author: GUIDRY, J.

text:
    CROSS GATES, INC. v. ROUSES ENTERPRISES, L.L.C.
    NUMBER 2018 CA 0465
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 12, 2018
    Ross F. Lagarde, Slidell, LA, Counsel for Plaintiff/Appellant Cross Gates, Inc.
    Loretta G. Mince, Jeanette A. Donnelly, New Orleans, LA, Counsel for Defendant/Appellee Rouses Enterprises, LLC
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

In this appeal, a lessor contests the trial court's failure to hold the lessee liable for all the damages claimed by the lessor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cross Gates, Inc. is a Louisiana corporation that developed several properties in and around the city of Slidell, including a shopping center at the intersection of Gause Boulevard and Military Road. The first building in the shopping center was designed by and constructed for The Great Atlantic & Pacific Tea Company, Inc. (commonly referred to as simply "A & P"), which leased the building to be constructed for the operation of a supermarket. Although the lease was executed in 1984, the initial twenty-year term of the lease would not commence until the earlier of the date on which A & P opened the store for business or sixty days after possession of the premises was delivered to A & P. According to a "Confirmation of Lease Term Agreement," executed by Cross Gates and A & P on June 20, 1986, the initial term of the lease commenced on May 8, 1986, and ended on May 31, 2006. The lease also provided for up to four renewal periods of five years each, with the first renewal period commencing on June 1, 2006, and ending on May 31, 2011.

During the initial term of the lease, Superfresh/Sav-A-Center, Inc., a subsidiary of A & P (collectively "A & P/Sav-A-Center"), took over the lease in the 1990s and renovated/rebranded the grocery store by changing the flooring and layout and added a kitchen and bakery. The lease was subsequently renewed for the first of the four renewal periods provided for in the lease. More than a year after renewing the lease, A & P/Sav-A-Center notified Cross Gates that it had assigned its interest in the renewed lease to Rouse's Enterprises, L.L.C., effective November 1, 2007. In addition to acquiring A & P/Sav-A-Center's interest in the Cross Gates lease, Rouse's also purchased all of the assets of the grocery store, excluding inventory. Shortly after acquiring the lease, Rouse's closed the grocery store and removed fixtures and equipment from the store, which it either sold or incorporated into other stores.

By a letter dated October 25, 2010, Rouse's notified Cross Gates that it did not intend to renew the assigned lease, which was due to expire on May 31, 2011. After the expiration of the lease, Cross Gates sued Rouse's, claiming that Rouse's had caused extensive damage to the leased premises after taking over the lease and alleging that Rouse's action were in breach of the lease and its obligations as a lessee. The matter eventually proceeded to a trial on the merits, at which Cross Gates sought to recover the following expenses that it had incurred in renovating and repairing the grocery store formerly leased to Rouse's:

Sheetrock and paint = $ 15,500.00 Replacement of ceiling tiles = $ 22,000.00 Replacement of flooring = $ 65,100.00 Replacement of HVAC system = $258,000.00 Replacement of light fixtures = $ 38,983.504 ___________ Total costs = $399,583.50

[Editor's Note: The preceding image contains the reference for footnote ]

Following the trial and after considering post-trial briefing by the parties, the trial court rendered judgment rejecting Cross Gates' claims related to the HVAC system, the ceiling tiles, and replacement flooring, but awarded Cross Gates partial compensation related to the light fixtures, sheetrock, rusted metal studs, and for repairing the concrete subfloor of the building. Accordingly, the trial court signed a judgment on November 20, 2017, in favor of Cross Gates and against Rouse's, in the amount of $14,040.00, plus legal interest. Cross Gates devolutively appeals that judgment.

ASSIGNMENTS OF ERROR

1. The trial court erred as a matter of law when it misinterpreted the lease agreement and failed to award any damages to Cross Gates for replacement of the HVAC system, where paragraph 12A of the lease specifies that Tenant [Rouses] is responsible for "repairs and replacements to the heating, ventilating and air conditioning [HVAC] systems located therein," and paragraph 12B, which addresses the Landlord's responsibility, excludes any mention of the HVAC system.
2. The trial court erred in failing to award replacement-cost damages for the light fixtures, ceiling tiles, and VCT flooring, instead awarding damages based on the actual current value of the light fixtures that had been removed, and awarding no damages for the ceiling tiles, which cost $22,000 to replace, and no damages for the replacement of the VCT flooring, other than $3,000 for repair to the gouges in the subfloor.
3. The trial court abused its discretion in awarding only $7,500 for the repair of molded sheetrock and the removal and replacement of rusted metal studs, and in refusing to award any damages for the interior painting that was required; the sheetrock, rusted metal studs, and paint cost Cross Gates $15,500.

DISCUSSION

HVAC System

In its first assignment of error, Cross Gates challenges the trial court's failure to award any compensation for the cost it incurred in replacing the HVAC system. The record reveals that shortly after acquiring the lease to the store, Rouse's discontinued the grocery store being operated on the premises and closed up the building. Upon closing the store, Rouse's stopped running the HVAC system in the building for the remainder of the term of the lease. Cross Gates claims that the HVAC system was rendered inoperable due to Rouse's failure to run the system for over three years.

According to La. C.C. art. 2683, among the principal obligations of the lessee is that the lessee use the thing leased as a prudent administrator and in accordance with the purpose for which it was leased and to return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered, except for normal wear and tear. If a lessee uses the thing in a manner that may cause damage to the thing, the lessor may obtain compensation for any damages he may have sustained. La. C.C. art. 2686. Moreover, the lessee is obligated to repair damage to the thing caused by his fault and to repair any deterioration resulting from his use to the extent it exceeds the normal or agreed use of the thing. La. C.C. arts. 2687 and 2692.

Section 12 of the parties' lease, titled "Repairs," states that the tenant (in this case, Rouse's) is responsible for all necessary interior structural and non-structural repairs, including "to the heating, ventilating and air conditioning system located therein" as well as for repairs "required as a result of Tenant's negligence." Section 24 of the lease, titled "End of Term," states that upon the expiration of the lease, the tenant must surrender the premises "in good order and condition, reasonable wear and tear ... excepted."

In an action to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Blake v. City of Port Allen, 14-0528, p. 9 (La. App. 1st Cir. 11/20/14), 167 So.3d 781, 788. A trial court's determination of whether a repair is due to abuse of the property by the tenant or due to normal wear and tear is a factual finding subject to review on appeal under the manifest error standard. See Kushi Healthcare, L.L.C. v. St. James Behavioral Health Hospital Inc., 15-0007, pp. 6-7 (La. App. 1st Cir. 6/5/15), 174 So.3d 1192, 1197 ; Cohn Realty Co., Inc. v. Well, 356 So.2d 514, 516 (La. App. 1st Cir. 1977). The determination to be made is whether the harm would have occurred but for the defendant's alleged substandard conduct, or, when concurrent causes are involved, whether the defendant's conduct was a substantial factor in bringing about the harm. Blake, 14-0528 at p. 10, 167 So.3d at 789.

Louis "Pat" Giles Miramon, Jr. was the former president of Cross Gates, and he exercised management authority during the existence of the lease with A & P/Sav-A-Center and Rouse's. Mr. Miramon testified that the original HVAC system was installed in the store in 1984. He stated that when he installed the HVAC system, he expected the HVAC system to last ten or twenty years.

Richard Mark Nunnelly testified as an expert witness in the field of HVAC systems. When asked what would happen when an HVAC system is not run for three years, Mr. Nunnelly testified regarding a number of things that could possibly happen, such as rust and corrosion of parts due to oil not being circulated through the system, causing the system to "seize up and be stuck." In such cases, Mr. Nunnelly testified that parts could be replaced so that the system would work, but to do so would require "a pretty thorough evaluation of the equipment to see what is working and what is not working." He said the cost to have a contractor go through the entire piece of equipment looking at every detail and every valve would probably take a couple of days and cost a few thousand dollars.

Mr. Nunnelly testified that in his experience, he had evaluated "a half a dozen or so" HVAC systems that had not been run for two or three years. In all of those cases, he said the recommendation was made to replace rather than repair the HVAC systems because:

[A]fter looking at the equipment ... oftentimes there are other things besides just the fact that it's not run for three years, if it is aged equipment, ... more than 15, 18 years, something like that, we are looking at the cost of that type of refrigerant, just looking at the cost of the equipment and replacements, usually it is best just to go ahead and replace the equipment.

He also explained that he recommended replacement for the six HVAC systems on which he consulted primarily because the units were "[t]oward the end of the life expectancy." He opined that "it just doesn't make sense to try to add the refrigerant into a system that is almost 20 years old." Mr. Nunnelly stated that he did not know whether the inoperable HVAC system did not work because it had been turned off or because it was seized up. He further admitted that he never inspected the inoperable HVAC system nor did he review the repair/maintenance history for the system.

Dolly Miramon, Mr. Miramon's daughter, was the assistant manager of Cross Gates and performed day-to-day management duties for Cross Gates beginning in 1993. When asked if she had any knowledge of whether the HVAC system could have been repaired, Ms. Miramon stated that the owner of Slidell Refrigeration told her it would be more costly to repair the system and advised her to replace the system. She admitted that she could not say whether any attempt had been made to evaluate what it would require to repair the system.

In Urban Management Corporation v. Ford Motor Credit Company, 263 So.2d 404, 409-10 (La. App. 2d Cir. 1972), the lessor claimed that the lessee's action of setting the thermostat too low caused damage to the air conditioning system for which the lessor sought to recover. The court rejected the lessor's claim, finding there was insufficient evidence of a causal relationship between the thermostat setting and the replacement of the compressor in the air conditioning system.

In the present case, the trial court found the 26-year-old HVAC system was well past its expected useful life and therefore Cross Gates was not entitled to recover the expense for replacing the HVAC system. While it is undisputed that Rouse's did not run the HVAC system for at least three years, the evidence presented at trial was inconclusive as to whether the HVAC system was inoperable due wholly or partly to the failure to operate the system or due merely to the age of the system. Based on the evidence before us, we cannot say that the trial court manifestly erred in finding that the HVAC system had to be replaced due to the age of the system rather than any negligence of Rouse's. Accordingly, we reject Cross Gates' first assignment of error.

In Cross Gates' second assignment of error, it challenges the trial court's award of only a portion of the damages claimed for light fixtures that were removed from the store and its failure to award any amount for the damage Rouse's caused to the ceiling tiles and to the VCT flooring in the store.

Light Fixtures

It is undisputed and the record clearly establishes that Rouse's removed 248 light fixtures from the grocery store. Robert Michael Bixenman, the maintenance and construction director for Rouse's until his retirement in March 2017, testified that the lights were removed in 2009, and used in one of the other Sav-A-Center stores acquired by Rouse's. At trial, two invoices from the lighting company Cross Gates hired to replace the light fixtures in the store were introduced. The first invoice was a cost quote for the installation of 250 8-foot light fixtures to replace the 248 light fixtures that were removed. The second invoice was a cost quote for the installation of 367 8-foot light fixtures, plus the cost of removing the remaining original light fixtures from the store. The original light fixtures in the store were 4-foot fixtures.

The proper goal of a damage award is to restore the plaintiff, as closely as possible, to the position that he would have occupied had the accident never occurred. Carter v. Gulf States Utilities Company, 454 So.2d 817, 820 (La. App. 1st Cir. 1984). There is no formula that can be applied with exactitude in the assessment of property damages. Each case must rest on its own facts and circumstances as supported by proof in the record. Where there is a legal right to recovery of damages, but the amount cannot be exactly determined, the courts have reasonable discretion to assess them based upon all the facts and circumstances of the particular case. Fortson v. Louisiana Power & Light Company, 509 So.2d 743, 745 (La. App. 3d Cir. 1987)

Generally, three approaches have been followed by Louisiana courts in arriving at the amount to award for damages to property: (1) the cost of restoration if the thing damaged can be adequately repaired; (2) the difference in value prior to and following the damage; or (3) the cost of replacement new, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of the repairs exceeds the value of the thing damaged. Carter, 454 So.2d at 820. On appellate review, damage awards will be disturbed only when there has been a clear abuse of the trier of fact's discretion. Blake, 14-0528 at p. 13, 167 So.3d at 791.

Ms. Miramon testified that Cross Gates was only seeking one-half of the $77,967.96 quoted in the second invoice because only half of the original lights were removed by Rouse's. When Ms. Miramon was asked why the decision was made to remove the remaining original light fixtures, she stated that the light fixtures were "a little bit outdated" from what she understood. She further indicated that the new lessee for the store had requested that 8-foot light fixtures be installed in the store instead of 4-foot fixtures. The lease with the new lessee contains a provision requiring Cross Gates to "replace lighting with new [8-foot] lighting throughout the sales floor."

Ms. Miramon admitted that she did not know how much it would cost to simply replace the 248 4-foot light fixtures that were removed by Rouse's. Mr. Bixenman, however, testified that the value of a light fixture that was 15 to 20 years old was anywhere from "nothing to $5.00." The trial court evidently used this amount for calculating its award of $1,240.00 for the light fixtures that were removed. The trial court also awarded Cross Gates an additional $2,300.00 as "the amount necessary to repair the wiring damaged by the removal of the fixtures." Considering the foregoing testimony and evidence presented at trial regarding the light fixtures, we cannot say that the amount awarded was an abuse of the trial court's discretion.

Ceiling Tiles

At trial, Ms. Miramon testified that because Rouse's never ran the air conditioning in the store during its tenure as lessee, "there was so much moisture in the store [that] it made all of the ceiling tiles cup all four sides." As she explained, due to the described warping of the ceiling tiles, the tiles would not sit in the metal frames and some of the tiles had even fallen from the ceiling. Mr. Miramon likewise testified that the failure to run the air conditioning in the store affected the ceiling tiles, causing them to become damp, mildew, and warp. As a result, he testified that the entire ceiling had to be replaced. Ms. Miramon identified an invoice from Brockhaus & Co., Inc., which charged $22,000.00 for labor and materials to replace the ceiling tiles and to patch the ceiling grid where needed. Mr. Bixenman, who opined that the useful life of a ceiling tile is about 20 years, acknowledged that there would be no need to replace ceiling tiles unless they are broken. He further acknowledged that while the ceiling tiles may be worth nothing if a person would try to resell them, they were worth something sitting in the store.

The trial court found that Rouse's failure to operate the HVAC system caused the ceiling tiles to warp, but because the ceiling tiles were "past their expected useful life," the trial court did not award Cross Gates any compensation for the ceiling tiles that it found that Rouse's had damaged. We find the trial court did not abuse its discretion in not compensating Cross Gates for the damaged ceiling tiles, as the evidence establishes that Cross Gates had no legal right to the recovery of damages for this claim. See Fortson, 509 So.2d at 745.

As held by this court in in Cenac v. Duplantis Moving & Storage Company, Inc., 407 So.2d 424, 426 (La. App. 1st Cir. 1981), where property is destroyed beyond repair and the market value is not ascertainable, the proper measure of damages is replacement cost less depreciation. The trial court accepted Mr. Bixenman's testimony that the useful life of the ceiling tiles was 20 years. Thus, applying the replacement cost less depreciation test, and considering the age of the ceiling tiles as being past their useful life, the replacement costs incurred by Cross Gates would be reduced by a 100 percent depreciation factor, resulting in a recovery amount of zero dollars. Hence, under the applicable test for measuring this claim for damages, Cross Gates has no legal right of recovery.

VCT Flooring

When the store at issue was originally constructed, vinyl composite tile (VCT) flooring was placed throughout the store. Then, in the 1990s, when the store was renovated and rebranded as a Sav-A-Center, another layer of VCT flooring was placed on top of the original layer. In the course of removing fixtures and equipment after acquiring the lease to the store, Rouse's pulled up portions and gouged pieces out of the existing two layers of floor. As a result of this damage to the flooring, Cross Gates claims that it not only had to replace the flooring in the store, but it also had to remove the prior two layers of flooring and repair the concrete subfloor before installing the new flooring. Evidence of other defects in the existing flooring, not attributable to Rouse's, was also presented at trial, such as discoloration due to staining where cleaning products seeped under and built up under shelving in the store.

Despite acknowledging that the new lessee for the store required that the existing flooring be replaced with new VCT flooring in a color and pattern selected by the new lessee, Ms. Miramon nonetheless testified that: (1) the new flooring could have been installed over the existing flooring but for the damage caused by Rouse's; and (2) if the new lessee had so elected, which it did not, portions of the existing flooring could have remained in place with new, decorative tiles being added in certain locations throughout the store as needed or to fulfill the new lessee's color scheme and pattern.

Mr. Bixenman agreed that a third layer of VCT tile could possibly be added on top of two prior layers, if the first two layers are stable and well maintained. However, he also testified that normally two layers are the limit of VCT flooring that can be stacked on top of each other and that adding a third layer is not recommended and would not be warranted by most manufacturers. He also opined that properly maintained VCT flooring typically lasts at least 20 years.

Observing that section 12B of the lease obligated Cross Gates to repair and replace the flooring in the store and that the existing VCT flooring was faded in exposed areas, the trial court concluded that the existing flooring would have had to be removed in any event because of normal wear and tear. Although the record shows and the trial court found that Rouse's had damaged portions of the existing flooring, we nevertheless find that the trial court did not abuse its discretion in not awarding Cross Gates the costs associated with removing the existing flooring and replacing it with new VCT flooring.

First, we observe that even if the existing flooring had not been damaged by Rouse's, allowing Cross Gates to install a third layer of flooring on top of the existing two layers of flooring, Cross Gates would have still had to incur the expense of the new flooring. The lease with the new lessee required the installation of new VCT flooring in a color and pattern selected by the new lessee. Additionally, while Ms. Miramon speculated that instead of having to buy all new flooring, decorative tiles could have been added throughout the store to suit the new lessee, Cross Gates presented no evidence to suggest that such an option was considered by or would be acceptable to the new lessee. Hence, Cross Gates' claim for the cost of the new flooring was properly rejected by the trial court.

Further, while it is undisputed that the damage to the existing flooring caused by Rouse's precluded Cross Gates from simply adding a third layer of flooring on top of the existing flooring, we can find no basis for discrediting Mr. Bixenman's testimony advising against the utility of such action. Hence, the evidence that it would not be prudent to add a third layer of VCT flooring on top of the two existing layers, combined with the fact that Cross Gates was obligated to install new VCT flooring for the new lessee, supports the trial court's rejection of Cross Gates' claim for the costs of removing the existing flooring.

Painting

In its final assignment of error, Cross Gates contests the trial court's failure to award any costs for painting; however, based on the evidence in the record before us, we cannot say that the trial court abused its discretion in not awarding Cross Gates any damages for painting.

Special damages are those that have a "ready market value," such that the amount of damages theoretically may be determined with relative certainty. Guillory v. Lee, 09-0075, p. 16 (La. 6/26/09), 16 So.3d 1104, 1117. A trial court is given great discretion in its assessment of quantum for special damages. Tate v. Kenny, 14-0265, p. 8 (La. App. 1st Cir. 12/23/15), 186 So.3d 119, 127. A reviewing court should not set aside an award of special damages unless an analysis of the facts and circumstances reveals an abuse of discretion in setting the award. Banks v. First Guaranty Bank of Hammond, 13-0607, p. 21 (La. App. 1st Cir. 2/25/14), 2014 WL 766846, at *11. The plaintiff bears the burden of proving with legal certainty every item of damages, but a plaintiff's own uncorroborated "personal estimate" of loss is insufficient to satisfy that burden. Blake, 14-0528 at p. 15, 167 So.3d at 792.

Ms. Miramon testified that D Management, a company she owns, performed the repairs to the sheetrock and metal studs and did the painting work for which Cross Gates was seeking $15,500.00 in compensation. She stated that $7,500.00 of that amount was for the sheetrock and metal studs, and $8,000.00 was for painting. The trial court only awarded Cross Gates the $7,500.00 for the sheetrock and metal studs.

The invoice submitted in support of the painting expense shows that the amount charged was for painting inside and outside of the building; however, Ms. Miramon could not say how much of the $8,000.00 charged was for "outside painting."

When questioned about whether Rouse's was responsible for outside painting, Ms. Miramon responded that it was assumed that Rouse's would accept responsibility, although the assumption was never communicated to Rouse's. She also admitted that the paint color used was picked by the new lessee of the building. With regard to the need for painting, Mr. Bixenman testified that "[s]tores are never painted unless we are going through a remodel[,]" because, as he explained, a remodel encompasses a whole new scheme or décor package, and everything has to match.

Ms. Miramon testified that although she had evidence of the separate material and labor costs that supported the $15,500.00 invoiced amount, she said it was her "error" in not providing that evidence. She admitted that she did not prepare the $15,500.00 invoice contemporaneously with the work that was performed. As she explained, the invoice was put "together when we put the lawsuit together to say we should get our damages back."

In general, under the lease, Cross Gates bore responsibility for making all repairs and replacements to the exterior of the leased premises that were not required to be made by Rouse's. Section 12E of the lease states that Cross Gates "shall maintain the exterior of all buildings and other structures in the Shopping Center in good order and condition, which shall include repainting when necessary." Hence, the record establishes no grounds for holding Rouse's liable for the expense of painting the exterior of the leased premises.

Moreover, while Ms. Miramon did submit an invoice from D Management for the painting work performed, she admitted that she prepared the invoice for the purposes of the lawsuit. Additionally, the evidence presented at trial cast doubt on whether the painting was done as a consequence of any damage caused by Rouse's or whether it was done to suit the design scheme of the new lessee. Cf. Tudor Chateau Creole Apartments Partnership v. D.A. Exterminating Co., Inc., 96-0951, pp. 7-8 (La. App. 1st Cir. 2/14/97), 691 So.2d 1259, 1264 (where the court rejected expenses claimed by the plaintiff that had no supporting evidence, but accepted the expenses for which there were supporting invoices in light of the fact that the defendants presented no evidence that the repairs were not done for the purpose of repairing the damage caused by the defendants or that the repairs were not billed as represented in the invoices). Thus, considering the evidence presented, we cannot say that the failure to award Cross Gates damages for painting was an abuse of the trial court's discretion.

CONCLUSION

Based on the foregoing review of the record and consideration of the issues presented, with appropriate deference being accorded to the trial court, we affirm. All costs of this appeal are cast to the appellant, Cross Gates, Inc.

AFFIRMED.

      While A & P operated a grocery store out of the leased premises, the lease also allowed for the premises to be used and occupied for "any other lawful retail purpose or purposes except for the sale of prescription drugs."

      The September 14, 2007 Asset Purchase Agreement executed by A & P/Sav-A-Center and Rouse's identifies "inventory" as "foods, beverages and other products sold in such Premises [being "the physical space leased by" A & P/Sav-A-Center] that are saleable to retail customers in the Ordinary Course of Business located in such Premises, and all goods, wares, merchandise, packaging materials, paper bags and polyfilm ... located in such Premises."

      When Rouse's obtained the lease on the subject store, it also acquired the leases for several other A & P/Sav-A-Center stores in the New Orleans market. Of the leases acquired, there were two stores that Rouse's planned not to operate because it believed the stores would not be profitable in the market where they were located. Consequently, for those two stores, Rouse's arranged to have A & P/Sav-A-Center close the store beforehand by selling down the inventory and discontinuing to make future purchases. The store leased by Cross Gates was one of the two stores that Rouse's decided not to continue to operate.

      While Cross Gates initially demanded $77,967.00 as the cost for replacing the light fixtures in the leased premises, at trial, it reduced the demand to half of that cost.

      Based on pictures introduced at trial, the "metal studs" appear to be portions of the metal framing used to construct the building.

      See also comment (c) to Article 2692.

      It was established at trial that the units of the HVAC system that were replaced were actually located on the roof of the building. Section 12B of the lease states that the lessor is responsible for all repairs and replacements to the exterior, floor and roof of the building.

      A fact established by direct evidence is one that has been testified to by witnesses as having come under the cognizance of their senses. Circumstantial evidence, on the other hand, is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. Blake v. City of Port Allen, 14-0528, p. 9 (La. App. 1st Cir. 11/20/14), 167 So.3d 781, 788.

      A certified copy of the deposition of Mr. Miramon was introduced into evidence at the trial due to the death of Mr. Miramon prior to trial. Mr. Miramon was deposed as the corporate representative of Cross Gates.

      In addition to being president of Cross Gates, Mr. Miramon also owned Miramon Construction, which built the store as well as other buildings in the shopping center.

      $5.00 x 248 = $1,240.00

      Mr. Miramon, however, was of the opinion that a "ceiling normally lasts forever."

      Notably, the removal of the existing 4-foot light fixtures remaining in the store to replace them with 8-foot light fixtures was made at the insistence of the new lessee. Thus, the expense for the removal and replacement of the remaining 4-foot fixtures was incurred because of the new lessee.

      In addition to the $15,500.00 invoice from D Management, copies of several checks from Cross Gates that were written to D Management for varying amounts were introduced. The sum of the checks did not match up with the $15,500.00 amount shown on the invoice from D Management. Ms. Miramon explained that the checks "were just draws" and that they covered other repair work performed by D Management on the building for which Rouse's was not charged.


source: Caselaw Access Project

license: Public Domain

text:
    Demond F. COOK v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Sgt. Wade Lamotte, Lt. Leonard Harris, Deputy Johnathan Malveaux, Deputy Alfred Glasper, and Warden Dennis Grimes
    NUMBER 2018 CA 1143
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 18, 2018
    Demond F. Cook Angola, LA Plaintiff/Appellant In Proper Person
    Mary G. ErlingsonTara L. Johnston Baton Rouge, LA Counsel for Defendants/Appellees Sgt. Wade Lamotte, Lt. Leonard Harris, Deputy Johnathan Malveaux, Deputy Alfred Glasper, and Warden Dennis Grimes
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Plaintiff, Demond F. Cook, appeals from a trial court judgment dismissing his petition for tort action against defendants, Sargent Wade Lamotte, Lieutenant Leonard Harris, Deputy Johnathan Malveaux, Deputy Alfred Glasper and Warden Dennis Grimes, with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 2009, Cook, while an inmate in East Baton Rouge Parish Prison, filed a grievance asserting that on November 28, 2009, Sgt. Lamotte tased him with a taser gun. In a January 3, 2010 response to Cook's grievance, the prison determined that the grievance was unfounded. Cook subsequently filed a petition for judicial review of the prison's response in the Nineteenth Judicial District Court (19th JDC) on April 10, 2010. However, in addition to seeking review of the prison's response to his grievance, he also sought relief in the amount of $250,000 for the injury, $100,000 for mental anguish, and requested that Sgt. Lamotte be charged with attempted murder for attempting to end his life.)

Thereafter, on May 31, 2011, Cook filed a federal civil rights complaint in the U.S. District Court, Middle District of Louisiana, against the same parties asserting that his state court action was dismissed without prejudice on April 13, 2011, allowing him to file his suit "in the proper format and desired court." Cook sought monetary damages and requested criminal charges against Sgt. Lamotte for second degree attempted murder and/or termination from his job. Following a hearing on cross motions for summary judgment, the federal district court granted the defendants' motion for summary judgment, finding that Cook's federal claims were time barred by the applicable statute of limitations. The federal district court further declined to exercise supplemental jurisdiction over Cook's state law claims. See Cook v. Lamont, No. 11-00358, 2013 WL 325557 (M.D. La. Jan. 28, 2013).

On September 5, 2013, Cook filed a petition for tort action, alleging that on November 28, 2009, Sgt. Lamotte maliciously tased him without provocation while Lt. Harris, Deputy Malveaux, Deputy Glasper, and Deputy Don Williams stood and watched the assault and failed to intervene or restrain a non-violent inmate. Cook sought punitive damages for the defendants' criminal conduct as well as damages for deliberate indifference and mental anguish. Cook subsequently requested service on the defendants on September 6, 2016.

The defendants responded by filing an exception raising the objection of prescription on February 8, 2017, asserting that Cook's delictual action is subject to a one-year prescriptive period, and the action, filed over three years following the alleged date of injury, is prescribed. Defendants further asserted that Cook is unable to establish that the prescriptive period was interrupted by his filing of a 2010 petition for judicial review in the 19th JDC.

Following a hearing on the defendants' exception, the trial court signed a judgment sustaining the defendants' exception and dismissing Cook's claim with prejudice. Cook now appeals from the trial court's judgment.

DISCUSSION

A party urging an exception raising the objection of prescription has the burden of proving facts sufficient to support the exception. Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 5 (La. 11/29/05), 917 So.2d 424, 428. However, when the face of the plaintiff's petition shows that the prescriptive period has run, the burden shifts to the plaintiff to demonstrate that prescription was suspended or interrupted. In re Medical Review Panel for Claim of Moses, 00-2643, p. 6 (La. 5/25/01), 788 So.2d 1173, 1177.

Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition, with all allegations accepted as true. La. C.C.P. art. 931 ; Cichirillo, 04-2894 at p. 5, 917 So.2d at 428. When there is no dispute regarding material facts, only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court's legal conclusions are not entitled to any deference. Shannon v. Vannoy, 17-1722, p. 9 (La. App. 1st Cir. 6/1/18), 251 So.3d 442, 449.

In the instant case, Cook filed his petition for tort action on September 5, 2013, based upon actions and alleged injuries occurring on November 28, 2009. Therefore, the action is clearly prescribed on its face, and the burden shifted to Cook to demonstrate that prescription had been suspended or interrupted. Cook asserted that his petition for tort action was not prescribed because his filing of a April 10, 2010 petition for judicial review, wherein he also sought monetary damages, interrupted prescription.

All prisoner complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures. See La. R.S. 15:1172. Louisiana Revised Statute 15:1172(E) provides that liberative prescription for any delictual action for injury or damages arising out of claims asserted by a prisoner in a complaint or grievance in an administrative remedy procedure (ARP) shall be suspended upon the filing of the complaint or grievance and shall continue to be suspended until the final agency decision is delivered. Thereafter, a party aggrieved by an agency decision may file a petition for judicial review in accordance with La. R.S. 15:1177. However, La. R.S. 15:1177(C)provides, in pertinent part:

This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.

After receiving a response from the prison determining that his grievance was unfounded on January 3, 2010, Cook filed a petition for judicial review of the prison's decision in the 19th JDC on April 10, 2010, which was within the one-year prescriptive period. However, the judicial review procedure does not apply to delictual actions for injury or damages, as tort claims must be filed separately as original civil actions. See La. R.S. 15:1177(C) ; Garrison v. State ex rel. Department of Corrections, 10-1570, p. 2 (La. App. 1st Cir. 3/25/11) (unpublished opinion). Therefore, the April 10, 2010 filing of a petition for judicial review did not properly assert or preserve Cook's tort claims and as such, it did not interrupt prescription as to those claims. Accordingly, Cook's September 5, 2013 petition for tort action is prescribed.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to Demond F. Cook.

AFFIRMED.

Crain, J. concurs

      Cook appealed this decision to the United States Court of Appeal, Fifth Circuit, but his appeal was dismissed. See Cook v. Lamont, 537 Fed. Appx. 568 (5th Cir. 2013).

      Cook raises several assignments of error relating to the merits of his action. However, the only issue before the trial court, and therefore, before this court on appeal, is whether Cook's action for damages is prescribed. Accordingly, our opinion is limited to consideration of this issue.


author: Judge Regina Bartholomew-Woods

text:
    STATE of Louisiana v. Dominique JENKINS
    NO. 2018-KA-0253
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2019
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, CHIEF OF APPEALS, Michael Danon, Assistant District Attorney, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

Defendant, Dominique Jenkins (hereinafter referred to as Defendant), appeals the jury's verdict finding him guilty of manslaughter and the district court's October 20, 2017 judgment sentencing him to thirty-eight (38) years imprisonment at hard labor. For the reasons that follow, we affirm Defendant's conviction and sentence.

STATEMENT OF THE CASE

On December 11, 2014, a grand jury returned a true bill of indictment charging Defendant, Howard Taylor ("Mr. Taylor"), and Vernon Clay ("Mr. Clay") each with one count of second degree murder in violation of La. R.S. 14:30.1. Defendant appeared for arraignment and entered a plea of not guilty on January 29, 2015. On August 14, 2015, the district court held a hearing on the motion to suppress the statement of Defendant and co-defendants. The district court rendered its ruling on December 9, 2015, granting the motion to suppress Mr. Taylor's statements and denying the suppression of Mr. Clay's and Defendant's statements. The State of Louisiana ("the State") and Mr. Clay objected and noticed their intent to seek writs. On April 21, 2017, Defendant filed a motion to sever his case from Mr. Taylor and Mr. Clay requesting that each have separate trials, which the district court granted. Subsequently, Mr. Clay withdrew his plea of not guilty and entered a plea of guilty to accessory after the fact and to being a second felony offender. On August 9, 2017, the State filed a motion in limine to exclude Mr. Taylor's statement, which the district court granted. In response, Defendant filed a writ application for supervisory review of the district court's ruling. This Court and the Louisiana Supreme Court both denied Defendant's writ application. State v. Jenkins , 2017-0756, p. 1 (La. App. 4 Cir. 9/6/17), writ denied , 2017-1521 (La. 9/8/17), 225 So.3d 475.

The jury trial commenced on September 13, 2017, and on September 15, 2017, the jury returned a ten-to-two verdict finding Defendant guilty of manslaughter, a violation of La. R.S. 14:31. On October 2, 2017, Defendant filed motions for a new trial and post-verdict judgment of acquittal, which the district court denied. On October 20, 2017, Defendant was sentenced to thirty-eight (38) years of imprisonment at hard labor with credit for time served. Defendant filed a motion to reconsider sentence, which the district court denied. Defendant now files this appeal and asserts six (6) assignments of error including two pro se assignments of error.

STATEMENT OF FACTS

In the early morning hours of June 25, 2014, Detective Chris Laborde of the Eighth District, as well as other members of the New Orleans Police Department ("NOPD"), responded to a call of an aggravated battery by shooting that occurred in the 500 block of Frenchman Street. The victim of the shooting was Julius Dunn ("Mr. Dunn"). A cursory investigation occurred in which several photos were taken of the area and two shell casings were recovered. Mr. Dunn was injured on the scene and taken to the hospital where he later succumbed to his injuries.

Detective Vaught's Testimony

Detective Ryan Vaught ("Detective Vaught") of the NOPD Homicide Division was then assigned the case. Detective Vaught was able to obtain video surveillance footage of the shooting from several establishments in the area. In his narration of the surveillance video obtained from Club Vaso ("Vaso"), Detective Vaught testified that Defendant, Mr. Clay, and Mr. Taylor exited the club and headed toward Decatur Street. The same surveillance video showed Mr. Dunn and a group of friends exiting Vaso on Frenchmen Street walking along the sidewalk toward Chartres Street. Further, the video showed Mr. Dunn, Defendant, Mr. Clay, and Mr. Taylor engage in a verbal discussion outside of Vaso.

The surveillance footage from Louisiana Music Factory showed Defendant, Mr. Clay, and Mr. Taylor exit Vaso; Defendant is seen turning back toward Vaso and Mr. Dunn and his group of friends as Defendant walked away. Defendant, Mr. Clay, and Mr. Taylor, subsequently, exited the camera frame. Shortly thereafter, a white SUV, with its headlights off, pulled out of a parking lot on Decatur Street. During his investigation, Detective Vaught discovered Defendant, Mr. Clay, and Mr. Taylor occupied the white SUV on the night of the shooting.

On the surveillance video obtained from the Blue Nile, the white SUV is seen with the brake lights illuminated, indicating that it was slowing or stopping. Then, people are seen reacting to something and Mr. Dunn is seen holding his stomach while running outside of the camera frame. According to Detective Vaught, the shooting occurred at the Blue Nile. He summarized that the white SUV pulled out of a parking lot located on Decatur Street near Elysian Fields Avenue with its headlights off, traveled westbound on Decatur Street, and turned right on Frenchman Street heading northbound, passing several businesses and continued to the Blue Nile where the shooting happened, and then continued to travel northbound on Chartres Street to Royal Street where it turned left.

During Detective Vaught's investigation, he discovered one of the friends with Mr. Dunn that night was Daniel Bryant ("Mr. Bryant") who was near Mr. Dunn when he was shot. Detective Vaught interviewed Mr. Bryant the day after the homicide. During the interview, Mr. Bryant showed an Instagram photograph of Defendant and Mr. Clay on his cellphone and identified both men by name, assigning Defendant as the shooter. Detective Vaught stated that he printed out the photograph and both Mr. Bryant and Detective Vaught signed it. After this interview, Detective Vaught performed a query search of the names of Defendant and Mr. Clay to obtain any records . He obtained a search warrant for the Instagram account associated with the photograph. Thereafter, he received a data compact disc from Instagram containing information for the account of "Shawtyy_too_turnt;" the account contained more than a hundred photographs of Defendant, but not many photographs of Mr. Clay or Mr. Taylor. The court record reflects that this Instagram account belonged to Defendant.

Detective Vaught conducted a second interview with Mr. Bryant and his attorney, Dante Butler ("Mr. Butler"), wherein Mr. Bryant identified Defendant and Mr. Clay as two of the three suspects in the surveillance footage. Further, Mr. Bryant confirmed the identities of Defendant and Mr. Clay when the photographs were presented.

During his investigation, Detective Vaught learned that Defendant and Mr. Clay were cousins. After this interview, Detective Vaught applied for arrest warrants for Defendant and Mr. Clay. After reviewing the photographs and information posted on Defendant's Instagram account, Detective Vaught identified the third suspect as Howard Taylor.

Detective Vaught gave a description and a picture of the white SUV seen in the surveillance footage to a Jefferson Parish Sheriff's Office ("JPSO") detective, who provided a license plate number matching a vehicle with a similar description; the vehicle had South Carolina plates. It was discovered that Jasmine Branch ("Ms. Branch") was issued a traffic citation while driving that vehicle in Jefferson Parish. However, Detective Vaught was unable to search the vehicle because Ms. Branch had informed him the car had been wrecked in the interim between the shooting and the interview.

Detective Vaught discovered that Ms. Branch was Mr. Taylor's girlfriend. A photo of a bail bond receipt evincing her name was posted on Defendant's Instagram account; the bail bond receipt was for Mr. Taylor. Detective Vaught interviewed Mr. Clay and Mr. Taylor, but declined to apply for arrest warrants for them. Nevertheless, both were indicted for the crime.

Defendant agreed to give a recorded statement, which the State played in open court. Detective Vaught read Defendant his Miranda Rights. On the recording, Defendant, who admitted his nickname was "Shawty," stated that some time in June 2014, he went to Vaso with his cousins, Mr. Clay and "Donald." Defendant stated that sometime later, the three men (himself, Mr. Clay, and Donald) decided to leave Vaso and proceeded to Donald's green Infinity SUV to leave the area. Defendant denied that he was ever inside of a white SUV at any time that night and stated that he was only with Mr. Clay and Donald. When Detective Vaught told Defendant that he received information that did not corroborate his story, Defendant stated he did not know why anyone would implicate him in this crime and elected to end the interview.

Detective Laborde and his team recovered two shell casings from the scene along with Mr. Dunn's belongings including clothing, a cellphone, and other items. A pellet was recovered during Mr. Dunn's autopsy, but there was no DNA or fingerprint evidence to test.

On cross-examination, Detective Vaught admitted that none of the surveillance videos obtained show footage of the parking lot where the white SUV pulled out from or footage that revealed the occupants inside of the vehicle. He also admitted the he could not recall whether crime scene technicians took any measurements between where Mr. Dunn collapsed and the location where the shell casings were recovered. On redirect examination, Detective admitted that he was discontented with the lack of evidence recovered from the crime scene and the inadequacies of the investigative procedure prior to his involvement.

After Detective Vaught testified, the State called Mr. Bryant to testify, but he refused. The State requested that Mr. Bryant be declared a hostile witness, which the district court granted. After speaking with his attorney, Mr. Bryant testified that he was currently serving a sentence in the Department of Corrections for convictions unrelated to the current matter. Mr. Bryant also invoked his Fifth Amendment privilege, which the district court declined to recognize. Consequently, the record reflects that Mr. Bryant testified that he was not offered anything in exchange for his testimony, but still refused to testify. On cross-examination, Mr. Bryant further refused to testify.

The State recalled Detective Vaught to the stand. Detective Vaught testified that he was familiar with Mr. Bryant from prior encounters. Detective Vaught also testified that he had taken the recorded statement by Mr. Bryant the day after the shooting. The State attempted to introduce and publish the recorded statement, but Defendant objected on grounds that it violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. The district court sustained Defendant's objection.

Sean McElrath's Testimony

The State then called Sean McElrath ("Mr. McElrath"), an NOPD employee, to the stand. Mr. McElrath is a firearms examiner for the Crime Lab. Mr. McElrath was qualified as an expert in the field of firearms identification. Mr. McElrath examined the ballistics evidence in this matter and examined six (6) specimens; two (2) of the specimens were forty-five caliber cartridge casings and Mr. McElrath was able to determine that both were shot from the same weapon. The other four specimens were projectile fragments recovered from Mr. Dunn's body and at least one of the projectile fragments was consistent with forty-five class ammunition.

On cross-examination, Mr. McElrath testified that his examination revealed that only one gun was used and explained the process of the reaction produced when this type of gun is fired. Mr. McElrath described the reaction as a "mini-explosion" that produces a flame inside of the gun chamber that explodes the projectile out of the barrel of the gun. The flame produces a "muzzle flash," which varies in visibility when this gun is fired; however, the "muzzle flash" is more visible at night. Mr. McElrath stated he was not presented with the actual firearm for testing and had no information to identify the shooter.

On re-direct examination, Mr. McElrath testified, after reviewing the surveillance footage, he did not see a "muzzle flash" inside of the white SUV; however, he testified that this did not negate the fact that one could have gone off, but that he simply could not see because of the quality of the surveillance video. Mr. McElrath further testified that too many variables existed to determine the location of the gun when fired based solely on the location of the shell casings recovered at the scene.

Dr. Cynthia Gardner's Testimony

The State's next witness was Dr. Cynthia Gardner ("Dr. Gardner"). Dr. Gardner is a forensic pathologist and New Orleans Coroner's Office Deputy Coroner who performed Mr. Dunn's autopsy and authored the autopsy report. Dr. Gardner testified that Mr. Dunn suffered from one gun shot in his lower chest, but there was no exit wound. She further testified that Mr. Dunn suffered from internal injuries. The autopsy report indicates that the bullet and its fragments punctured Mr. Dunn's stomach, liver, inferior vena cava, diaphragm, right lung, and ninth rib. Dr. Gardner testified that she did not find any gunpowder residue or stippling on Mr. Dunn's body. She determined that the cause of death was a homicide. On cross-examination, Dr. Gardner testified that she could not determine the identity of the shooter.

Mr. Butler's Testimony

The State called Mr. Butler, the attorney for Mr. Bryant, to the stand. He relayed that Mr. Bryant willfully gave a statement to the police prior to trial, but had since changed his mind regarding testifying at trial. A third party informed him that Mr. Bryant had received threats via social media. After learning of this information, Mr. Butler informed the State and Mr. Bryant. Notwithstanding the aforementioned, Mr. Bryant never indicated his knowledge of the threats or expressed fear for his life if he testified.

On cross-examination, Mr. Butler reiterated that Mr. Bryant was not aware of the social media posts or that his initial refusal to testify was attributed to fear because of these posts. He also admitted that Mr. Bryant had sought assistance with the sentence he received in Jefferson Parish and did not want to testify if the State was unwilling to "help." However, Mr. Butler also testified that Mr. Bryant did intend to cooperate by testifying at trial. On re-direct examination, Mr. Butler reiterated that Mr. Bryant had not received any assistance for his guilty plea in Jefferson Parish and intended to testify.

Mr. Bryant's Testimony

The State re-called Mr. Bryant to the stand. The State asked Mr. Bryant why he was now testifying despite his initial refusal. He responded that he "just needed time to think about it." Mr. Bryant identified Mr. Dunn as his cousin and confirmed that they were together, along with two other men, at Vaso the night of the shooting. He testified that he only knew one of the men as DJ. Mr. Bryant stated that he saw Defendant and Mr. Clay outside Vaso; he and Defendant "passed words." There had been prior altercations with both Defendant and Mr. Clay. He explained that the three of them (Mr. Bryant, Mr. Clay, and Defendant) had been at odds for some time. Prior to the night of the shooting, Mr. Bryant had never seen them at Vaso, but he "knew it was going to be something."

The State then directed Mr. Bryant to testify as to the sequence of events that led up to the shooting. According to Mr. Bryant, as Defendant and Mr. Clay left Vaso, he observed them walk up Decatur Street; both men continually looked back at Mr. Bryant and his group as they walked. Shortly thereafter, the group decided to leave Vaso and started walking up Frenchman Street to their parked vehicle. As they walked, he noticed the white SUV, with Defendant inside, approaching. He identified Mr. Clay as the front seat passenger and Mr. Taylor as the driver. Upon seeing the vehicle, Mr. Bryant shouted "[t]hat's them," and the group stopped walking. He saw Defendant roll down the rear window, pull out the gun, and shoot; the group turned and ran.

Mr. Bryant stated that after the vehicle was out of sight, the group stopped running; it was at this time that Mr. Dunn noticed that he had been shot and collapsed. According to Mr. Bryant, he called for someone to call the ambulance and waited at the scene until Mr. Dunn was transported to the hospital, but did not talk to any police. The next day, he spoke to police and identified a photograph of Defendant and Mr. Clay from an Instagram account.

He knew something was going to happen when he saw Defendant in the back seat of the white SUV. The State played the surveillance footage, and Mr. Bryant narrated the moment he noticed Defendant pull out the gun and point it out of the rear window. Mr. Bryant further testified that he had no personal knowledge of any threats made toward him prior to the trial. However, his family informed him that they saw social media posts suggesting that Mr. Bryant was a "rat." When the State showed him copies of the social media posts, Mr. Bryant testified that he had never seen these posts. He also confirmed that his nickname was "Diesel" as evinced in the social media posts.

On cross-examination, Mr. Bryant testified that Detective Vaught made initial contact with him via telephone. After this conversation, Mr. Bryant agreed to go to the police station to give a statement only if it was "off the record" because he did not want his name to be in the police report. Defendant's counsel played the surveillance footage again and directed Mr. Bryant's attention to the white SUV. When questioned as to whether Defendant was hanging out of the window at any point, Mr. Bryant admitted that Defendant is not seen on the video hanging out of the window, because Defendant was not actually hanging out of the window at the time the shots were fired. Mr. Bryant also admitted that he did not see a "muzzle flash" when the shots were fired. Mr. Bryant also explained that, about a year prior to the shooting, he had a feud with Mr. Clay that began when the two engaged in a vehicle chase during which Mr. Clay fired a gun at him several times causing him to drive his vehicle off the road. Mr. Bryant denied knowing the reason for the chase. He further testified that Mr. Clay and two other individuals shot at his house, while his mom, brother, and father were inside of the home. Mr. Bryant testified that Defendant was not with Mr. Clay when this incident occurred. However, some time thereafter, Mr. Bryant testified that he had an exchange with Defendant and Mr. Clay at a gas station, but stated Defendant did not have a gun on this occasion. He also testified that he was not in fear of testifying or afraid of Defendant.

On re-direct examination, the State asked Mr. Bryant to confirm what he saw when the white SUV approached him and the group. In response, Mr. Bryant identified Defendant in the courtroom and testified that he was certain that Defendant was the shooter.

Deddie Dunn's Testimony

The State's final witness was Deddie Dunn ("Ms. Dunn"), Mr. Dunn's mother. She testified that she was aware that Mr. Dunn and Mr. Bryant would hang out together, but did not know Mr. Dunn was out with Mr. Bryant on the night of the shooting. She thought Mr. Dunn was on his way back to Alexandria. On the day after the shooting, Mr. Bryant went to her house, but did not share any details about the shooting.

Detective Vaught's Testimony

In his case-in-chief, Defendant re-called Detective Vaught, Defendant's only witness. Detective Vaught recalled that Mr. Bryant stated that the back windows to the white SUV were tinted; however, he had sufficient visibility inside of the vehicle. He further testified that Mr. Bryant had clear visibility of Defendant once the window was down and saw him holding a semi-automatic hand gun in his left hand. Detective Vaught also admitted his uncertainty regarding the approximate location where Mr. Dunn collapsed. He further reiterated his dissatisfaction with how the preliminary investigative procedure was conducted and the evidence recovered from the scene.

Detective Vaught, on cross-examination, testified that Mr. Bryant's statements made during the interviews corroborated the surveillance footage. He also testified that the majority of Defendant's recorded statement contradicted the surveillance footage and other evidence recovered during his investigation. Detective Vaught further testified that he interviewed Donald Isom who failed to corroborate Defendant's statement.

On redirect examination, Detective Vaught confirmed that there was no surveillance footage recovered that showed Defendant enter the white SUV in the parking lot. He also testified that he could not recall if there was another exit in the parking lot where the green Infinity could have possibly exited.

DISCUSSION

Errors Patent

A review of the record does not reveal any errors of patent.

Assignments of Error

Defendant asserts the following assignments of error, as well as two (2) pro se assignments of error:

(1) Whether the district court erred in determining Mr. Taylor's statement was not proper impeachment evidence;
(2) Whether the district court erred in allowing the State to continue to question Mr. Bryant regarding threats made to him and/or his family over the objections of Defendant's counsel;
(3) Whether the district court erred in denying Defendant's request for jury instructions that jury's verdict should be unanimous as opposed to a ten person majority; and
(4) Whether the district court erred in accepting the non-unanimous verdict as a legal one.

Pro Se Assignments of Error:

(1) Whether the district court erred in determining Mr. Bryant's testimony was proper; and
(2) Whether the district court erred in denying the admission of Mr. Taylor's statement.

For the reasons that follow, we find that the assignments of error lack merit.

Assignment of Error No.1 and Pro Se Assignment of Error No. 2

In his first assignment of error, Defendant asserts that the district court erred in ruling Mr. Taylor's statement was improper impeachment evidence. At trial, Defendant argued that the use of Mr. Taylor's statement should be permitted as extrinsic evidence to attack the credibility of Mr. Bryant's testimony by eliciting testimony from Detective Vaught that he received information contradictory to Mr. Bryant's testimony. Defendant also argued that the substance of Mr. Taylor's statement would not be used for the truth of the matter asserted, but for impeachment purposes only.

Similarly, in Defendant's pro se appellate brief, he argues that the district court erred in ruling Mr. Taylor's statement inadmissible. Defendant argues that Mr. Taylor's statement is inculpatory and, as such, should have been deemed non-hearsay because of his failure to testify at trial; thus, arguing that Mr. Taylor should have been regarded as an unavailable witness.

As noted above, the trial court granted both of the State's motion in limine excluding the use of Mr. Taylor's statement at trial. As it relates to the State's initial motion in limine , on supervisory review, this Court and the Louisiana Supreme Court both upheld the trial court's ruling. Jenkins , 2017-0756, p. 1, writ denied , 2017-1521, 225 So.3d 475. This Court, in particular, did not find that the trial court abused its discretion in granting the State's motion. Id. "The fact that this Court has previously ruled on this issue implicates the law of the case doctrine."

State v. Zeitoun , 2017-0366, (La. App. 4 Cir. 11/8/17), 231 So.3d 934, 944. This Court, in Zeitoun , noted that:

"The law of the case doctrine requires that, as a general rule, appellate courts refuse to reconsider their own rulings on a subsequent appeal of the same case." Unless the defendant produces new evidence showing that the prior ruling was patently erroneous and produced an unjust result, an appellate court will not reverse its prior rulings. The doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. (internal citations omitted). (emphasis added.)

Id.

In this instant matter, Defendant did not produce any new evidence that evinces this Court's prior ruling was "patently erroneous" or "produced an unjust result" that would warrant a reversal. Thus, this issue is barred on appeal pursuant to the law of the case doctrine.

Consequently, we find these assignments of error lack merit.

Assignment of Error No.2

In Defendant's second assignment of error, he asserts the district court erred in allowing, despite Defendant's objections, the State to continue to question Mr. Bryant regarding threats made to him and/or his family. The State sought to introduce social media posts that Defendant argues were inadmissible evidence of other crimes and hearsay.

As a general matter, "evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial." State v. Trung Le , 2017-0164, p. 19 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 657 (citing La. C.E. art. 404(B)(1) ; Statev. Prieur , 277 So.2d 126, 128 (La. 1973) ). Accordingly, La. C.E. art. 404(B)(1) provides:

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

The court record reflects that the State introduced social media posts characterizing Mr. Bryant as a "rat" and a "snitch" and insinuated that he should "kill himself" for testifying against Defendant. Defendant argues that these social media posts were not permissibly introduced for other crimes or bad acts evidence. Instead, Defendant characterizes the State's line of questioning as prejudicial. Contrarily, the State argues it did not improperly illicit prior bad acts evidence and had legitimate reasons to establish Mr. Bryant's non-cooperation at trial. The State also argues that Defendant did not properly preserve this issue for appeal.

We agree that Defendant did not properly preserve this issue for review. At trial, Defendant did not raise an objection based upon inadmissible other crimes evidence or improper character evidence. This Court reasoned, in State v. Griffin , that:

It is well-settled that an irregularity or error, relating to "the ruling or order of the court," cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C.Cr.P. art. 841 A; State v. Marlowe , [20]10-1116, p. 35 (La.App. 4 Cir. 12/22/11), 81 So.3d 944, 966. Not only must a contemporaneous objection be made, but also La. C.Cr.P. art. 841 A requires that a defendant make "known to the court ... the grounds therefor," i.e., the grounds for his objection, and he is limited on appeal to the grounds articulated at trial. State v. Ott , [20]10-1307, p. 13 (La.App. 4 Cir. 1/5/12), 80 So.3d 1280, 1287. A new basis for objection cannot be raised for the first time on appeal. (Emphasis added.)

State v. Griffin , 2015-0125, pp. 22-23 (La. App. 4 Cir. 9/16/15), 176 So.3d 561, 574-75.

At trial, the record reflects that Defendant raised several objections, but did not raise any objection on grounds to which he now complains. Thus, Defendant cannot raise this objection for the first time on appeal.

Thus, we find these assignments of error lack merit.

Assignments of Error No. 3 and 4

In Defendant's third and fourth assignments of error, he argues that the district court erred in denying his request that the jury should be instructed on a unanimous verdict and accepting the ten-to-two verdict as legal. Defendant argues the non-unanimous verdict violates the Sixth and Fourteenth Amendment to the United States Constitution and the Louisiana Constitution.

La. Const. Art. 1 § 17 states, in pertinent part, that:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. (Emphasis added).

Here, Defendant was charged with second degree murder, a charge that carries a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, for the shooting that occurred in June 2014. He was convicted of the lesser crime of manslaughter by a ten-to-two jury verdict. This Court acknowledges that since Defendant filed his appellate brief, the La. Const. Art. 1 § 17 has been amended to prohibit non-unanimous verdicts for crimes committed on or after January 1, 2019; however, the Louisiana Supreme Court has not ruled that non-unanimous jury verdicts for crimes committed prior to January 1, 2019 unconstitutional. Generally, Louisiana follows the rule that "a constitutional provision or amendment has prospective effect only, unless a contrary intention is clearly expressed therein." State v. Cousan , 1994-2503, pp. 17-18 (La. 11/25/96), 684 So.2d 382, 392-393. The crime in this instant matter occurred in June 2014, which was before January 1, 2019. Thus, the district court's jury instructions were appropriate and the ten-to-two jury verdict is a legal verdict.

We find these assignments of error lack merit.

Pro Se Assignment of Error No. 1

In Defendant's pro se appellate brief, he argues that the district court erred in deeming Mr. Bryant's testimony proper.

Defendant argues that despite the fact Mr. Bryant invoked his Fifth Amendment privilege, the district court allowed Mr. Bryant's recorded statement to be played in open court. Defendant argues this action was a violation of his right under the Confrontation Clause of the Sixth Amendment of the United States Constitution. Contrary to this assertion, the court record reflects that the district court sustained Defendant's objection to the recorded statement on grounds it violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. Thus, the court record does not reflect that the district court committed this error.

Thus, we find this assignment of error lacks merit.

CONCLUSION

For the aforementioned reasons, Defendant's conviction and sentence are affirmed.

AFFIRMED

      La. R.S. 14:30.1 provides second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm.

      This Court consolidated the writ applications and granted the State's writ application and denied Mr. Clay's writ application determining that neither Mr. Taylor's nor Mr. Clay's statements should be suppressed. Mr. Clay applied for a writ of certiorari with the Louisiana Supreme Court which upheld the ruling of this Court. State v. Clay , et al . , 2016-0140, p. 1 (La. App. 4 Cir. 4/22/2016), writ denied , 2016-0978 (La. 9/16/16), 206 So.3d 205.

      Mr. Clay was sentenced to ten years imprisonment.

      In Mr. Taylor's statement, he admitted that Defendant was armed with a gun the night of the shooting and was the individual that rolled down the rear window in the white SUV where the shots were fired; however, Mr. Taylor stated Defendant was not the individual who fired the shots, assigning the other co-defendant, Mr. Clay, as the shooter.

      The State filed a second motion in limine to exclude the use of Mr. Taylor's statement in any form because Defendant's counsel alluded to this statement during his opening statement at trial. The trial court granted this motion as well.

      La. R.S. 14:31 states, in pertinent part, that "[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."

      Detective Vaught testified that surveillance footage was obtained from the following establishments: Club Vaso, Mona's Café, The Maison, Blue Nile, Dat Dog, Louisiana Music Factory, and a residence located at 628 Frenchman Street.

      Detective Vaught testified he was able to identify one of the friends as Daniel Bryant. However, Detective Vaught testified he was only able to obtain the nicknames of the other friends: Boy-Boy and DJ.

      During the trial, when Detective Vaught testified to this, Defendant objected to this identification as hearsay, which the district court sustained.

      Detective Vaught reached out to the Jefferson Parish Sheriff's Office for assistance in obtaining information from its databases.

      Detective Vaught presented Mr. Bryant with confirmation photographs of Defendant and Mr. Clay because Mr. Bryant made identification of the two men in a prior interview. However, Mr. Bryant refused to sign the photographs after identification, so Detective Vaught signed each one, but this interview was audio-video recorded and conducted in the presence of Mr. Bryant's attorney.

      Ms. Branch informed Detective Vaught that the white SUV was registered to her mother.

      Defendant stated that he did not know Donald's last name; however, Detective Vaught was able to identify the cousin as Donald Isom.

      During the State's questioning, Mr. Bryant invoked his Fifth Amendment privilege. The district court declined to recognize Mr. Bryant's invocation, reasoning that Mr. Bryant did not have a legal reason to invoke the privilege.

      For his failure to testify, the district court held Mr. Bryant in contempt of court, imposing a six (6) month sentence to be served consecutively with his current sentence.

      The record reflects that the State noticed its intent to seek supervisory writ application. On appellate review, this Court and the Louisiana Supreme Court denied the State's writ application. State v. Jenkins , 2017-0771 (La.App. 4 Cir. 9/14/17), writ denied , 2017-1553 (La. 9/14/17). Thus, Mr. Bryant's recorded statement was never played in open court; however, the recorded statement was proffered by the State.

      Dr. Gardner explained that gun residue usually travels about a maximum six (6) inches away from the muzzle of gun. If residue is recovered on a body, she testified that usually indicates the gun was within that range. She also explained that gun stippling, commonly known as powder burn, occurs when unburned flakes of gunpowder spew out and cause a scrape or abrasion on the surface of the skin. She explained this usually occurs within a distance of two feet from the handgun.

      Mr. Bryant stated that Mr. Bryant went by the nickname "Diesel." Social media posts introduced by the State referenced "Diesel," and characterized "Diesel" as a "rat" and a "snitch."

      Mr. Butler did not articulate the type of "help" Mr. Bryant was seeking from the State.

      Mr. Butler relayed that Mr. Bryant intended to testify hoping that the six (6) month sentence imposed by the district court would be recalled.

      Mr. Bryant further expressed that he was uncomfortable testifying the day before.

      At the time of the shooting, he only knew Defendant and Mr. Clay.

      Mr. Bryant testified, after Detective Vaught printed the photograph, he circled Defendant and Mr. Clay and signed the photograph. At a subsequent interview, Mr. Bryant confirmed the identities of Defendant and Mr. Clay. He identified Defendant as "Shawty." Mr. Bryant stated, while he was willing to participate in the investigation, he did not want his name associated with the case or in any discovery exchanged between parties. He did not explain the reasons behind this request.

      Mr. Bryant told Detective Vaught that the weapon was a semi-automatic gun.

      Mr. Bryant initially denied refusing to give a statement unless it was off the record. To refresh his recollection, Defendant's counsel played the audio recording of this interview in which he then confirmed this statement was made.

      Mr. Bryant he did not provide this information about the shooting incident to the police during the investigation for the instant case.

      Ms. Dunn testified that Mr. Dunn was living in Alexandria with his father at the time of the shooting, and on the night of the shooting, he was leaving to return to Alexandria.

      In accordance with La. C.Cr. P. art. 920, all appeals are reviewed for errors patent. State v. Anderson , 2008-962, p.2 (La. App. 3 Cir. 2/4/09), 2 So.3d 622, 624.

      The State's initial motion in limine was a pre-trial motion that the trial court granted. The State's second motion in limine was filed during trial which the trial court granted as well.

      Defendant filed his appellate brief on October 5, 2018. The amendment to La. Const. Art. 1 § 17 prohibiting non-unanimous jury verdicts for capital crimes committed on or after January 1, 2019 became effective on December 12, 2018. However, State v. Ramos , is currently before the Supreme Court of the United States to address whether a state criminal defendant has the right to a unanimous jury verdict pursuant to the Sixth Amendment of the United States Constitution as incorporated through the Fourteenth Amendment of the United States Constitution. State v. Ramos , 2016-1199 (La. App. 4 Cir. 11/2/17), 231 So.3d 44, writ denied , 2017-2133 (La. 6/15/18), 257 So.3d 679, and writ denied sub nom. State ex rel. Evangelisto Ramos v. State , 2017-1177 (La. 10/15/18), 253 So.3d 1300, and cert. granted , No. 18-5924, --- U.S. ----, 139 S.Ct. 1318, --- L.Ed.2d ----, 2019 WL 1231752 (U.S. Mar. 18, 2019).