses, credit unions, investment institutions and/or financial institutions.

Mr. Taylor sought the following additional documents from only Mr. Duplechin:

REQUEST FOR PRODUCTION NO. 6:
Please produce copies of all documents evidencing your ownership interest in and to all legal entities, including but not limited to, corporations, companies, limited liability companies and partnerships that you had any ownership interest in during the years 2006, 2007, 2008, 2009, 2010, and 2011.
REQUEST FOR PRODUCTION NO. 7:
Please produce copies of all documents evidencing your ownership interest in and to any animals during the years 2006, 2007, 2008, 2009, 2010, and 2011.

On July 21, 2016, Dash and Mr. Duplechin submitted Objections to Requests for Production of Documents arguing the following:

1. Objection: the requests are not reasonably calculated to lead to the discovery of admissible evidence. The test of discoverability is whether the information sought appears reasonably calculated to lead to the discovery of evidence that is admissible. Ward v. Tenneco Oil Co. , 564 So.2d 814, 822 (La. Ct. App. 1990). Any information contained in the financial records sought to be discovered do not make any material question in this litigation more or less true or untrue. Therefore, they have no probative value. Having no probative value, they cannot be relevant to the proceeding. Therefore, the requests are not reasonably calculated to lead to the discovery of admissible evidence.
2. Objection: the requests are only served for the purpose of harassment and to needlessly increase the time and cost of litigation.
3. Objection: the requests are unreasonably burdensome in light dubious relation to any material question to this litigation.

On June 28, 2017, Mr. Taylor filed a Motion and Order to Set Trial Date, which the trial court granted and scheduled trial for August 10, 2017. Thereafter, on July 11, 2017, Mr. Duplechin filed an Ex Parte Motion to Dismiss for Abandonment, along with an affidavit signed by his attorney, Adam Young, alleging that there have been no filings or any steps in the prosecution or defense in this case from December 9, 2013 through December 10, 2016. Although Mr. Young's affidavit acknowledged that Mr. Taylor served discovery on Mr. Duplechin on July 15, 2016, he argues that the discovery sought "financial documents from Seal Investments Group, LLC, a company completely unrelated to this litigation and any of the parties herein, to which the Defendant [Mr. Duplechin] could not possibly answer, and which could not possibly result [in] the production of any documents reasonably calculated to lead to admissible evidence in this case." On July 13, 2017, a duty judge denied Mr. Duplechin's Order of Dismissal.

On July 19, 2017, Mr. Duplechin filed a Motion for New Trial, which the trial court granted on August 2, 2017. Following a hearing on Mr. Duplechin's Motion to Dismiss for Abandonment, the trial court granted the motion finding that the 2016 discovery requests served by Mr. Taylor and objected to by the Defendants "do not constitute 'discovery as authorized by this Code' under [La.Code Civ.P.] art. 561(B)." Thereafter, on September 25, 2017, the trial court signed a judgment finding the case abandoned pursuant to La.Code Civ.P. art. 561(A)(1) and dismissed it with prejudice.

Mr. Taylor now appeals this judgment alleging the following assignments of error:

1. The Trial Court erred in granting Duplechin's motion to dismiss this case as abandoned under [ La.Code Civ.P. art.] 561 based on the erroneous finding that the discovery served on Duplechin and Dash in 2016, does not constitute "discovery as authorized by this Code" under [ La.Code Civ.P. art.] 561(B).
2. The Trial Court erred in granting Duplechin's motion to dismiss this case as abandoned under [
La.Code Civ.P. art.] 561 based on the erroneous finding that Duplechin and Dash's written objection to Taylor's discovery did not constitute a step in the defense of the action under [ La.Code Civ.P. art.] 561.
3. The Trial Court erred in granting Duplechin's motion to dismiss this case as abandoned under [ La.Code Civ.P. art.] 561 when the actions of Taylor clearly demonstrated that he did not intend to abandon the lawsuit.

STANDARD OF REVIEW:

This court set forth the standard of review for abandonment issues in Margaret Fisk Munro v. British American Oil Producing Co. , 16-1057 (La.App. 3 Cir. 11/8/17), 235 So.3d 1162, 1167 (citations omitted) when it held that:

[A]n appellate court considers a trial court's findings of fact as to whether a step in the prosecution or defense of a case has been taken pursuant to the manifest error standard. However, the question of whether a particular, proven fact precludes abandonment is a question of law that is reviewed by considering whether the trial court's decision was legally correct.

DISCUSSION:

Louisiana Code of Civil Procedure Article 561 governs abandonment and provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]
....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment ....
....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The Louisiana Supreme Court addressed the rules governing abandonment in Clark v. State Farm Mutual Automobile Insurance. Co. , 00-3010, pp. 5-6 (La. 5/15/01), 785 So.2d 779, 784 (footnotes omitted), and stated as follows:

Article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some "step" towards prosecution of their lawsuit. In this context, a "step" is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party ; sufficient action by either plaintiff or defendant will be deemed a step.

The Clark court noted the following two judicially created exceptions to the abandonment rule that allow the trial court to consider evidence outside of the record in determining whether a case has been abandoned:

Those two exceptions are: (1) a plaintiff-oriented exception, based on contra non valentem , that applies when failure to prosecute is caused by circumstances beyond the plaintiff's control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.

Id. at 784-85.

Louisiana jurisprudence has held that La.Code Civ.P. " art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit" and that "abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned." Id. at 785-86. Accordingly, the general rule is that any reasonable "doubt [about abandonment] should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment." Young v. Laborde , 576 So.2d 551, 552 (La.App 4 Cir. 1991).

With these legal principles in mind, we will evaluate whether Mr. Taylor's claim is abandoned by operation of law. Mr. Taylor argues that one of the remaining issues in this case is whether the parties intended for the $100 per day fee in the October 10, 2006 loan extension to apply only to the thirty-day term or whether it applies for every day the promissory note was not paid. Mr. Taylor alleges that the 2016 discovery requests were sent out in preparation for trial and to determine Defendants' financial condition at the time of the signing of the 2006 promissory note until the approximate time that Defendants paid the judgment. Applying the three Clark requirements to the July 15, 2016 discovery requests, we will first consider whether Mr. Taylor's served Interrogatories and Requests for Production of Documents constitute a step in the prosecution of this action.

Louisiana Code of Civil Procedure Article 1474(C)(4) (emphasis added) provides that "[t]he serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings." See also Charpentier v. Goudeau , 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981 (wherein the court found pursuant to Article 1474(C)(4), the act of mailing an interrogatory was a step in prosecution of case under Article 561 ). "Interrogatories" and "requests for production" are listed in La.Code Civ.P. art. 1474(B) and, therefore, are some of the types of discovery materials referenced in Article 1474(C)(4).

In the case sub judice , it is undisputed that Mr. Taylor's requests for production of documents were signed by Mr. Taylor's counsel of record and served on both Defendants. Although Mr. Taylor mistakenly defined "you" and "your" as "Defendant, SEAL INVESTMENTS GROUP, LLC, or all representatives or other persons acting on his behalf or request[,]" in each set of discovery requests, we find that the first page of each set properly identified the Defendants as either "David Duplechin" or "Dash Equipment & Supplies, Inc." and that both sets of discovery were properly served on Defendants' counsel. Moreover, Defendants' objections to the July 2016 discovery say nothing about Mr. Taylor's mistake in defining "you" and "yours" as "Defendant, SEAL INVESTMENTS GROUP, LLC" or the fact that Seal Investments Group, LLC had nothing to do with the case. Because Article 561 is not designed to dismiss actions on mere technicalities and "the intent and substance of a party's actions matter far more than technical compliance[,]" we find the technical errors in incorrectly defining "you" and "yours" in the discovery requests were not fatal to the determination of whether the discovery served as a step in the prosecution of the case. Thibaut Oil Co., Inc. v. Holly , 06-0313, p. 5 (La.App. 1 Cir. 2/14/07), 961 So.2d 1170, 1172-73.

Moreover, we find no merit to Mr. Duplechin's argument that the discovery requests did not seek information relevant to the subject matter and thus, do not constitute discovery as "authorized" by the Code of Civil Procedure.

Louisiana Code of Evidence Article 401 defines relevant evidence as "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." Louisiana Code of Civil Procedure Article 1422 defines the scope of discovery as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The Louisiana Supreme Court noted that "the basic objectives of the Louisiana discovery process are to allow parties to obtain pertinent facts, to discover true facts and to compel their disclosure, to assist in trial preparation, to narrow and clarify the issues, and to encourage settlement or abandonment of claims lacking merit." Moak v. Illinois Cent. R.R. Co. , 93-783 (La. 1/14/94), 631 So.2d 401, 406. Thus, even information inadmissible at trial is discoverable "if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." La.Code Civ.P. art 1422. After a review of the record, we find the substance of the discovery requests was relevant to obtain information that could be used at the trial in this matter and, because the discovery was served on all parties, was a step in the prosecution of the case.

The second requirement under Clark is that the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Because Mr. Taylor's step in the prosecution of this action involved formal discovery, and because the Defendants were served and aware of the requests for documents, we find this requirement is waived.

The third requirement under Clark is the step must be taken within the legislatively prescribed time period of the last step taken by either the plaintiff or the defendant. Prior to the July 15, 2016 discovery requests, the last action in the record was the February 20, 2014 Unopposed Motion and Order to Continue Trial; however, because the motion did not request that the court set a new trial date, it is not considered a step in the prosecution of a case since an indefinite continuance is not intended to hasten the matter to judgment. See Oliver v. Oliver , 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081 (whereby this court found that an unopposed motion to continue without a trial date is not a step in the prosecution.) Thus, we find that the last step taken in the record was the December 12, 2013 Amended, Unopposed Motion to Continue Trial whereby both parties agreed to proceed with trial on February 20, 2014. Therefore, because the July 15, 2016 discovery requests were served within the three-year statutory period, we find that the trial court erred in dismissing this matter as abandoned.

For the foregoing reasons, the judgment of the trial court granting the Motion to Dismiss for Abandonment is reversed, and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Mr. Duplechin.

REVERSED AND REMANDED.

      Because Mr. Taylor filed his Opposition to Defendants' Motion for Summary Judgment within four days of the hearing, Mr. Taylor proffered his opposition and exhibits.


author: PENZATO, J.

text:
    Kim W. KUNOW v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2018 CA 0608
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 05, 2018
    Cameron M. Mary, Mandeville, Louisiana, Attorney for Plaintiff/Appellee, Kim W. Kunow
    Laura C. Hopes, Stephen A. Quidd, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   PENZATO, J.

The State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles (OMV), seeks review of a district court judgment reversing the suspension and disqualification of Kim W. Kunow's commercial driver's license. For the following reasons, we reverse the judgment of the district court and reinstate OMV's suspension and disqualification.

FACTS AND PROCEDURAL HISTORY

On April 2, 2016, Kim W. Kunow, while driving his personal vehicle, was pulled over by Deputy Thomas J. Schlesinger of the St. Tammany Parish Sheriff's Office for swerving outside the lane of travel multiple times. Kunow exhibited extreme impairment, a strong odor of alcoholic beverage, swaying, and slurred speech. Deputy Schlesinger performed several field sobriety tests, which Kunow failed. Kunow was placed under arrest for suspicion of driving while intoxicated in violation of La. R.S. 14:98. Deputy Schlesinger searched Kunow and found both Schedule II and Schedule IV controlled dangerous substances in Kunow's possession, and he was further charged with violating La. R.S. 40:967(C) and La. R.S. 40:969(C). Kunow was transported to the Sheriff's office where he submitted to a chemical breath test, which revealed that his blood alcohol concentration was 0.167 grams percent by weight (0.167 percent). At the time of the arrest, Kunow possessed a Class "A" commercial driver's license (CDL). Deputy Schlesinger seized Kunow's license and issued him a temporary permit as provided in La. R.S. 32:667(A). As a result of Kunow's blood alcohol concentration, OMV suspended his driving privileges for 90 days pursuant to La. R.S. 32:667(B)(l)(b) and disqualified his CDL for one year pursuant to La. R.S. 32:414.2(A)(4)(a)(i).

Kunow timely requested and was granted an administrative hearing to contest the suspension and disqualification of his license. On June 3, 2016, the administrative law judge (ALJ) affirmed OMV's suspension and disqualification of Kunow's driving privileges. On July 5, 2016, Kunow filed a petition in the Twenty-Second Judicial District Court for issuance of a temporary restraining order and for de novo review of the order suspending his driver's license pursuant to Louisiana's Implied Consent Law, La R.S. 32:661, et seq. Kunow claimed that OMV submitted insufficient proof at the administrative hearing. He also asserted that he was employed as a commercial truck driver and could not perform his duties without a valid driver's license. The district court issued an ex-parte temporary restraining order preventing OMV from enforcing the suspension and disqualification of Kunow's driving privileges on July 7, 2016. Following a hearing on April 27, 2017, the district court reversed the suspension and disqualification of Kunow's driving privileges as set forth in the court's written reasons. A judgment was signed in accordance therewith on January 12, 2018, reversing the suspension and disqualification of Kunow's driving privileges. It is from this judgment that OMV appeals.

LAW AND ANALYSIS

When a decision by a trial court involves a legal question, this court owes no deference to the legal conclusions of the trial court. Rather, appellate review regarding questions of law is simply review of whether the trial court was legally correct or legally incorrect. Jackson v. BASF Corp., 2004-2777 (La. App. 1 Cir. 11/4/05), 927 So.2d 412, 415, writ denied, 2005-2444 (La. 3/24/06), 925 So.2d 1231.

OMV claims that the trial court erred in agreeing with Kunow that a disqualification under La. R.S. 32:414.2(A)(4)(a)(i) requires a criminal conviction and that Kunow's request for a de novo review bars the imposition of statutory suspension and disqualification of his CDL pursuant to La. R.S. 32:667(B)(1)(b) and La. R.S. 32:414.2(A)(4)(a)(i). Kunow argues that because he testified at the trial de novo that his employer had enforced the one-year disqualification, the district court was entitled to reinstate his CDL.

The January 12, 2018 judgment on appeal incorporated the written reasons of the district court. Incorporating written reasons into a judgment does not render an otherwise complete and valid judgment invalid merely because it contains surplus language. Country Club of Louisiana Property Owners Assn., Inc. v. Dornier, 96-0898 (La. App. 1 Cir. 2/14/97), 691 So.2d 142, 149. The written reasons form no part of the judgment. Allerton v. Broussard, 2010-2071 (La. 12/10/10), 50 So.3d 145, 147. However, an appellate court can consider the reasons for judgment in determining whether the district court committed a legal error. Winfield v. Dih, 2001-1357 (La. App. 4 Cir. 4/24/02), 816 So.2d 942, 948.

In its written reasons, the district court noted that Kunow timely requested, and was granted, an administrative hearing pursuant to the Administrative Procedures Act, La. R.S. 49:950 et seq. to contest the suspension of his license for intoxication pursuant to La. R.S. 32:667, which the ALJ affirmed. The district court agreed with Kunow that La. R.S. 32:414.2(A)(4)(a)(i) provides that a disqualification shall be considered a "conviction" for purposes of compliance with federal motor carrier rules. The district court also stated that the language in La. R.S. 32:414.2(A)(4)(a)(i), which states that "a disqualification pursuant to this Item which has been affirmed after an administrative hearing shall be considered a conviction," bars the imposition of the statutory suspension by the request for de novo review.

Louisiana's Implied Consent Law, La. R.S. 32:661 et seq. , addresses the testing of persons suspected of operating motor vehicles while under the influence of alcoholic beverages or controlled dangerous substances. Louisiana Revised Statute 32:661(A)(1) provides, in pertinent part, that any person "operat[ing] a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his ... breath ... for the purpose of determining the alcoholic content of his blood" if the person is "arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages."

When a law enforcement officer places a person under arrest for violation of La. R.S. 14:98, La. R.S. 14:98.1, or any parish or municipal ordinance that prohibits operating a vehicle while intoxicated, and the person submits to an approved chemical test for intoxication, which results show a blood alcohol level of .08 percent or above by weight, the officer is required to seize the driver's license of the person under arrest and issue in its place a temporary receipt of license. La. R.S. 32:667(A)(1). Further, the OMV is required to disqualify a person from operating a commercial motor vehicle for one year, whether the person was operating a commercial or noncommercial motor vehicle at the time of the arrest. La. R.S. 414.2(A)(4)(a)(i).

The Third Circuit explained in In re Lafleur , 2012-1227 (La. App. 3 Cir. 3/6/13), 129 So.3d 540, 543 :

Louisiana has enacted two statutory schemes concerning the "suspension of driving privileges for persons who drive while intoxicated or under suspicion of doing so." Those schemes, codified at La. R.S. 32:661 -670 and at La. R.S. 32:414 -415.1, permit [OMV] to suspend the driving privileges of those persons meeting the statutory requirements contained therein. However, although both schemes contain provisions concerning suspension of driving privileges based on driving while intoxicated or the suspicion thereof, "the two schemes are parallel, they are not integrated. The two statutory schemes are separate and distinct." The procedures delineated in La. R.S. 32:667 -670 concern those who have been arrested upon suspicion of driving while intoxicated, while La. R.S. 32:414 -415.1 concerns those who have been convicted of and sentenced for, among other offenses, operating a vehicle while intoxicated. [Citations omitted; emphasis added].

A person may request an administrative hearing to contest OMV's decision in accordance with La. R.S. 32:668(A). At this hearing, OMV must prove that the officer had reasonable grounds to believe that the person had been driving under the influence of alcohol, that the person was placed under arrest and advised by the officer as provided in La. R.S. 32:661, and that the driver voluntarily submitted to an approved chemical test and the test resulted in a blood alcohol reading of .08 percent or above by weight. See La. R.S. 32:668(A) ; Flynn v. State, Dept. of Public Safety and Corrections, 608 So.2d 994, 996 (La. 1992).

After a person has exhausted his remedies with OMV, he may file a petition for judicial review in the appropriate district court. La. R.S. 32:668(C)(1). On such review, the district court is required to conduct a trial de novo. Flynn, 608 So.2d at 998-99 ; Millen v. State, Dept. of Public Safety & Correction, 2007-0845 (La. App. 1 Cir. 12/21/07), 978 So.2d 957, 961. As such, the district court is not restricted to a review of the ALJ's findings, and the district court's review can encompass the calling of witnesses, the taking of testimony, and the introduction of evidence. Millen, 978 So.2d at 961 n.4. Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Stoltz v. Dept. of Public Safety & Correction , 2013-1968 ( La. App. 1 Cir. 6/25/14), 147 So. 3d 1131, 1133.

In the present case, OMV suspended Kunow's driving privileges and disqualified him from operating a commercial motor vehicle for one year based upon his submitting to a chemical test for intoxication, which resulted in a blood alcohol reading above .08 percent. Kunow requested an administrative hearing before the ALJ, who affirmed OMV's decision. Kunow did seek further review in the district court, which issued the temporary restraining order and reversed the decision of OMV. On appeal, OMV claims that the district court erroneously interpreted La. R.S. 32:414.2(A)(4)(a)(i) and reversed the suspension and disqualification of Kunow's CDL based on his seeking de novo review of the administrative decision.

At the trial of this matter, the parties stipulated that Deputy Schlesinger did not have to testify, but stipulated that his testimony would be consistent with the arrest reports and the exhibits introduced by OMV. Those exhibits were: the certification of arrest of Kunow; the arrestee's rights form; the Intoxilyzer 5000 operational checklist; the Intoxilyzer 5000 printout showing a blood alcohol concentration of 0.167 percent and a copy of Kunow's license; a synopsis of the arrest; and the certificate and recertifications for the instrument, technician, and deputy relative to the test administered. The parties also stipulated that the district court could take judicial notice of docket numbers 577518 and 577519, criminal cases against Kunow pending in the same judicial district court in another division, indicating that Kunow had been placed in the District Attorney's diversion program and those matters had been continued without date. Kunow then testified that he was driving his own personal vehicle at the time of the arrest. The trial took place on April 27, 2017, and he testified that his employer had not allowed him to drive as a commercial driver since his DWI arrest, which had been over a year before the time of the trial.

In 1989, the legislature created a series of provisions relating to the suspension and restriction of commercial driving privileges. La. R.S. 32:414.2 -414.4. The thrust of these statutes is to provide stronger penalties for commercial drivers who commit certain enumerated offenses while operating a commercial motor vehicle. Austin v. Department of Public Safety, Office of Motor Vehicles, 46,654 (La. App. 2 Cir. 11/2/11), 77 So.3d 474, 475.

Louisiana Revised Statute 32:414.2 specifically addresses commercial motor vehicle drivers and grounds for disqualification of a CDL. Subsection (A)(4) provides:

Except as provided in Subparagraph (2)(a) of this Subsection for lifetime disqualification, and in Paragraph (3) of this Subsection for three years disqualification for offenses committed while transporting hazardous materials, any person shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for:
(a)(i) A first reported submission to a chemical test in connection with an arrest of a commercial driver's license holder, while operating a commercial motor vehicle or a noncommercial motor vehicle, of operating under the influence of alcohol, operating with an alcohol concentration of 0.08 percent or more, or operating under the influence of a controlled dangerous substance. A disqualification pursuant to this Item for which a timely administrative hearing request has not been received or a disqualification pursuant to this Item which has been affirmed after an administrative hearing shall be considered a conviction for purposes of compliance with federal motor carrier rules. [Emphasis added].

OMV contends that the statutory language in La. R.S. 32:414.2 clearly states that any person possessing a CDL faces a mandatory one-year disqualification for submitting to a chemical test resulting in a blood alcohol concentration greater than 0.08 percent while operating a motor vehicle. Prior to 2013 La. Acts, No. 386, § 1, a "conviction" was required. See Brooks v. Louisiana Dept. of Public Safety & Correction, 2011-71 (La. App. 3 Cir. 6/1/11), 66 So.3d 1236, 1239, writ denied, 2011-1977 (La. 11/14/11), 75 So.3d 948 and writ not considered , 2011-2760 (La. 12/14/11), 76 So.3d 1184. The 2013 amendment shows a clear intention on the part of the legislature that an administrative proceeding would be considered a conviction for purposes of Louisiana being in compliance with 49 C.F.R. 383.51.

Kunow argues that because he entered a diversion program, he was not convicted, and therefore, his CDL should not be disqualified. Louisiana Revised Statute 32:414.2(A)(9) states that a "conviction" includes "an unvacated adjudication of guilt or a determination in a court of original jurisdiction or by an authorized administrative tribunal that a person has violated or failed to comply with the law .... A conviction shall occur regardless of whether a person is referred to a remedial or pretrial diversion program as an alternative to the imposition of a penalty, fine, or other sanction." La. R.S. 32:414.2(A)(9)(a).

In this case, we find that the ALJ's finding that Kunow "voluntarily submitted to an approved chemical test, which showed a blood alcohol level of 0.167 percent, exceeding the legal limit" is such a "determination" by an authorized administrative tribunal and constitutes a conviction as defined by La. R.S. 32:414.2(A)(9)(a). Furthermore, the definition of "conviction" clearly states that it occurs "regardless of whether a person is referred to a remedial or pretrial diversion program." La. R.S. 32:414.2(A)(9)(a). The district court overturned the ALJ's suspension of Kunow's license, even though there was no conclusion that the OMV's evidence was inadequate. Kunow did claim in his petition that for several reasons, the evidence before the ALJ was insufficient. However, at the trial of this matter, Kunow did not dispute the adequacy of the evidence and stipulated as to the evidence put forth by OMV. Therefore, for purposes of La. R.S. 32:414.2, Kunow was "convicted" of DWI.

Furthermore, we find nothing in the statute to support holding that the mere fact of filing for judicial review bars the suspension or disqualification of a CDL. A similar argument was made in Hymel v. Dep't of Pub. Safety , 2002-0734 (La. App. 1 Cir. 4/2/03), 843 So.2d 1172, 1173, where Hymel argued that La. R.S. 32:667 provided no authority for the suspension of his driver's license following an administrative hearing request. The court held that La. R.S. 32:668(C) provided for remedies after exhausting the administrative review process, including petitioning the district court for de novo judicial review. The court stated, "the mere request for a hearing does not act as a bar or erasure of a proper suspension. If the request alone acted as an automatic prohibition of suspension, the subsequent hearing and judicial review afforded the arrestee would serve no purpose." Hymel, 843 So.2d at 1174, citing Meilleur v. Louisiana Department of Public Safety , 613 So.2d 281, 283 (La. App. 3d Cir.), writ denied, 614 So.2d 1261 (La. 1993) (finding it would be an absurdity to agree with plaintiff that any arrestee who timely requests an administrative hearing would avoid suspension).

While the facts of Hymel and Meilleur involved the request for an administrative hearing, the rationale is applicable to the facts of this case. Kunow's filing for de novo review does not bar the suspension and disqualification of his license. The purpose of the de novo review is to review the "final order of suspension or denial by [OMV] in the same manner and under the same conditions as provided in [La.] R.S. 32:414." La, R.S. 32:668(C)(1). Therefore, the district court was required to determine if the suspension and disqualification was proper. The parties in the present case stipulated to the facts of Kunow's arrest and his submission to a chemical test, which revealed a blood alcohol concentration of 0.167 percent. The stipulation established that the burden of proof was met. It is well settled that a stipulation amounts to full proof against those who made it. It has the effect of withdrawing a fact from issue and disposing wholly with the need for proof of that fact. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. A court of appeal reviewing a decision based on stipulated facts is bound by the four corners of the stipulation. Terral v. Waffle House, Inc., 96-0589 (La. App. 1 Cir. 12/20/96), 684 So.2d 1165, 1167-68. Kunow did not dispute that there was inadequate evidence to support the ALJ's ruling.

Kunow argues on appeal that the district court found that OMV's suspension and disqualification was improper because he had already faced a disqualification of his driving privileges for over a year by his employer, who he alleges ultimately imposed the disqualification. Although the district court did state orally at the trial that Kunow had "paid the price" because he had not been operating a commercial motor vehicle for over a year at the time of trial, nowhere in the district court's written reasons or judgment is there any indication that the district court's judgment was based on Kunow's employer refusing to permit him to drive a commercial motor vehicle for over a year. Even if the judgment had been based on the actions of the employer of Kunow, this would not satisfy the disqualification mandated by La. R.S. 32:414.2(A)(4)(a)(i). The statute does not contain such an exception.

The district court based its judgment on Kunow's filing of a request for de novo review of the ALJ ruling. We cannot agree that the filing alone bars the imposition of the 90 day statutory suspension pursuant to La. R.S. 32:667(B)(1)(b) and a one-year disqualification pursuant to La. R.S. 32:414.2(A)(4)(a)(i). The filing for de novo review with the district court permitted Kunow the opportunity to establish that the ALJ's finding was not based on adequate evidence or that OMV failed to carry its burden of proof. However, Kunow stipulated to the facts, and we find that those facts supported the suspension and disqualification of his license.

CONCLUSION

For the above and foregoing reasons, the January 12, 2018 judgment of the district court, which reversed the final administrative decision of the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles, is hereby reversed. The suspension and disqualification of the license of Kim W. Kunow is reinstated. All costs of this appeal are assessed against plaintiff, Kim W. Kunow.

REVERSED AND RENDERED.

      This statute adopts the requirements of the Federal Motor Carrier Safety Administration rules so that Louisiana is in compliance with 49 C.F.R. § 383.51.

      It has been held that the Administrative Procedures Act is inapplicable to proceedings brought pursuant to sections 414 and 668 of title 32 of the Louisiana Revised statutes. See Flynn v. State, Dep't of Public Safety & Correction, 608 So.2d 994, 996 n.4 (La. 1992).

      This statute refers to no particular type of license and therefore applies to all, including a CDL. See Moore v. State, Dept. of Public Safety, License Control & Driver Imp. Div. , 26,949 (La. App. 2 Cir. 5/10/95), 655 So.2d 644, 645. See also, La. R.S. 32:414.2(C)(2) which states, in pertinent part: "[t]he procedures for testing commercial motor vehicle operators for alcohol or controlled substances, and for reporting the results shall, with any appropriate modifications, be the same as for other drivers."

      We note that the parties stipulated that Kunow had been placed in a diversion program. Presumably, the diversion program arose from the April 2, 2016 arrest, but it is unclear from the record why there were two pending criminal matters.

      49 C.F.R. § 383.51 provides in pertinent part:
      (a) General.
      (1) A person required to have a CLP [commercial learner's permit] or CDL who is disqualified must not drive a CMV [commercial motor vehicle].
      (2) An employer must not knowingly allow, require, permit, or authorize a driver who is disqualified to drive a CMV.
      (3) A holder of a CLP or CDL is subject to disqualification sanctions designated in paragraphs (b) and (c) of this section, if the holder drives a CMV or non-CMV and is convicted of the violations listed in those paragraphs.
      (4) Determining first and subsequent violations. For purposes of determining first and subsequent violations of the offenses specified in this subpart, each conviction for any offense listed in Tables 1 through 4 to this section resulting from a separate incident, whether committed in a CMV or non-CMV, must be counted.
      * * *
      (b) Disqualification for major offenses. Table 1 to § 383.51 contains a list of the offenses and periods for which a person who is required to have a CLP or CDL is disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:
      Table 1 to § 383.51
      * * *
      For a first conviction or refusal to be tested while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV for ... [b]eing under the influence of alcohol as prescribed by State law [for] 1 year[.]

      The State of Louisiana, Department of Civil Service, Division of Administrative Law is authorized by La. R.S. 32:667(D)(1) to hold a hearing upon a person's license being suspended.