source: Caselaw Access Project

author: PERRY, Judge.

license: Public Domain

text:
    Arthur ETIENNE, Jr. v. C. THOMPSON AUTOMOTIVE, INC., et al
    18-725
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Joslyn Renee Alex, Alex & Associates, 227 Rees Street, Breaux Bridge, LA 70517, COUNSEL FOR PLAINTIFF/APPELLANT: Arthur Etienne, Jr.
    Kristin L. Beckman, BARASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC, 909 Poydras Street, 24th Floor, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE: Peerless Insurance Company.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   PERRY, Judge.

The plaintiff, Arthur Etienne, Jr. ("Etienne"), appeals the adequacy of the general damages the trial court awarded him on a judgment by default. Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 27, 2013, Etienne was involved in a motorcycle accident. Within a year of the accident, Etienne filed suit against C. Thompson Automotive, Inc. ("Thompson Automotive"), contending Thompson Automotive defectively manufactured his motorcycle and he suffered injuries as a result of that manufacturing defect. In his initial petition, Etienne alleged that Thompson Automotive had a liability policy with "XYZ Insurance Company." Later, Etienne amended his petition, replacing "XYZ Insurance Company" with Peerless Insurance Company ("Peerless"). Service was made on Thompson Automotive and Peerless through Louisiana's long-arm statute, on June 2, 2014 and October 21, 2014, respectively.

On February 9, 2017, Etienne moved for a preliminary default against Thompson Automotive and Peerless. Later, on February 26, 2018, the trial court entered a final default judgment against both Thompson Automotive and Peerless. After hearing Etienne's testimony about the circumstances of his accident and his injuries, the trial court awarded general damages of $ 7,000.00 and medical expenses of $ 2,219.12 but declined to award damages for lost wages because it was "not satisfied that [Etienne] met [his] burden."

On April 23, 2018, Etienne timely filed a motion for appeal. Peerless filed an answer to Etienne's appeal on October 15, 2018.

TIMELINESS OF PEERLESS'S ANSWER TO THE APPEAL

At the outset, we must determine if Peerless timely filed its answer to the appeal.

Louisiana Code of Civil Procedure Article 2133 provides that an appellee seeking to have the judgment modified, revised, or reversed must file an answer to the appeal not later than fifteen days after the return date or the lodging of the record, whichever is later. This court mailed a notice of lodging to the parties on September 17, 2018, making the answer due on October 2, 2018.

Alternatively, the answer was due within fifteen days of the return date, which the trial court set "according to law." The timing of the return date is governed by La.Code Civ.P. art. 2125, which provides that when there is testimony to be transcribed, the return date is forty-five days from the date estimated costs are paid. As the Deputy Appeals Clerk for Acadia Parish confirmed in correspondence to this court, Etienne paid the estimated costs on July 8, 2018. As a result, the return date was August 23, 2018, and Peerless had fifteen days within which to file its answer to appeal or until September 7, 2018.

Peerless's answer was filed on October 12, 2018, long after the two dates provided in La.Code Civ.P. art. 2125. Accordingly, Peerless's answer to the appeal was untimely. Therefore, Peereless's answer is dismissed and stricken from the record.

DAMAGE AWARDS

Etienne appealed the trial court's general damage award, arguing the court abused its discretion in fixing the general damage award at $ 7,000.00 and in rejecting his claim for lost wages.

In Bouquet v. Wal-Mart Stores, Inc. , 08-0309, pp. 4-5 (La. 4/4/08), 979 So.2d 456, 458-59, the court addressed the methodology for the appellate review of general damages made under the provisions of La.Civ.Code art. 2324.1, as follows:

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry., Co. , 00-0066, p.13 (La. 10/30/00), 773 So.2d 670, 682 ; Boswell v. Roy O. Martin Lumber Co., Inc. , 363 So.2d 506, 507 (La.1978) ; Anderson v. Welding Testing Lab., Inc. , 304 So.2d 351, 352 (La.1974)....
The standard of review applicable to a general damages award is the abuse of discretion standard. Anderson , 304 So.2d at 353 ; Coco v. Winston Indus., Inc. , 341 So.2d 332, 335 (La.1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan , 00-0066, p. 13, 773 So.2d at 682 ("Vast discretion is accorded the trier of fact in fixing general damage awards."); Anderson v. New Orleans Pub. Serv., Inc. , 583 So.2d 829, 834 (La.1991). An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. Theriot v. Allstate Ins. Co. , 625 So.2d 1337, 1340 (La.1993) ; Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan , 00-0066, p. 13, 773 So.2d at 682-83 ; Youn , 623 So.2d at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Theriot , 625 So.2d at 1340 ; Youn , 623 So.2d at 1261.
Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Duncan , 00-0066, p. 14, 773 So.2d at 683 ; Cone v. Nat'l Emergency Serv. Inc. , 99-0934, p. 8 (La. 10/29/99), 747 So.2d 1085, 1089 ; Youn , 623 So.2d at 1261. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Theriot , 625 So.2d at 1340 ; Reck v. Stevens , 373 So.2d 498, 501 (La. 1979). Prior awards, however, are only a guide. Theriot , 625 So.2d at 1340.

Lastly, "[t]he issue of whether the amount of damages awarded conflicts with similar awards only arises once it has been ascertained that the [judge or] jury abused its discretion in determining the amount of damages awarded." Miller v. LAMMICO , 07-1352, p. 29 (La. 1/16/08), 973 So.2d 693, 711.

At the confirmation hearing, Etienne testified that on July 27, 2013, he was operating a 2002 Hayabusa motorcycle on Interstate 10 in Acadia Parish when the back end of the motorcycle dislodged and dropped as he was travelling between 55 and 60 miles per hour. Etienne lost control of the motorcycle and was ejected.

Etienne testified that after the accident, he was treated at the Jennings American Legion Hospital emergency room. X-rays taken at that time showed Etienne suffered a closed fracture of the left clavicle; in Etienne's words, "[t]hey found out that my left shoulder had separated a little bit." He was also treated for an abrasion of the left elbow. After dressing the left elbow abrasion, the nursing staff applied a clavicle strap with sling to Etienne's left arm, he was discharged, and told to take Tylenol as needed for pain.

Approximately three days after Etienne's hospital discharge, Dr. Michael R. Holland, Etienne's family physician, treated his injuries. Dr. Holland examined and treated Etienne five times between July 30, 2013 and October 1, 2014. As Etienne testified, Dr. Holland explained that his injuries would heal on their own.

As to continuing pain, Etienne testified at the confirmation hearing that: his left side bothers him; the scars on his arm healed; and laying on his left side still bothers him. Based upon this testimony, Etienne suggests, without elaboration and comparison to past awards for truly similar injuries, that the trial court's award of $ 7,000.00 is greatly disproportionate. Rather, he argued to the trial court and again before us that an award of $ 70,000.00 would have been more appropriate.

After carefully reviewing Etienne's testimony, it is abundantly clear his shoulder injury did not require surgery or any similar medical treatment. To the contrary, the shoulder healed on its own and Etienne treated his pain with over-the-counter medication. Under these facts, a general damage award of $ 7,000.00 was appropriate and well within the discretion of the trial court.

Next, Etienne contends the trial court erred in rejecting his claim for lost wages. Relying on Birdsall v. Regional Electric & Construction, Inc. , 97-0712 (La.App. 1 Cir. 4/8/98), 710 So.2d 1164, he argues that a plaintiff's own testimony can establish a claim for lost wages.

It is well established that the trial court has broad discretion in ascertaining a claim for lost wages and such an award cannot be made if the record does not support it. Driscoll v. Stucker , 04-0589 (La. 1/19/05), 893 So.2d 32. Under well established jurisprudence, the plaintiff has the burden of proving by a preponderance of the evidence not only that the defendant's negligence harmed him, but also that he has lost wages because of that negligence. Boyette v. United Servs. Auto. Ass'n , 00-1918 (La. 4/3/01), 783 So.2d 1276. "[P]roof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not."

Jordan v. Travelers Ins. Co. , 257 La. 995, 245 So.2d 151, 155 (La.1971). It is the plaintiff's burden to establish "the length of time missed from work" and must "prove past lost earnings." Mathews v. Dousay , 96-858, p. 15 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 513. This court has also recognized that a plaintiff's uncorroborated, self-serving testimony may not necessarily be sufficient to support an award of lost wages. Id.

At the confirmation hearing, Etienne's testimony showed that he is self-employed as the owner of a detail shop. He said he immediately returned to work, and he was always on location at the shop, but there was not much he could do for a couple of months. Nonetheless, Etienne said his father works full-time with him, and his son and his nephew work part-time; they all worked with him after his injury. Finally, he testified his detail shop generates income of about $ 1,500.00 to $ 2,000.00 a week.

When we review this testimony, it is evident the trial court was presented with no evidence that Etienne lost any earnings after the accident. Although Etienne described his business in some detail, there was no testimony his detail shop ever generated income after his accident less than what he earned prior thereto. Accordingly, we find the trial court did not abuse its discretion in rejecting Etienne's claim for lost wages.

DISPOSITION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed equally to Etienne and Peerless.

AFFIRMED.

      In its answer to the appeal, Peerless confuses the payment of estimated costs, the triggering date specified in La.Code Civ.P. art. 2125, with the date Etienne paid the filing fee to this court for his appeal. It is the payment of estimated costs tendered in the trial court that begins that computation, not the date payment of the cost of appeal was made, a fixed cost paid to this court.

      La.Civ.Code art. 2324.1 provides, "In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury."


author: KYZAR, Judge.

text:
    STATE of Louisiana v. Damon BROUSSARD
    18-678
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Keith A. Stutes, District Attorney, Roger P. Hamilton, Jr., Assistant District Attorney, Fifteenth Judicial District, P.O. Box 288, Crowley, LA 70527, Phone (337) 783-8831, COUNSEL FOR APPELLANT: State of Louisiana.
    J. Kevin Stockstill, 300 Stewart Street, Lafayette, LA 70501, Phone (337) 262-0203, COUNSEL FOR DEFENDANT/APPELLEE: Damon Broussard.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The State of Louisiana appeals from a trial court judgment granting a motion to quash a bill of indictment charging the defendant, Damon Broussard, with one count of molestation of a juvenile. The defendant was indicted by a grand jury with one count of molestation of a juvenile, in violation of La.R.S. 14:81.2. The indictment was filed in the trial court on February 19, 2014, under trial court docket number 81972. He was also indicted by a grand jury on one count of indecent behavior with a juvenile, in violation of La.R.S. 14:81, and one count of molestation of a juvenile, in violation of La.R.S. 14:81.2, under trial court docket number 81971. The defendant was prosecuted simultaneously with common pleadings and hearings, although the cases were not officially consolidated or joined. The same motion to quash was filed and granted by the trial court under both docket numbers. The appeal of trial court docket number 81971 is the subject of a separate appeal with this court in State of Louisiana v. Damon Broussard , 18-677. The issues as to each appeal are identical.

For the reasons set forth in State of Louisiana v. Damon Broussard , 18-677 (La.App. 3 Cir. 3/13/19), 269 So.3d 1094, we reverse the decision of the trial court and remand for proceedings consistent herewith.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Damon BROUSSARD
    18-677
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Keith A. Stutes, District Attorney, Roger P. Hamilton, Jr., Assistant District Attorney, Fifteenth Judicial District, P.O. Box 288, Crowley, LA 70527, Phone (337) 783-8831, COUNSEL FOR APPELLANT: State of Louisiana.
    J. Kevin Stockstill, 300 Stewart Street, Lafayette, LA 70501, Phone (337) 262-0203, COUNSEL FOR DEFENDANT/APPELLEE: Damon Broussard.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The State of Louisiana appeals a trial court judgment granting a motion to quash a bill of indictment charging the defendant, Damon Broussard, with one count of indecent behavior with a juvenile and one count of molestation of a juvenile. For the reasons set forth herein, we reverse the decision of the trial court and remand for proceedings consistent herewith.

DISCUSSION OF THE RECORD

The defendant, Damon Broussard, was indicted by a grand jury on one count of indecent behavior with a juvenile, in violation of La.R.S. 14:81, and one count of molestation of a juvenile, in violation of La.R.S. 14:81.2. The indictment was filed on February 19, 2014. On March 27, 2014, the defendant filed a single pleading containing multiple motions therein, as follows:

Motion for a Preliminary Hearing; Motion for Discovery of Material Discoverable Under the Authority of Brady v. Maryland and Kyles v. Whitley ; Motion for Discovery of Records of Criminal Arrests and Convictions of State's Witnesses; Motion for Oyer of Warrants of Arrest, Search, and Seizure and Affidavits; Motion for Production of "Initial Reports" R.S. 44:3A(4); Motion for Discovery Pursuant to Code of Criminal Procedure Articles 716, et seq. ; Motion for State to Disclose to Defendant Grants of Immunity, Plea Bargain, Agreement or Consideration Granted to Any Witness or Prospective Witness of the State; Motion to Suppress Evidence; and a Request for Notice Under La. C.E. 404(b) and 412.2.

On March 28, 2014, the trial court signed an order setting a hearing date of May 5, 2014, for six of the eight discovery motions filed by the defendant. The order for hearing did not include the motion for a preliminary examination or the motion to suppress. The minutes of the trial court for May 5, 2014, reflect that the hearing on the discovery motions was continued to June 18, 2014. On June 18, 2014, the minutes of the trial court and the transcript of the hearing reflect that counsel for the defendant advised the trial court that the discovery motions set for hearing that date had been satisfied by the State and that he reserved the right to file additional motions after reviewing the provided discovery material.

The trial court minutes for June 18, 2014, further reflect that a pre-trial conference set for that day was passed, and it was later set for July 23, 2014, but was again passed and reset for October 15, 2014. On October 15, the pre-trial conference was again passed and reset for November 19, 2014. On November 19, it was passed and reset for March 23, 2015. On March 23, 2015, the pre-trial conference was passed and reset for September 21, 2015. The trial court minutes for November 16, 2015, reflect that the trial of the matter was set for that day, but was continued on motion of the State and reset for a status hearing on December 17, 2015, and trial was set for January 25, 2016. Thereafter, neither the trial court minutes nor the transcript of the proceedings reflect any hearings, appearances, or motions being filed until April 2017.

The defendant filed a motion to quash on April 5, 2017, alleging that he had not been brought to trial within the two-year time limit from the institution of prosecution. The minutes of court for May 1, 2017, reflect that the trial of the case, scheduled for that day was continued on motion of the State. It further reflected the filing of the defendant's motion to quash and that the State was ordered to submit a reply brief within two weeks. On August 31, 2017, the hearing on the motion to quash was reset to September 25, 2017. Following the September 25 hearing, the trial court denied the motion to quash, finding that the defendant's Motion for Preliminary Hearing and Motion to Suppress had never been disposed of, and thus, continued to suspend the time limitation for commencing trial. The defendant applied for writs to this court, and on February 16, 2018, we issued the following writ ruling:

WRIT GRANTED AND MADE PEREMPTORY: The Defendant seeks review of the trial court's September 25, 2017 determination that his Motion for Preliminary Hearing and Motion to Suppress were unresolved preliminary pleas that suspended the running of prescription under La.Code Crim.P. art. 580. The motions either became moot on June 18, 2014, when defense counsel said the Defendant's discovery motions were satisfied and reserved his right to file additional motions or were abandoned when defense counsel made no effort to have them set for hearing for approximately three and a half years. Cf. State v. Williams , 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258 ; State v. Washington , 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673 ; State v. Vernon , 16-692 (La.App. 4 Cir. 12/21/16), 207 So.3d 525, writ denied , 17-137 (La. 9/22/17), 227 So.3d 824. Accordingly, the trial court's ruling is vacated, and these matters are remanded for reopening of the motion to quash hearing.

State v. Broussard , 17-1009 (La.App. 3 Cir. 2/16/18) (unpublished opinion). Judge Savoie dissented, as follows:

Savoie, J. dissents. The Motion for Preliminary Hearing and Motion to Suppress filed in March 2014 are preliminary pleas that suspended the running of prescription under La.Code Crim.P. art. 580. Because the motions were unresolved at the time the Motion to Quash was filed, I find no error in the trial court's September 25, 2017 ruling and would deny the Defendant's writ application.
See State v. Dillon , 06-488 (La.App. 5 Cir. 11/28/06), 947 So.2d 86.

Id.

After the case was remanded to the trial court, the motion to quash was reset for March 1, 2018. At a hearing held that date, the trial court granted the motion to quash, relying on the writ decision of this court, from which the State sought review by writ application to this court. On June 12, 2018, this court granted the State's writ application and remanded the case to the trial court with instructions to treat the State's notice of intent to file a writ application as a motion to appeal. State v. Broussard , 18-262 (La.App. 3 Cir. 6/12/18) (unpublished opinion). Thereafter, the State moved for an appeal, which was granted by the trial court on June 18, 2018. On appeal, the State argues that the trial court erred in granting the motion to quash.

Louisiana Code of Criminal Procedure Article 578(A) provides that:

[N]o 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; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.

Louisiana Code of Criminal Procedure Article 580(A) (emphasis added) further provides:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578shall be suspended until the ruling of the court thereon ; but in no case shall the state have less than one year after the ruling to commence the trial.

The supreme court has distinguished between a suspension of the limitation on the commencement of trial and the interruption of the running of the time limitation:

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. See La.Code Crim.Proc.Ann. arts. 532(7), 581 ; see also State v. Brown , 451 So.2d 1074, 1079 (La.1984) ; State v. Taylor , 439 So.2d 410 (La.1983) ; State v. Walgamotte , 415 So.2d 205 (La.1982). When defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. See State v. Brown , 451 So.2d 1074, 1079 (La.1984) ; State v. Taylor , 439 So.2d 410, 412 (La.1983) ; State v. Walgamotte , 415 So.2d 205 (La.1982). State v. Nations , 420 So.2d 967, 967 (La.1982) ; State v. Driever , 347 So.2d 1132 (La.1977).
An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if the defendant "cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state." Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that "in no case shall the state have less than one year after the ruling to commence the trial." La.Code Crim.Proc.Ann. art. 580.

State v. Rome , 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286-87 (footnote omitted).

For purposes of art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Cranmer , 306 So.2d 698, 700 (La.1975) ; State v. Elfert , 247 La. 1047, 175 So.2d 826, 828 (1965). These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks , 505 So.2d 714, 725 (La.1987) ; State v. Fabacher , 362 So.2d 555, 556 (La.1978). Joint motions for a continuance fall under the same rule. State v. Jones , 620 So.2d 341, 342 (La.App. 5th Cir.1993) (citing State v. Simpson , 506 So.2d 837 (La.App. 1st Cir.1987), writ denied , 512 So.2d 433 (La.1987) ); see also State v. Rome , 93-1221 (La.1/14/94), 630 So.2d 1284, 1288-89.

State v. Brooks , 02-792, p. 6 (La. 2/14/03), 838 So.2d 778, 782

The question before this court is whether the Motion to Suppress and the Motion for Preliminary Hearing filed by the defendant, which had not been heard or resolved by dismissal or ruling by the trial court at the time of the September 25, 2017 hearing on the motion to quash, suspended the tolling of the two-year limitation for the commencement of trial. The State relies on State v. Dillon , 06-488 (La.App. 5 Cir. 11/28/06), 947 So.2d 86 (a case cited by Judge Savoie in his dissent to this court's writ ruling), for the proposition that when a defendant files a motion to quash or other preliminary plea that has the effect of delaying trial, the running of the time limitation is suspended until the trial court rules on the pleadings.

In Dillon , the defendant was charged by bill of information on August 20, 2004, with third offense driving while intoxicated. The defendant filed an "omnibus pre-trial motion, including a Motion for Preliminary Examination and a Motion to Suppress Confession, Identification, and Physical Evidence," on July 25, 2005. Id. at 89. Subsequently, he filed a pro se Motion to Quash on November 2, 2005, which was denied on March 28, 2006. In discussing the running of the period of limitations, the appellate court stated, "The record reflects that there were no rulings on said motions. Therefore, the two-year time limitation for commencement of trial was suspended and never resumed." Id. at 89. As stated earlier, Dillon is cited by Judge Savoie in his dissent to this court's writ ruling. Because the defendant's Motion for Preliminary Hearing and Motion to Suppress were unresolved preliminary pleas that suspended the running of the prescriptive period, Judge Savoie found no error in the trial court's original denial of the defendant's motion to quash. Broussard , 17-1009 (Savoie, J., dissenting).

The majority opinion in our writ ruling, however, found differently. Citing Williams , 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258 ; State v. Washington , 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, and State v. Vernon , 16-692 (La.App. 4 Cir. 12/21/16), 207 So.3d 525, writ denied , 17-137 (La. 9/22/17), 227 So.3d 824, the majority held that the defendant's Motion for Preliminary Hearing and Motion to Suppress either became moot or were abandoned. Broussard , 17-1009. During the reopened motion to quash hearing and in its appellate brief, the State argued that Williams and Washington were distinguishable from the instant case. During the hearing, the State asserted that suppression was still a viable issue in the present case and would likely be re-urged by the defendant. Additionally, it asserted that in order for a motion to be considered abandoned, defense counsel had to specifically state that it was abandoned. The State further argued:

MR. HAMILTON: Your Honor, but if defense counsel can just file the motion and just let it go and, you know, say it's abandoned, and that's what we choose to do, then they're going to file motions, and then they'll pick and choose when they're going to serve it.
So three and-a-half years pass, and let's say it's for trial, and we set it for trial, and he finally says, "Hold on, I've got this motion to suppress. I need to hear it before we go to trial." They can't have it both ways.
THE COURT: I don't disagree with you, but the Third Circuit does, and I'm bound by - - I'm bound by their ruling. And I've looked at it; I don't see a way around it. I mean, I think what they're directing me to do is to grant the motion to quash on the remaining - - on the remaining charges. So I grant the motion to quash.

In its appellate brief, the State argues the following in a further attempt to distinguish Williams and Washington :

In Williams , the record did not reflect whether or not the trial judge ruled on the motion to suppress statements. The record in Williams reflected that the motion was moot because the state provided the defendant with information. The defendant proceeded to trial without objecting that the motion was outstanding. In the case at bar, the defendant did not waive the motion until the motion to quash was filed.
The defendant waived his right to have the motion to suppress considered by not alleging facts as required by La C Cr P Art 703 (E), by indicating that he was satisfied with the state's response to his motion to suppress and by proceeding to trial without raising any issue that he had an outstanding motion to suppress. State v. Washington , 98-69 (La.App. 5 Cir 1/26/99), 727 So.2d 673. In the case at bar, the defendant just passed the motion.[ ] He did not act upon the other motions nor did he accept the motion as satisfied. There are issues relating to text messages that may be suppressable [sic]. The motion went unresolved at the time the Motion to Quash was filed. As a result, the time limitation should be suspended until the Motion to suppress is heard or the defendant formally waives the motion.

It is clear from the State's arguments in both instances that it is asking us to reconsider the arguments and grounds previously considered in our writ ruling. This court has held that great deference should be afforded to pre-trial decisions, although this deference is not unbridled.

Although a defendant may seek review of a pretrial ruling even after a pretrial supervisory writ application is denied, when the defendant does not present any additional evidence on the issue after the pretrial ruling, the issue can be rejected. State v. Hebert , 97-1742 (La.App. 3 Cir. 6/3/98), 716 So.2d 63, writ denied , 98-1813 (La. 11/13/98), 730 So.2d 455, cert. denied , 529 U.S. 1072, 120 S.Ct. 1685, 146 L.Ed.2d 492 (2000) (quoting State v. Magee , 93-643, p. 2 (La.App. 3 Cir. 10/5/94), 643 So.2d 497, 499 ). However, "[j]udicial efficiency demands that this court accord great deference to its pre-trial decision unless it is apparent that the determination was patently erroneous and produced unjust results." Hebert , 716 So.2d at 68. Our review of the record reveals no additional evidence for the defendant's allegations of prosecutorial misconduct which would support his pretrial motions.

State v. Perry , 12-298, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, 580, writ denied , 12-2657 (La. 5/24/13), 116 So.3d 659 (alteration in original).

In his appellate brief, the defendant asserts that the arguments raised by the State have already been decided by this court and should not be revisited. Thus, the defendant contends that the State's claims should be denied. We conclude, however, that this court's prior writ ruling was patently erroneous and produced unjust results, as reflected below.

Our majority opinion in the writ ruling relied upon Williams , Washington , and Vernon as support for our finding that the defendant's Motion for Preliminary Hearing and Motion to Suppress "either became moot, on June 18, 2014, when defense counsel said the defendant's discovery motions were satisfied and reserved his right to file additional motions or were abandoned when defense counsel made no effort to have them set for hearing for approximately three and a half years." Broussard , 17-1009.

Having now had the benefit of a full appeal on this issue, we conclude that our reliance on the cited caselaw was misplaced. The cases relied upon dealt with two situations: First, with the defendant proceeding to trial after failing to request a hearing for a particular motion previously filed and then claiming as error on appeal the trial court's failure to rule a particular way on the motion; and second, with the defendant raising for the first time on appeal an issue raised in an undisposed of motion in the trial court.

The Williams case is used as support for the position that the motion to suppress was abandoned by the lapse of time or became moot by satisfaction of discovery requests. That was not the rationale of the fifth circuit's holding in Williams :

First, we note that the record does not reflect whether or not the trial judge ruled on the motion to suppress statements, which was based on the state's failure to notify defendant of any statements it intended to use at [trial]. However, the record reflects that the motion was moot because the state provided defendant with the information. Further, defendant proceeded to trial without objecting that the motion was outstanding. Thus, he waived all pending motions at the commencement of trial. State v. Price , 96-680 (La.App. 5th Cir. 2/25/97), 690 So.2d 191, 196.

Williams , 714 So.2d at 263-64.

The court in Williams , which dealt with an appeal after conviction, held that unresolved motion to suppress statements made by the defendant was abandoned because the defendant proceeded to trial without first seeking a disposition of the motion. As a further rationale for its holding, the court commented that the motion was rendered moot by the defendant's receipt of the statements from the State. However, it is clear that the motion in that case was based upon the State's failure to produce the statements prior to trial; thus, it was not a true motion to suppress evidence. That is an entirely different issue from the Motion to Suppress evidence in the case at hand, and there is no evidence in this record showing otherwise. Further, trial in this case has never commenced; thus the defendant's motion is not and has not been abandoned.

In Washington , the defendant again proceeded to trial without seeking the disposition of his motion to suppress. He further stated, in open court prior to trial, that he was satisfied with the State's response to his motion to suppress. The fifth circuit, in rejecting defendant's argument on appeal that the trial court erred in failing to consider his motion to suppress, stated:

We believe that defendant waived his right to have the motion to suppress considered. First, defendant did not allege facts in his motion to suppress as required by La.C.Cr.P. art. 703 E. Second, defendant indicated at the hearing that he was satisfied with the state's response to his motion to suppress. Finally, defendant proceeded to trial without raising any issue that he had an outstanding motion to suppress. State v. Williams , 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258. Accordingly, we find no merit to defendant's first assignment of error.

Washington , 727 So.2d at 676.

We further cited Vernon as support for our position; however, that reliance was also misplaced. In Vernon , the State argued before the trial court that the time limit for institution of trial was interrupted per the provision of La.Code.Crim.P. art. 579. It was only on appeal that the State attempted to argue the suspension of the time limitations for trial, as per the provisions of La.Code Crim.P. art. 580. The fourth circuit held that the State abandoned that claim by its failure to argue such in the trial court:

The State failed to assert, as a basis for its objection to the motion to quash, that the preliminary pleas suspended the time limitations period. In that the State failed to raise the issue of suspension, this Court concludes that the State intended to argue its objections based solely on La. C.Cr.P. art. 579. We find no reason to remand the case to allow the State a "second bite at the apple" to argue new grounds for denial of the motion to quash based on evidence which the State had available to it prior to the trial court hearing. Under these circumstances and in light of the trial court's discretion when ruling on a motion to quash, this Court will not consider the State's suspension argument as it is raised for the first time on appeal.

Vernon , 207 So.3d at 529.

Thus, the cases cited are not controlling in this particular case. Other cases further reflect the correctness of this position, including State v. Wagster , 361 So.2d 849 (La.1978), cited by the courts in Williams and in Washington . In Wagster , the supreme court reviewed a claim by the defendant on appeal concerning the denial of a hearing on his motion to quash the jury venire filed prior to trial. Without a hearing, the trial court denied the defendant's motion to quash the petit jury venire. While not questioning the ruling on the merits of the motion, the defendant argued on appeal that he was denied a constitutional and statutory right when he was refused the right to present evidence at a hearing on his motion. In rejecting the argument, the supreme court stated as follows:

The defense motion was filed ten days before trial and no subpoenas were requested on behalf of the defense. On the morning of the trial defense counsel stated that subpoenas were not issued for defense witnesses because he was unaware that the motion was set for hearing on the day of trial. It should be observed parenthetically that it is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise it may be considered that the motion has been abandoned. The record does not show that an effort was made to have a date set for a hearing.
Nevertheless, rather than delay the trial, the judge allowed defense counsel to outline the evidence he intended to introduce. Then, accepting this as proven, the trial judge denied the motion on its merits. Insofar as the merits of the motion is concerned, no prejudice is claimed and none occurred.

Id. at 856.

Thus, Wagster stands for the proposition that once a defendant proceeds to trial without having demanded a resolution of his pending motions, the court will consider those motions as having been abandoned. That again is not the case here.

This court in State v. Langley , 10-969, pp. 17-18 (La.App. 3 Cir. 4/6/11), 61 So.3d 747, writ denied , 11-1226 (La. 1/20/12), 78 So.3d 139, cert. denied , 568 U.S. 841, 133 S.Ct. 148, 184 L.Ed.2d 73 (2012), also recognized that it is the act of proceeding to trial without obtaining a disposition of a pending motion that triggers the abandonment of the motion and not the mere lapse of time during the pre-trial proceedings:

The filing by the defendant of the Motion To Recuse the District Attorney was a preliminary plea which suspended the running of the one-year limitation set forth in La.Code Crim.P. art. 578. State v. Vincent , 02-1452 (La.App. 3 Cir. 4/2/03), 843 So.2d 1174 ; State v. McDonald , 02-909 (La.App. 3 Cir. 2/5/03), 838 So.2d 128, writ denied , 03-807 (La. 10/17/03), 855 So.2d 758. The trial court never ruled on that motion, and it was never withdrawn by the defendant. Therefore, the time limitation was suspended until the trial began on November 2, 2009, when both the state and the defense announced that they were ready for trial, and the trial commenced. The defendant did not object to or raise the issue of the pending Motion to Recuse District Attorney. The motion was pending until the day the trial began, at which time it was considered abandoned by the defendant. State v. Craig , 32,209 (La.App. 2 Cir. 8/18/99), 747 So.2d 604. His failure to object constitutes a waiver of the objection. State v. Woodfox , 291 So.2d 388 (La.1974) ; State v. Jennings , 07-150 (La.App. 3 Cir. 5/30/07), 958 So.2d 144, writ denied , 07-1460 (La. 1/7/08), 973 So.2d 731 ; State v. Pratt , 32,302 (La.App. 3 Cir. 9/22/99), 748 So.2d 25.
The filing of the Motion To Recuse District Attorney suspended the running of the prescription. It remained suspended as it was neither withdrawn by the defendant nor ruled upon by the court before the trial commenced. Even if defense counsel's arguments at the September 17, 2009 hearing amount to a waiver or withdrawal of the Motion to Recuse the District Attorney, the suspension of prescription from February 2005 until September 2009 makes the November 2009 trial date timely. There is no violation of the defendant's right to a speedy trial.

Id. at 760.

The case at hand does not involve any overt pre-trial act or declaration of the defendant to waive either his Motion to Suppress or Motion for Preliminary Hearing prior to the hearing on September 25, 2017. It further does not involve the abandonment of the motion by proceeding to trial, as this case has not yet been tried. While the defendant may have waived his previously filed motions for discovery, he never formally waived on the record his Motion to Suppress or his Motion for Preliminary Hearing. Indeed, the transcript of the June 18, 2014 hearing reflects no mention of either motion. The order of March 28, 2014, setting the particular discovery motions for this hearing, ultimately held on June 18, 2014, specifically included only the following:

"Motion for Discovery of Material Discoverable under Authority of Brady v. Maryland and Whitley; Motion for Discovery of Records of Criminal Arrests and Convictions of State's Witnesses under Authority of Brady v. Maryland ; Motion for Oyer of Warrants of Arrest, Search and Seizure and Affidavits; Motion for Discovery Pursuant to Code of Criminal Procedure Articles 716, et seq. ; Motion for State to Disclose to Defendant Grants of Immunity, Plea Bargain, Agreement or Consideration Granted to any Witness or Prospective Witness of this State; Motion for Production of 'Initial Reports' R.S. 44:3A(4)."

There is no mention of the Motion to Suppress or the Motion for Preliminary Hearing in this order. The trial court minutes for June 18, 2014, state that counsel for the defendant informed the trial court during the hearing that "the discovery motions have been satisfied with the remainder being passed." (Emphasis added.) The transcript for the same date is consistent with the trial court minutes that it was in fact the discovery motions that were being addressed exclusively, where defendant's counsel stated the following:

We had filed various motions. I've spoken with Ms. Boustany, and she has made a copy of the discovery for us. So I just wanted to indicate for the record that it looks like our discovery motions are satisfied, however, I'd like to reserve my right to file any additional motions based on our review of the discovery.

Thus, we find that that neither the Motion to Suppress nor the Motion for Preliminary Hearing were formally waived or withdrawn in open court by the defendant until the initial hearing on the Motion to Quash. According to the plain language of La.Code Crim.P. art. 580, a formal waiver does not occur unless the request is made to the trial court and a ruling recognizing the dismissal thereof is rendered. Further, any pending motion has not been abandoned as the case is still pending trial.

Our jurisprudence is clear that a defendant can waive any pending motions during the proceedings themselves by acquiescence, such as by failing to object in open court, after the State announces, prior to trial, that no motions are pending and then proceeds to trial. This was the case in State v. Lambert , 98-730 (La.App. 4 Cir. 11/17/99), 749 So.2d 739, writ denied , 00-1346 (La. 1/26/01), 781 So.2d 1258. However, in the case sub judice, this matter has not yet proceeded to trial. More importantly, Lambert stands for the proposition that the State is under no duty whatsoever to ensure that any defense motion is heard.

As previously discussed, defendant effectively waived his right to a hearing on his motion to suppress. Defendant filed a motion to suppress the statement on 18 February 1997. On 21 March 1997, when the case was called for hearing on the motions, the State represented that no motions were pending. Defense counsel assented to this statement by his silence, and the trial court moved on with the case. There is no indication that defendant ever raised the motion to suppress the statements again. Accordingly, defendant abandoned his motion to suppress the statement. There was no error by the trial court in failing to conduct a hearing on the motion to suppress under these circumstances, and the State was under no duty to ensure that defendant's motion was heard.

Id. at 756.

In State v. Lavy , 13-1025 (La.App. 1 Cir. 3/11/14), 142 So.3d 1000, writ denied , 14-644 (La. 10/31/14), 152 So.3d 150, the first circuit considered an unresolved motion to view the crime scene, which was made by the defendant during trial. Therein, the court stated:

The motion to view the crime scene was abandoned. It is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise, it may be considered that the motion has been abandoned. State v. Wagster , 361 So.2d 849, 856 (La.1978) ; State v. Carter , 96-0337, p. 7 (La.App. 1st Cir. 11/8/96), 684 So.2d 432, 437.

Id. at 1009.

Thus, the abandonment of a pending pre-trial motion is triggered by the commencement and/or conclusion of trial or the entering of a guilty plea by the defendant.

We have found no decision by any court of this state that supports the proposition that a defendant can file a motion to suppress, or other preliminary plea, wait until after the two-year delay for trial, and then file a motion to quash for failure to timely try the case, using his own failure to seek resolution of his prior motion as an abandonment of the motion. To allow such would be to arm every defendant in a criminal proceeding with an arsenal of land mines in the form of multiple unresolved motions, frivolous or not, to gain the dismissal of charges on technical grounds, and thus, thwarting the justice process.

It further begs the question of when abandonment actually occurs if the mere lapse of time, absent a ruling on the pre-trial motion, constitutes legal abandonment or waiver of the motion or other preliminary plea. Do we set some arbitrary "reasonable time" within which to resolve a pending motion, and thereafter, declare that the defendant waived the motion, even if the trial has not yet commenced? We think not. As the caselaw clearly reflects, it is only the commencement of trial, prior to either the trial court's ruling on the motion on its merits or the trial court's ruling accepting a declaration of abandonment, waiver, or withdrawal of the motion by the defendant, that triggers recommencement of the running of the time limitations set forth in La.Code Crim.P. art. 580.

What is controlling here is the clear language of La.Code Crim.P. art. 580. The plain letter of the law provides for the suspension of the period in which to commence trial until the trial court rules on the motions in question. In this case, there was no ruling on the Motion to Suppress evidence and no hearing on the Motion for Preliminary Hearing, both of which were filed by the defendant on March 27, 2014. These motions were still pending, at least up to the time of the original hearing on the Motion to Quash on September 25, 2017. But for the erroneous granting of the motion to quash at the March 1, 2018 hearing, the suspension of the two-year trial limitation continues until the motions, including this Motion to Quash, are disposed of by a final ruling of the trial court or former withdrawal by the defendant and dismissal by ruling of the trial court, at which time the time period for trial shall recommence. To the extent that our writ ruling reflects otherwise, such was in error. Accordingly, the granting of the motion to quash is reversed, and the matter remanded for further proceedings.

DISPOSITION

For the reasons set forth herein, the order of the trial court granting the motion to quash the indictment of the defendant, Damon Broussard, is reversed, and this matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

      The defendant was separately indicted on another count of molestation of a juvenile that was prosecuted simultaneously with common pleadings and hearings, although the cases were not officially consolidated or joined. The same motion to quash granted by the trial court leading to this appeal was granted therein and is the subject of a separate appeal with this court in State v. Damon Broussard , 18-678.

      The trial court granted the motion to quash as to several other trial court docket numbers, which included charges of aggravated rape, molestation of a juvenile, and aggravated incest but denied the motions in this docket number and in in the docket number leading to the appeal with this court in Broussard , 18-678.

      The State asserts that the defendant's Motion for Preliminary Hearing and Motion to Suppress were passed on June 18, 2014. The transcript of the proceedings from that date does not indicate that defense counsel stated that any matters were passed. The minutes, however, reveal that defense counsel informed the trial court that the discovery motions were satisfied and the remainder of the motions were passed. While we find no irreconcilable conflict, if there is a conflict between the minutes and the transcript, "the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62.

      Although the March 28, 2016 trial court order setting the motions for hearing did not include the Motion to Suppress nor the Motion for Preliminary Hearing, the trial court minutes of May 5, 2014 and June 18, 2014, list these motions as being under consideration.

      The minutes of trial court do reflect that counsel for the defendant moved to dismiss the Motion to Suppress and the Motion for a Preliminary Hearing on September 25, 2017, on the date the Motion to Quash was first denied. There is, however, only an oral order from the trial court dismissing the Motion for a Preliminary Hearing in the transcript of the hearing, but no formal ruling of the court dismissing the Motion to Suppress.


author: PICKETT, Judge. SAVOIE, J., concurring.

text:
    Vernon MARTIN v. CITY OF CROWLEY
    18-737
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Ben L. Mayeaux, Quincy L. Mouton, NeunerPate, 1001 W. Pinhook, Suite 200, Lafayette, LA 70503, (337) 237-7000, COUNSEL FOR DEFENDANT-APPELLEE: City of Crowley.
    M. Benjamin Alexander, Laborde Earles Law Firm, LLC, 203 Energy Pkwy, Bldg. B, Lafayette, LA 70508, (337) 261-2617, COUNSEL FOR PLAINTIFF-APPELLANT: Vernon Martin.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   PICKETT, Judge.

Vernon Martin appeals the judgment of the trial court dismissing his claim for injuries arising from an incident in which he tripped after stepping into a hole on property owned and maintained by the City of Crowley (Crowley).

FACTS

On June 12, 2015, after leaving Gremillion's Drugstore in Crowley, Louisiana, Mr. Martin walked to his truck parked on West Fourth Street when he tripped on a hole in a grassy area between the sidewalk and the street. Mr. Martin claimed to suffer injuries to his back and his knee as a result of the incident. He filed a Petition for Damages naming as defendants Crowley, H & H Electrical Service (H & H), and H & H's insurer, Republic Underwriters Insurance (Republic). Mr. Martin alleged that Crowley was the owner of the grass strip where Mr. Martin tripped, and it may have created the hole over which he tripped. H & H had installed a utility pole for the International Rice Festival, and Mr. Martin alleged that the hole he tripped over may have been created by H & H. In a First Supplemental and Amending Petition, Mr. Martin added the International Rice Festival as a defendant, alleging that it may have created the hole.

H & H and Republic filed a Motion for Summary Judgment alleging there was no evidence that H & H created the hole. Mr. Martin did not contest the motion, and a judgment dismissing H & H and Republic was issued. Likewise, the International Rice Festival filed a Motion for Summary Judgment, which was unopposed by Mr. Martin. Thus, a judgment dismissing the claim against the International Rice Festival was executed. The action against Crowley proceeded to trial.

On May 7, 2018, a trial on the merits was convened. At the conclusion of Mr. Martin's case-in-chief, Crowley moved for a directed verdict. The trial court denied the motion. Crowley rested its case without presenting any evidence. The trial court then ruled in open court that Mr. Martin failed to prove that the hole in question presented an unreasonable risk of harm. Further, the trial court found that Mr. Martin failed to prove that Crowley had actual or constructive notice of the hole. The trial court dismissed Mr. Martin's claims against Crowley in a judgment dated May 17, 2018. Mr. Martin perfected this appeal.

ASSIGNMENTS OF ERROR

On appeal, Mr. Martin asserts two assignments of error:

1. The District Court erred in ruling that the hole at issue did not present an unreasonable risk of harm in light of evidence that Defendant had a reasonable expectation that pedestrians would be walking in the area where the hole was located; that the hole was several inches deep and wide, and partially obstructed by grass making it difficult for pedestrians to see from a reasonable distance; and where Defendant would not have had to incur substantial additional costs to inspect the grass strip at issue given that its already employee [sic] performed maintenance in the area on a regular basis.
2. The District Court erred in ruling that Defendant did not have actual or constructive knowledge of the hole at issue in light of evidence that Defendant's employees and representatives admitted to prior knowledge of a hole in the grass strip at issue, and admitted that by virtue of regular maintenance performed on the grass strip, they were in a position to observe and repair the hole prior to Plaintiff's injury.

DISCUSSION

As a public entity, Crowley's liability for a defective condition in its care or control is governed by La.R.S. 9:2800, which states:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state's benefit and use.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
E. A public entity that responds to or makes an examination or inspection of any public site or area in response to reports or complaints of a defective condition on property of which the entity has no ownership or control and that takes steps to forewarn or alert the public of such defective condition, such as erecting barricades or warning devices in or adjacent to an area, does not thereby gain custody, control, or garde of the area or assume a duty to prevent personal injury, wrongful death, property damage, or other loss as to render the public entity liable unless it is shown that the entity failed to notify the public entity which does have care and custody of the property of the defect within a reasonable length of time.
F. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
G. (1) "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.
(2) "Public site or area" means any publicly owned or common thing, or any privately owned property over which the public's access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.

In Chambers v. Village of Moreauville , 11-898, p. 5 (La. 1/24/12), 85 So.3d 593, 597, the supreme court explained the plaintiff's burden of proof in a claim governed by La.R.S. 9:2800 :

Under La. R.S. 9:2800, in order to prove a public entity is liable for damages caused by a thing, the plaintiff must establish: (1) custody or ownership of the defective thing by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Lasyone v. Kansas City Southern R.R. , 00-2628 (La. 4/3/01), 786 So.2d 682, 690 ; Dupree v. City of New Orleans , 1999-3651 (La. 8/31/00), 765 So.2d 1002, 1008.

Crowley admitted that the grass strip where Mr. Martin tripped was owned by the city at the time of this incident. We must therefore consider first whether the trial court erred in finding that the hole Mr. Martin tripped over constituted an unreasonable risk of harm. The courts have long held that whether a defect presents an unreasonable risk of harm must be determined on the particular facts of each case. See Hunter v. Dep't of Transp. & Dev. , 620 So.2d 1149 (La.1993). The trial court's determination in this regard is factual in nature, and we evaluate the findings of the trier of fact under the manifest error or clearly wrong standard of review. Rosell v. ESCO , 549 So.2d 840 (La.1989). To determine that the trial court's factual findings are manifestly erroneous, we must review the record in its entirety and determine that no reasonable basis exists to support the finding and that the record shows the fact finder is clearly wrong. Stobart v. State, Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993).

In Chambers , 85 So.3d at 597-8, the supreme court explained how courts determine if a condition is unreasonably dangerous:

Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. Pryor v. Iberia Parish School Bd. , 10-1683 (La. 3/15/11), 60 So.3d 594, 596 (citing Reed v. Wal-Mart Stores, Inc. , 97-1174 (La. 3/4/98), 708 So.2d 362, 365 ; Boyle v. Board of Sup'rs, Louisiana State University , 96-1158 (La. 1/14/97), 685 So.2d 1080, 1083 ). This Court has applied the risk-utility balancing test to determine whether a defect in a sidewalk creates an unreasonable risk of harm, and determined there is no fixed rule in determining whether a defect in a sidewalk is unreasonably dangerous.
Boyle, supra at 1082 (citing White v. City of Alexandria , 216 La. 308, 43 So.2d 618, 620 (1949) ). Instead, the facts and surrounding circumstances of each case control. Id.

The risk-utility balancing test considered four factors: (1) the utility of the allegedly defective condition; (2) the likelihood and magnitude of the harm, including whether the condition is obvious and apparent; (3) the cost of preventing the harm; and (4) the social utility or dangerousness of the activities of the plaintiff. Broussard v. State ex rel. Office of State Bldgs. , 12-1238 (La. 4/5/13), 113 So.3d 175.

Here, the hole at issue measured approximately five inches deep and three to four inches wide, according to Mr. Martin. Clearly, this hole is not useful. Further, the hole was obscured by grass, even in the pictures presented to the court, which were taken after Mr. Martin stepped into the hole, so it was not an obvious defect. The trial court found, though, that the cost to Crowley of finding holes in all the grassy areas maintained by the city was very high. The Mayor of Crowley, Gregory Jones, testified it would take a three-man crew to inspect grassy areas for holes along the eighty miles of roadway in Crowley. As for the social utility, the trial court found that Mr. Martin was walking through this grass strip when the area was immediately adjacent to a sidewalk.

Mr. Martin argues that a beautification program initiated by Crowley to encourage pedestrian traffic should weigh in favor of finding this hole of unknown origin that had been present for an unknown amount of time constituted an unreasonable risk of harm. While Mayor Jones did testify that the revitalization of downtown was meant to encourage pedestrian traffic, the plan included sidewalks for the purpose of walking right up to the doors of local businesses.

We find that the trial court properly weighed the evidence and applied the correct law. Balancing the factors, we cannot say the trial court committed manifest error in finding that the hole did not constitute an unreasonable risk of harm.

In his second assignment of error, Mr. Martin argues that the trial court erred in finding that Crowley did not have actual or constructive notice of the hole. At trial, Mr. Martin argued that Crowley had actual notice of the hole. He claimed that when he called the mayor immediately after tripping, the mayor indicated that he knew about the hole. Mayor Jones specifically refuted that testimony. Mr. Martin also claimed Mrs. Rosenbaum, an owner of Gremillion Drugstore, told him immediately after the incident that they had complained to Crowley about a hole. But even in his testimony, Mr. Martin said she referred to the pole set by H & H, which is not in the same location as the hole in which he tripped. Mrs. Rosenbaum was not called to testify, but Jeanne Robicheaux, a member of the family that owns the Gremillion's Drugstore, did testify. She was not at the store on the day of Mr. Martin's incident, but she testified she was not aware of an open hole in the grassy area and had heard no complaints about a hole. She did testify that someone at the store complained to the city about the utility pole, but not about any hole. "Where there is conflict in the testimony presented at trial, the trial court's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review." Poole v. Poole , 08-1325, p. 5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810 (citing Rosell , 549 So.2d 840 ).

On appeal, Mr. Martin claims the evidence he presented was sufficient for the trial court to determine that Crowley had constructive notice of the hole. As noted above, the statute defines constructive notice as "the existence of facts which infer actual knowledge." La.R.S. 9:2800(D). The trial court, in finding there was no constructive notice, specifically stated that it was impressed by the testimony of Jonathan Cormier. Mr. Cormier's job included the responsibility for maintaining the strip of grass at issue in this case. He testified that he mows the hole every one to two weeks in the summer, including in June when this incident occurred. He testified that he never saw the hole Mr. Martin stepped in before the accident. He testified that when he trims the edges of the area with a weedeater, he walks right in the center of the grassy strip. He testified that he would have walked right over where the hole was located when he maintained the area. If he had seen the hole, he would have filled it in with sand. Mayor Jones confirmed that Mr. Cormier has the authority to repair such a hole without any paperwork. Mayor Jones also commented that Mr. Cormier is very conscientious about his job.

Mr. Martin argues that Mr. Cormier failed to remember the pole that was in the area, and therefore his testimony is unreliable. Given the wide latitude afforded the trial court in making credibility determinations, we find no merit to this argument.

Mr. Martin also argues the trial court committed an error of law in not considering circumstantial evidence to find constructive notice. The trial court specifically found that there was no evidence presented about how long the hole was there or how the hole came to be. However, Mr. Martin failed to introduce any circumstantial evidence to support his theory that Crowley should be charged with constructive notice. He seems to suggest that because he could not prove how the hole was created or how long the hole had been there, and the grass grew up over the hole, the hole must have been there when Mr. Cormier last maintained the strip of grass. Therefore, he argues, Crowley should be charged with constructive notice of the hole because Mr. Cormier failed to notice what should have been noticed in the exercise of reasonable care. We find no merit to this argument.

While it is true that courts have adopted this test in interpreting the notice requirements of La.R.S. 9:2800.6, that statute includes a completely different definition of constructive notice:

(C)(1) "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. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

This court has held that in the context of La.R.S. 9:2800, "A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by the exercise of ordinary care ... the municipal authority must have known of its existence, and ... had reasonable opportunity to guard the public from injury by remedy of the defect." Ambrose v. City of New Iberia , 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37. The trial court did not find that just because the grass had grown over the hole, it had obviously been there long enough for the city to be aware of its existence. Given the totality of the evidence, we find no manifest error in that finding.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Vernon Martin.

AFFIRMED.

SAVOIE, J., concurs and assigns written reasons.

SAVOIE, J., concurring.

I agree with the majority that an affirmation is appropriate in this case. I would note a procedural issue, however. At the conclusion of Plaintiff's case-in-chief, the City of Crowley moved for a directed verdict. This matter was tried as a bench trial. The proper procedure was for the City of Crowley to move for an involuntary dismissal, not a directed verdict. See La.Code Civ.P. art. 1672. A motion for directed verdict is used in jury trials. See La.Code Civ.P. art. 1810. Nonetheless, the improper styling of the motion is harmless error.

I would further note that it is unclear whether the motion was actually denied. When the trial judge was asked in open court about whether her decision was based on a directed verdict or the judgment of the case as a whole, she replied, "I mean, I actually don't think a directed verdict was appropriate. The evidence was all in. And so I'm - - you know, I'm [going to] make a ruling." A judgment on the motion was not put into writing. On a motion for involuntary dismissal, the trial court is allowed to decline to rule until all of the evidence is in. The trial court can either rule on the motion for involuntary dismissal or it "may decline to render any judgment until the close of all the evidence." La.Code Civ.P. art. 1672. It is my opinion, based on the record, that the trial court declined to rule until all of the evidence was in, rather than deny the motion.


author: WICKER, J.

text:
    STATE of Louisiana v. Freddie D. GREENUP
    NO. 17-KA-690
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, FREDDIE D. GREENUP, Lieu T. Vo Clark
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   WICKER, J.

In this criminal appeal, defendant, Freddie Greenup, sought review of his convictions and sentences, imposed pursuant to guilty pleas, for four counts of distribution of cocaine in violation of La. R.S. 40:967(A) ; two counts of possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) ; two counts of being a felon in possession of a firearm in violation of La. R.S. 14:95.1 ; and an adjudication and enhanced sentence as a multiple offender pursuant to La. R.S. 15:529.1.

After finding that defense counsel's brief failed to comply with the requirements set forth in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), this Court issued an order instructing defense counsel to file a separate brief addressing the voluntariness of defendant's guilty pleas. We subsequently issued a per curiam order, remanding the matter to the trial court to hold a hearing to determine whether defendant's pleas were knowingly and voluntarily made. Specifically, this Court stated:

Our independent review of the record reflects a potential issue for appeal not addressed by counsel in her Anders brief. The record reflects that the trial judge imposed an illegally lenient sentence on defendant's convictions for being a felon in possession of a firearm in violation of La. R.S. 14:95.1. As stated above, the trial court sentenced defendant to fifteen years at hard labor for each of his felon in possession of a firearm convictions in violation of La. R.S. 14:95.1, with only the first ten years of each sentence to be served without benefit of probation, parole, or suspension of sentence However, La. R.S. 14:95.1 requires that the entirety of a defendant's sentence be imposed without benefit of probation, parole, or suspension of sentence. See La R.S. 14:95.1 ; State v. Simmons , 17-385 (La. App. 5 Cir. 12/27/17), 237 So.3d 610, 612, n.4. During defendant's Boykin colloquy, the trial court advised defendant as follows:
Court:
You understand that at the end of your guilty plea it's my intention to sentence you to 15 years at hard labor in the Department of Correction. Ten years of that on the 14:95.1 charge will be ordered to be served without benefit o[f] probation or parole or suspension of sentence and two years of each of the other counts will be ordered to [be] served without benefit o[f] probation or parole or suspension of sentence?
Defendant:
Say that again.
Court:
Sure. Of the 15 years that I intend to give you on all of these different counts, on the two counts of being a felon in possession of a firearm, ten years of that sentence will be without benefit or (sic ) probation or parole or suspension of sentence[.] You understand that?
Defendant:
Yes, sir.
Generally, a trial court is not required to furnish any "information about parole eligibility in order for the defendant's guilty plea to be voluntary."See Escobar v. Hall, 2016 WL 1171113, 2016 U.S. Dist. LEXIS 39303 (M.D. La. 3/2/16) (wherein the court found that the federal Fifth Circuit jurisprudence reflects that parole eligibility is a "collateral consequence" about which a defendant need not be informed); see also Billiard v. Prince , 2013 U.S. Dist. LEXIS 99072, * 46 (quoting Hill v. Lockhart , 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ); Trotter v. Vannoy , 695 Fed. Appx. 738, 742 (5th Cir. 2017). Although a trial court's failure to inform a defendant of the mandatory statutory restriction of benefits under La. R.S. 14:95.1 does not render a guilty plea involuntary (see State v. Harrell , 09-364 (La. App. 5 Cir. 5/11/10), 40 So.3d 311 ), a more nuanced question may be presented when the trial judge misinforms a defendant concerning parole eligibility and the defendant relies on that information in deciding to plead guilty.
When a defendant is misinformed concerning his parole eligibility by counsel or the court, it "may be problematic" in analyzing the voluntariness of the defendant's guilty plea or a claim for ineffective assistance of trial counsel. See Billiard , supra; State ex rel. LaFleur v. Donnelly , 416 So.2d 82 (La. 1982) ; Hill v. Lockhart, supra ;
State v. Dillworth , 14-0586 (La. App. 1 Cir. 7/14/14), 2014 La. App. LEXIS 1762.3

On January 24, 2019, on remand from this Court, the trial court conducted a hearing concerning the voluntariness of defendant's guilty pleas. At the hearing, defendant acknowledged that his pleas were knowingly and voluntarily made and that the trial court's incorrect advice concerning parole eligibility was not a determinative factor in his decision to plead guilty. Following supplementation of the appellate record with the transcript of the January 24, 2019 hearing, defendant filed a motion to dismiss his appeal in this Court. Upon review of the original and supplemental records, we hereby grant defendant's motion to dismiss his appeal. Accordingly, this appeal is dismissed.

APPEAL DISMISSED


author: LILJEBERG, J.

text:
    SUCCESSION OF Jerry Dale BRYANT
    NO. 18-CA-638
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2019
    COUNSEL FOR DEFENDANT/APPELLANT, BRYANT WOODS, Cassandra Butler, Independence
    Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

Appellant, Bryant Woods, appeals the trial court's judgment ordering him to pay reimbursements to appellee, Deborah M. Weal, for funds expended to satisfy a mortgage and property taxes, as well as to complete repairs and maintenance on co-owned properties. For reasons set forth more fully below, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2011, appellee, Deborah M. Weal, filed a Petition for Possession relating to the succession of decedent, Jerry Dale Bryant. Ms. Weal filed the petition in her capacity as the administratrix of the succession of her mother, Florence Agnes Bryant. The petition states Jerry Bryant died intestate in 2000, and Florence Bryant was his surviving spouse and sole heir. The petition further alleges that Florence subsequently died in 2005, and her daughter, Ms. Weal, was appointed as the administratrix of her estate. According to the petition, Florence and Jerry did not have any children during their marriage. It further alleged that Jerry had no other children and never adopted anyone.

Ms. Weal requested that, as the administratrix of Florence's succession, the trial court place her in possession of two pieces of immovable property which Florence and Jerry acquired during their marriage: 1) 644 Turtlecreek Lane in St. Rose, Louisiana ("St. Rose Property") and 2) a home and property located in Kentwood, Louisiana ("Kentwood Property"). On February 28, 2011, the trial court entered a judgment of possession placing Ms. Weal into possession and ownership of the two properties in her capacity as the administratrix of her mother's succession.

Over six years later on September 29, 2017, appellant, Bryant Woods, filed a Petition to Set Aside Judgment of Possession alleging that he is Jerry's biological son. The petition alleged that Jerry acknowledged his paternity of Mr. Woods in a child support proceeding pending in the same court, "State v. Jerry Bryant," Case No. 44,635. Mr. Woods alleged that Ms. Weal knowingly misrepresented that Jerry had no children. Therefore, Mr. Bryant asked the trial court to set aside the February 28, 2011 Judgment of Possession, and award him full ownership of the Kentwood Property as Ms. Weal had previously sold the St. Rose Property.

The trial court held an evidentiary hearing on Mr. Bryant's petition to set aside the judgment of possession on May 14, 2018. Mr. Woods was represented by counsel and Ms. Weal appeared pro se . Mr. Bryant testified that he was born in 1991 and had a close relationship with his father. He explained that his father paid child support and he stayed with his father during the school year and his mother during the summer until he was eight years old. When he was nine years old, he moved back to his mother's home and his father died a year later. He testified that his father had two stepchildren, Nee-Nee, who is deceased, and Debbie (Ms. Weal). Because Ms. Weal was much older, she had already moved out of the house when Mr. Woods lived with his father. He testified that he spent time with Ms. Weal's children when they visited in the summer.

Ms. Weal testified that she was not aware Mr. Woods was her brother until he filed to set aside the judgment of possession. Ms. Weal explained that she lived out of town when Mr. Woods lived with her parents. When she came home to visit, her mother told her that Mr. Woods was the child of a deceased niece that they were raising. Ms. Weal explained that as a result of this litigation, she learned her father had a relationship with another woman, Gilda Woods, and that Mr. Woods is her half-brother.

Mr. Woods' mother, Gilda Woods, testified that she was aware her son had an interest in the St. Rose and Kentwood Properties, and after Florence Bryant died in 2005, she would check the tax records for the properties to make sure the taxes were current. Neither Gilda nor Mr. Woods provided an explanation as to why Mr. Woods waited over 17 years after Jerry's death to come forward regarding his interests in the estate. Mr. Woods agreed that he and Ms. Weal were the only two people who had a "claim" to his father's property. He testified that he believed both properties were worth over $ 80,000.00, and asked the trial court to award him "around $ 40,000.00" for his half interest.

On the other hand, Ms. Weal sought reimbursements from Mr. Woods for funds she expended to preserve and maintain the properties in their father's succession. She explained that after her father died, her mother did not have any money, requiring Ms. Weal to help her mother pay debts owed on the St. Rose Property. Starting on August 1, 2000, she paid $ 501.00 for six months ($ 3,006.00) to satisfy a mortgage on the St. Rose Property. After her mother passed away in 2005, Ms. Weal learned about another loan owed to Bank One secured by the St. Rose Property. Ms. Weal paid $ 236.19 per month for 36 months ($ 8,502.84) to satisfy this debt. She also testified that she paid taxes on the St. Rose Property from 2005 to 2008, in the amounts of $ 489.00, $ 512.00 and $ 529.00 ($ 1,530.00), respectively. After 2008, she obtained a homestead exemption.

Ms. Weal also testified that after Hurricane Gustav in 2008, the St. Rose Property required repairs. In 2009, she paid $ 5,000.00 to repair the roof. In 2011, she paid $ 1,200.00 to replace the floors in the kitchen, bathroom and one bedroom. She also experienced a problem with the tub in one of the bathrooms and spent $ 2,500.00 for plumbing repairs.

In 2014, water began to seep into the house on the St. Rose Property and the floors began to crack because the house was shifting. She hired a repairman to help identify the cause of these problems and learned that she needed to elevate the house. She then received an offer to sell the St. Rose Property for $ 50,000.00 from an individual referred to her by the repairman. Because the problems were becoming worse and Ms. Weal could not afford to repair the property, she decided to accept the offer in August 2015. Prior to the sale, the title company handling the closing discovered two other liens were filed against the St. Rose Property in favor of Dixie Mortgage Company and another unnamed company. Ms. Weal stated that after deductions for the liens, she received $ 27,000.00 from the sale of the St. Rose Property.

After she sold the St. Rose Property, Ms. Weal began repairing the Kentwood Property and eventually moved there. She explained that prior to that time, the home sat unoccupied for many years, except for six months when someone agreed to pay $ 100 a month for rent and to help maintain the home. The home required extensive repairs. She paid $ 3,800.00 from her own funds to remove trees, garbage and some old sheds from around the house. She used the money she received from the sale of the St. Rose Property to repair the roof, wiring and plumbing. Ms. Weal testified that she spent $ 10,000.00 to repair the roof in October 2015. She also stated that she spent $ 6,500.00 for wiring, $ 2,800.00 for plumbing and $ 1,200.00 for windows. In addition to testifying regarding these repairs, Ms. Weal presented receipts for tax bills she paid in the amounts of $ 100.00 and $ 108.00, for 2013 and 2015. Ms. Weal testified that she did not retain any other documents regarding the payments she made for the mortgages and taxes for the St. Rose Property, nor for the repairs on both properties, because she was not aware this litigation would arise.

Ms. Weal testified that her parents paid $ 15,500.00 to purchase the property in 1997. The home has two bedrooms, one bathroom, a kitchen and a living room. The back of the home where the utility room is located was damaged by a fire shortly after she moved into the home. The home was not covered by insurance and she claimed that she cannot afford to repair the damage. Ms. Weal also testified that roofing work completed on the home was defective. Therefore, when it rains, water leaks into the walls. Because of the water damage, some of the electrical sockets no longer work. She also has boards over broken windows she cannot afford to repair. Ms. Weal testified that she believed the home was worth approximately $ 23,000.00.

On June 19, 2018, the trial court entered an Amended Judgment of Possession and Judgment on Motion to Set Aside Judgment of Possession. The trial court determined Ms. Weal did not knowingly misstate facts regarding Mr. Wood's paternity in the petition for possession. It also recognized Mr. Woods as an heir of Jerry Bryant and placed Ms. Weal in possession of both properties as the heir of Florence Bryant.

With respect to the St. Rose Property, the trial court ordered that Ms. Weal and Mr. Woods were each entitled to $ 13,500.00, half of the $ 27,000.00 realized from the sale. The trial court noted that Ms. Weal incurred substantial amounts to pay debts and taxes owed on the property, as well as to complete repairs, totaling $ 21,738.84. The trial court ordered Mr. Woods to reimburse Ms. Weal for half of the funds expended on the St. Rose Property in the amount of $ 10,869.42. The trial court further determined that after deducting these reimbursements, Ms. Weal owed Mr. Woods $ 2,630.58 from the proceeds she realized from the sale of the St. Rose Property.

The trial court also determined that Mr. Woods and Ms. Weal each possess fifty percent (50%) ownership in the Kentwood Property. It ordered Mr. Woods to pay Ms. Weal $ 12,150.00 for half of the $ 24,300.00, she spent to improve, repair and maintain the Kentwood Property. The trial court recognized that Ms. Weal obtained $ 600.00 of rental income and provided a credit of $ 300.00 to Mr. Woods. Therefore, the trial court ordered Mr. Woods to pay Ms. Weal $ 11,850.00 in reimbursements for funds she spent to improve, repair and maintain the Kentwood Property.

On July 27, 2017, Mr. Woods filed a motion and order for devolutive appeal, which the trial court granted on August 2, 2018.

DISCUSSION

On appeal, Mr. Woods raises several assignments of error and issues regarding the trial court's decision to place Ms. Weal into possession of Jerry's succession and the reimbursements awarded to Ms. Weal.

The trial court's factual findings and credibility determinations are entitled to great weight and will not be disturbed on appeal absent manifest error. Stead v. Swanner , 12-727 (La. App. 5 Cir. 5/16/13), 119 So.3d 110, 117, writ denied , 13-1285 (La. 9/20/13), 123 So.3d 174. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact's findings. Id.

With respect to the first issue, he argues the trial court erred by placing Ms. Weal "in possession of property of Mr. Bryant when the record does not show she was in possession of her mother's property." He further questions whether, as administratrix of her mother's estate, Ms. Weal is entitled to be placed in possession of her stepfather's property.

Mr. Woods appears to contest the portion of the trial court's judgment that places "Ms. Weal in possession of one half ownership of the estate of Jerry Dale Bryant (as Florence Agnes Bryant's heir)." We first note that Mr. Woods failed to provide any argument in his brief in support of this assignment of error. Uniform Rules, Courts of Appeal, Rule 2-12.4 requires that "[a]ll assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed." Because Mr. Woods failed to brief this assignment of error, we consider it abandoned. We further note that during his testimony, Mr. Woods agreed that he and Ms. Weal were Jerry's only heirs.

Mr. Woods next argues the trial court erred by requiring him to reimburse Ms. Weal without adequate proof of her expenditures. He also questions whether Ms. Weal is entitled to reimbursement for repairs to maintain homes she lived in and had use of since the decedent's death.

With respect to the adequacy of the proof provided regarding the reimbursements, Ms. Weal provided receipts for the taxes she paid on the Kentwood Property and also provided detailed testimony regarding the amounts she expended to satisfy the mortgage and taxes on the St. Rose Property. Furthermore, Ms. Weal provided extensive testimony explaining why both properties required significant repairs. The St. Rose Property sustained damage following Hurricane Gustav and the Kentwood Property remained unoccupied for a long time.

It is also understandable that Ms. Weal would not retain receipts for many of the payments she made considering the extensive period of time Mr. Woods waited before filing his petition asking to be recognized as an heir of the decedent. The evidence reveals that during this time, Ms. Weal expended significant funds to maintain the properties at issue. Mr. Woods did not demand an accounting of the succession or present evidence to contest Ms. Weal's testimony regarding the expenditures. Accordingly, we find that Ms. Weal's testimony constituted sufficient evidence to support the reimbursement amounts awarded by the trial court.

Mr. Woods also argues that the trial court should have reduced the amount of the reimbursements because Ms. Weal enjoyed use of both of the properties. It is unclear exactly when Ms. Weal began to live in the St. Rose Property though she did obtain a homestead exemption for the property in 2008. She testified that she was married until her husband died in 2012, and they lived in his house until he became sick at some unspecified time. After he became sick, they moved to the St. Rose Property. Ms. Weal testified that she moved into the Kentwood Property shortly after she sold the St. Rose Property in 2015.

La. C.C. art. 806 provides for reimbursements for necessary expenses and expenses for ordinary maintenance and repairs between co-owners:

A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
If the co-owner who incurred the expense had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.

First, Louisiana courts have determined that mortgage payments made by a co-owner who occupies a residence is not a "necessary expense" or "expense for ordinary maintenance" subject to reduction for enjoyment of the property. See Cahill v. Kerins , 34,522 (La. App. 3 Cir. 4/4/01), 784 So.2d 685. Therefore, Mr. Woods is not entitled to a reduction of these payments.

We further find that the trial court did not err by declining to reduce the amount of reimbursements due to Ms. Weal's use of the properties. We agree with the trial court that Mr. Woods did not present competent evidence regarding the rental value of the properties that would have allowed the trial court to assess Ms. Weal's "value of enjoyment" of the properties. We further note that the Kentwood Property, where Ms. Weal currently resides has boarded windows, a leaking roof, fire damage and electrical outlets that do not work in parts of the home due to water damage caused by the leaking roof.

Finally, Mr. Woods complains in the argument section of his appellate brief that the "court was clearly wrong in finding that Ms. Weal did not knowingly misstate the facts regarding Mr. Woods paternity or act in any fraudulent manner." The trial court heard testimony from both parties regarding Ms. Weal's limited interactions with Mr. Woods as a child. Ms. Weal testified that her mother told her Mr. Woods was the son of deceased niece. The trial court evaluated the credibility of the witnesses on this issue and the manifest error demands great deference to the trial court's findings. Mr. Woods failed to present any evidence or argument which would lead this Court to find manifest error on the part of the trial court.

DECREE

Based on the foregoing, we affirm the trial court's June 19, 2018 Amended Judgment of Possession and Judgment on Motion to Set Aside Judgment of Possession.

AFFIRMED

      Ms. Weal is the daughter of Jerry and Florence Bryant.

      An action for recognition of a right of inheritance and recovery of the whole or a part of a succession is subject to a liberative prescriptive period of thirty years. La. C.C. art. 3502. As explained above, Mr. Woods was 9 years old when his father died. He was at least 25 years old when he filed the motion to set aside the judgment of possession.

      It does not appear that the trial court included the payments for these tax bills in the reimbursement award. Ms. Weal did not appeal the amount awarded.