text:
    Jerry CRAFT v. PORTS AMERICA GULFPORT, INC., et al
    NO. 2018-CA-0814
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2019
   Christopher C. Colley, David Cannella, Jeremiah S. Boling, BARON & BUDD, P.C., 2600 CitiPlace Drive, Suite 400, Baton Rouge, LA 70810, COUNSEL FOR PLAINTIFF/APPELLANT

Kevin J. LaVie, Robert John Barbier, Meredith W. Blanque, PHELPS DUNBAR LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, Gus David Oppermann, V, Charles Douglas Wheat, WHEAT OPPERMANN PLLC, 848 Heights Blvd., Houston, TX 77007, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )

Judge Regina Bartholomew-Woods Jerry Craft ("Mr. Craft"), appeals the jury's award of $ 1,600,000.00 in general damages and the judgment notwithstanding the verdict ("JNOV") granted by the trial court in favor of Crowley Marine Services, Inc.'s (formerly known as Delta Steamship Lines, Inc.) and James J. Flanagan Shipping Corporation's (formerly known as New Orleans Stevedore), collectively hereinafter referred to as "Appellees", which struck the jury's award of $ 1,000,000.00 in future medical expenses. Appellees also appeal the trial court's judgment denying its JNOV motion as to the jury's finding of negligence. For the reasons that follow, we affirm, in part, and reverse, in part, the judgment rendered by the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2017, at eighty-two (82) years old, Mr. Craft was diagnosed with malignant mesothelioma, a rare cancer caused by exposure to asbestos. Mr. Craft filed the instant personal injury lawsuit against his former employers asserting that he contracted the disease while working as a longshoreman on the New Orleans Riverfront from 1953 until his retirement in 1989. As a longshoreman , Mr. Craft worked for several stevedore companies, including Appellees. The record reflects that some of the stevedore companies from which Mr. Craft worked settled out of court, were dismissed from the litigation, or did not appear in the litigation. Appellees, however, pursued litigation and the matter was tried before a jury.

At trial, Mr. Craft sought to prove that he was exposed to asbestos-containing products while employed by Appellees and that such exposure was the legal cause for his development of mesothelioma. Mr. Craft, Mrs. Clemmie Craft ("Mr. Craft's wife"), and Ms. Jermaine Craft ("Mr. Craft's daughter") testified at trial as to the severity of Mr. Craft's mesothelioma. Also, videotaped depositions of Mr. Kenneth Morris ("Mr. Morris"), Mr. Moses Powell ("Mr. Powell"), Mr. Clarence Wren ("Mr. Wren"), Mr. Larry Dillon ("Mr. Dillon"), and Mr. Monroe Wayne May ("Mr. May"), (collectively hereinafter referred to as "Co-workers"), were presented at trial. These men testified that they were longshoreman during Mr. Craft's tenure. Additionally, expert witnesses, Dr. Emily Cassidy ("Dr. Cassidy"), Dr. Eugene Mark ("Dr. Mark"), Dr. Willaim E. Longo ("Dr. Longo"), and Professor Gerald Markowitz ("Professor Markowitz"), a historian, testified at trial. Lastly, Tom Flanagan ("Mr.

Flanagan"), the president of James Flanagan Shipping Company, also testified.

At the conclusion of the trial, the jury was given a special verdict form, which was composed of eight (8) interrogatories related to Appellees' liability. In summary, the jury found, by a preponderance of evidence, that Mr. Craft was exposed to asbestos while employed by Appellees, that this exposure was a substantial contributing factor to Mr. Craft's development of mesothelioma, and that Appellees were negligent by not providing safeguards against such exposure during Mr. Craft's employment. The jury also awarded Mr. Craft the following: $ 1,000,000.00 for past & future physical pain and suffering; $ 250,000.00 for past & future medical pain and suffering; $ 250,000 for past & future physical disability; $ 100,000.00 for past & future loss of enjoyment of life; $ 360,000.00 for past medical expenses; and $ 1,000,000.00 for future medical expenses. The jury's award totaled $ 2,960,000.00. After considering the jury's verdict, the trial court rendered its judgment in favor of Mr. Craft. After a reduction for settled parties totaling $ 1,973,333.32, the trial court awarded Mr. Craft $ 986,666.68 plus judicial interest from the date of filing of the initial petition until the amount is paid by the Appellees.

Appellees, in response to this judgment, filed two JNOV motions. The trial court denied Appellees' JNOV motion as to the jury's negligence finding, but granted the Appellees' JNOV motion as to the jury's award for future medical expenses in the amount of $ 1,000,000.00. It is from this judgment that Appellees and Mr. Craft appeal.

DISCUSSION

General Damages

Mr. Craft asserts the jury abused its discretion in awarding him only $ 1,600.000.00 in general damages. We disagree.

There is no question that the abuse of discretion standard of review applies when an appellate court examines a factfinder's award of general damages. Gaunt v. Progressive Security Insurance Company , 2011-1094, p. 30 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1270 (citing Wainwright v. Fontenot , 2000-0492, p.6 (La. 10/17/00), 774 So.2d 70, 74 ). In Gaunt, this Court, relying on the Louisiana Supreme Court, stated:

The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages 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." Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1260 (La.1993). Moreover, before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. (Emphasis added.)

Id. (citing Coco v. Winston Indus., Inc. , 341 So.2d 332, 334 (La. 1977) ).

General damages are those which may not be fixed with pecuniary exactitude; instead, they "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." Duncan v. Kansas City So. Ry. Co. , 00-0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682 (quoting Keeth v. Dept. of Pub. Safety & Transp. , 618 So.2d 1154, 1160 (La.App. 2 Cir.1993) ). Vast discretion is accorded the trier of fact in fixing general damage awards. Id. (citing La. C.C. art. 2324.1 ; Hollenbeck v. Oceaneering Int., Inc. , 96-0377, p. 13 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172 ).

In the case presently, Mr. Craft argues the jury's award is grossly inadequate to compensate him for his pain and suffering and loss of enjoyment of life since his diagnosis. Mr. Craft testified that he enjoyed traveling with his wife, singing in the church choir, and performing lawn work at his home, activities he argues he can no longer enjoy because of mesothelioma. Mr. Craft's wife and Mr. Craft's daughter similarly testified that this disease has significantly impacted his enjoyment of life. Mr. Craft also testified that he has undergone invasive surgeries and other painful procedures to fight this disease.

While we acknowledge Mr. Craft has substantially suffered since his diagnosis, we do not find the jury abused its discretion. The jury awarded Mr. Craft $ 1,600,000.00 in general damages, which included $ 1,000,000.00 in past and future physical pain and suffering; $ 250,000.00 in past and future mental pain and suffering; $ 250,000.00 in past and future physical disability; $ 100,000.00 in past and future loss of enjoyment of life; and $ 360,000.00 in past medical expenses. The record indicates that Mr. Craft's medical bills at the time of trial totaled about $ 360,000.00. The record also supports that Mr. Craft has undergone several procedures and has continually received chemotherapy treatments since his diagnosis. In Louisiana, it is a well-established rule that, "[b]efore a Court of Appeal can disturb an award made by a [fact finder], the record must clearly reveal that the trier of fact abused its discretion in making its award. Scarberry v. Entergy Corp. , 2013-0214, p. 30 (La. App. 4 Cir. 2/19/14), 136 So.3d 194, 213-14. The jury, as the fact finder in this matter, allocated amounts it deemed appropriate for damages. (See Rando v. Anco Insulations Inc. , 2008-1163 (La. 5/22/09), 16 So.3d 1065 ; Egan v. Kaiser Aluminum & Chemical Corp. , 94-1939 (La. App. 4 cir. 5/22/96), 677 So.2d 1027 ).

Thus, we do not find that the jury abused its discretion when it awarded Mr. Craft $ 1,6000,000.00 in general damages and decline to disturb the jury's award.

JNOV

Appellees and Mr. Craft respectively contest the trial court's judgments on the JNOV motions filed by Appellees in this matter. Appellees argue that the trial court erred in denying its JNOV motion as it relates to the jury's negligence finding. Mr. Craft argues that the trial court improperly granted Appellees' JNOV motion as it relates to the jury's award of future medical expenses.

The Louisiana Supreme Court, in Davis v. Wal-Mart Stores, Inc. , set forth the appropriate standard of review for a Court of Appeal when reviewing a JNOV as follows:

The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.

2000-0445, p. 5 (La. 11/28/00), 774 So.2d 84, 89 (citing Anderson v. New Orleans Public Service, Inc. , 583 So.2d at 832 ).

When reviewing the trial court's findings of fact for manifest error, the issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was reasonable. Warner v. Collins , 2012-0773, p. 4 (La. App. 4 Cir. 12/12/12), 106 So.3d 693, 696 (citing In re Succession of Sporl , 2004-1373 (La. App. 4 Cir. 4/6/05), 900 So.2d 1054 ).

La. C.C.P. art. 1811 is the controlling article for the use of JNOV. While this article does not articulate the grounds upon which a JNOV can be granted, the Louisiana Supreme Court has established such criteria. Anderson v. New Orleans Public Service Inc. , 583 So.2d 829 (La. 1991). In Anderson , the Louisiana Supreme Court stated:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. (Emphasis added).

Anderson, 583 So.2d at 832.

We will first address Mr. Craft's assertion that the trial court erred in granting Appellees JNOV motion as it relates to the jury's award of future medical expenses. Then, we will address Appellees' arguments as it relates to the trial court's denial of its JNOV motion to the jury's negligence finding.

Future Medical Expenses

Mr. Craft argues that the trial court erred in granting Appellees' JNOV motion. In particular, Mr. Craft argues that medical experts testified that mesothelioma is an incurable cancer and will require him to receive chemotherapy treatments for the rest of his life.

Conversely, Appellees argue that the trial court properly granted the JNOV motion because Mr. Craft provided no evidence, such as testimony regarding the medical costs, frequency, or type of future medical treatment required, that supported the jury's award for future medical expenses. Appellees also argue the trial court improperly allowed the issue to be presented to the jury because of lack of evidence. We disagree.

In Gaunt , this Court stated that the "proper standard for the trial court's determination of whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expenses will be medically necessary." 2011-1094, p. 34, 92 So.3d at 1272. Further, this Court articulated that:

Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. If a fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper. (Emphasis added.)

Id. (citing Molony v. USAA Prop. & Cas. Ins. Co. , 97-1836 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220 ).

In the instant case, the jury heard testimony from medical experts, Dr. Cassidy and Dr. Mark. Both medical experts testified as to the severity of Mr. Craft's mesothelioma. When deposed, Dr. Cassidy, Mr. Craft's diagnosing physician, testified that Mr. Craft has an aggressive biphasic cell type that requires palliative care. Dr. Cassidy testified that palliative care is not treatment that serves to eradicate the disease, but is meant to keep the patient comfortable. Dr. Cassidy further testified that Mr. Craft will need on-going chemotherapy treatment until he passes away from the disease.

Dr. Mark, the pathologist who tested stains from Mr. Craft's pleural biopsy, echoed the assertion that Mr. Craft will need on-going treatment. When deposed, Dr. Mark explained that Mr. Craft has been diagnosed with diffuse malignant mesothelioma, an aggressive tumor which is strictly caused by exposure to asbestos. He further explained that, due to the risks of surgery, the only treatment for Mr. Craft is chemotherapy and radiotherapy, which he will need on an ongoing basis. He also explained that chemotherapy and radiotherapy are not cures because there is no cure for mesothelioma ; however, this treatment plan is utilized as an aide to provide some comfort to a patient.

Further, as noted above, Mr. Craft provided his medical expense summary totaling about $ 360,000.00. The medical expense summary detailed his treatments and procedures. He also testified that he had received between ten (10) to fifteen (15) chemotherapy treatments since his diagnosis and that his doctors advised that the treatments serve to help prolong his life. Based on these facts and pursuant to the standard articulated in Gaunt , we find that Mr. Craft proved, by a preponderance of evidence, that future medical expenses would be medically necessary. 2011-1094, p. 34, 92 So.3d at 1272.

Thus, we find that the jury correctly awarded Mr. Craft future medical damages, and that the trial court committed manifest error in granting Appellees' JNOV motion. Thus, we reverse the trial court's JNOV motion pertaining to that part of the verdict, and reinstate the jury's verdict in the amount of $ 1,000,000.00.

Negligence

On the issue of negligence, Appellees argue the trial court erred in denying its motion for JNOV. Appellees collectively argue that Mr. Craft presented insufficient evidence to establish that a legal duty was owed to him.

The Louisiana Supreme Court, in Rando v. Anco Insulations, Inc. , addressed the issue of negligence in an asbestos related case. 2008-1163 (La. 5/22/09), 16 So.3d 1065. In Rando , the plaintiff, a former pipe fitter, filed a lawsuit against his former employers asserting that he contracted mesothelioma from occupational exposure to asbestos. The trial court entered a judgment in favor of plaintiff, awarding a total of $ 2,800,000.00 in general damages. Both the First Circuit and the Louisiana Supreme Court affirmed the trial court. The defendants averred that the trial court erred in its liability finding because the plaintiff did not provide sufficient evidence to support such a finding. After employing the duty-risk analysis to make the liability determination, the Louisiana Supreme Court disagreed finding that the evidence supported the lower court's determinations that the defendants knew or should have known of dangers of asbestos at time of plaintiff's employment and found that the scope of defendants' duty extended to the plaintiff.

Similarly, here, the jury found that Mr. Craft was exposed to asbestos while employed by Appellees, that this exposure was a substantial contributing factor to Mr. Craft's development of mesothelioma, and that both Appellees were negligent by not providing safeguards against such exposure during Mr. Craft's employment. However, to contest this finding and buttress their liability argument, Appellees raise distinct arguments. To properly address each argument, we will refer to Appellees individually as Appellee-Flanagan and Appellee-Crowley for this part of the discussion only.

First, Appellee-Flanagan argues that there was no evidence or testimony presented at trial establishing that it knew or should have known of the effects of asbestos in the 1950s and 1970s; thus, asserting that Mr. Craft failed to establish a duty for stevedore companies in the 1960s and 1970s regarding handling asbestos. We find this argument fails.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. There is almost a universal duty on the part of the defendant in a negligence action to use reasonable care to avoid injury to another. Rando , 2008-1163, p. 27, 16 So.3d at 1086. In the realm of an employer/employee relationship, La. R.S. § 23:13 states, in pertinent part, that:

Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.

The Louisiana Supreme Court, in Rando , articulated that to establish whether an employer has a duty to protect an employee from exposure to asbestos depends on whether the employer knew or should have known of the dangers of asbestos exposure at the time of the employee's employment. Rando , 2008-1163, p. 29, 16 So.3d at 1087.

Here, Mr. Flanagan testified that the company's policies complied with all pertinent Louisiana laws, including the Louisiana Worker's Compensation Act, which included a provision for occupational diseases and identified asbestosis as a compensable disease in 1952. However, he averred that the company only imported cargo and coffee during Mr. Craft's tenure; thus, asserting that Mr. Craft did not come into contact with asbestos-containing products. However, when questioned as to the corporate documents to corroborate this assertion at trial, Mr. Flanagan testified that these records were damaged in a storm. He vehemently contended, however, that this assertion is based on the information shared by his father and Mr. Craft's deposition in another asbestos case. Notably, Mr. Flanagan acknowledged he was made aware of the effects of asbestos in the late 1960s and 1970s by his father.

Moreover, the jury heard testimony from Mr. Dillon, who testified that he worked regularly for New Orleans Stevedore during his tenure as a longshoreman. Mr. Dillon explained that he would unload and load different types of cargo, including large sacks containing "white powder", which he identified as asbestos. He explained that he was frequently exposed to high amounts of dust and likely unloaded sacks of white powder while employed by New Orleans Stevedore. "An appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. [W]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings..." Menard v. Lafayette Ins., Co. , 2009-1869, p. 15 (La. 3/16/10), 31 So.3d 996, 1007-8.

Appellee-Crowley makes similar contentions specifically asserting that during Mr. Craft's tenure with the company from 1953 until 1969, there is no evidence that it knew or should have known of the effects of asbestos. It argues that Mr. Craft did not provide any testimony that it violated any government regulations or industry standards, or that it did not act as a prudent stevedore. This argument also fails.

Contrary to Appellee-Crowley's assertions, Professor Markowitz, who was qualified as an expert in the field of history with a subspecialty in occupational health, public health, and environmental health, testified that that there were articles published in the early 20th century that addressed the dangers of asbestos, and by 1930 it was established that asbestos could cause disease or death to individuals who inhaled asbestos fibers. He testified that digests, such as the National Safety News published by the National Safety Council, released articles, as early as 1931, addressing the dangers of asbestos. He stated that these articles are housed in the library at the National Safety Council's headquarters, which is open to the public. His research also revealed that Delta Steamship Lines, Inc. ("Delta") maintained a membership with the National Safety Council Marine Section throughout the 1940s until 1960s, and a former president of Delta was an executive officer of the National Safety Council Marine Section from 1953 until 1955.

Based on these facts, we do not find that Appellees can affirmatively assert that neither did not know of the dangers of asbestos while Mr. Craft was in their respective employ.

Second, Appellees assert that the trial court erred in not excluding the testimony of Professor Markowitz. Each avers that Professor Markowitz, a historian, was not a qualified industry expert and did not testify as to what either knew or should have known regarding the dangers of asbestos. They contend that Professor Markowitz's testimony only confused and misled the jury.

A trial court has broad discretion in determining who should or should not be permitted to testify as an expert and whether expert testimony is admissible, and its judgment with respect to such matters will not be disturbed on appeal unless manifestly erroneous. Oddo v. Asbestos Corp. Ltd. , 2014-0004, pp. 24-25 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192, 1210. Here, Appellees filed a motion to exclude the testimony of Professor Markowitz, which the trial court denied. We find that the trial court properly conducted a Daubert hearing and did not commit manifest error by allowing the testimony of Professor Markowitz at trial.

Further, the record before this Court evidences that Mr. Craft was employed by Appellee-Flanagan from 1960 until 1988 and Appellee-Crowley from 1953 until 1969. During his career, Mr. Craft testified that he worked as a cargo handler and winch operator and either handled or worked in close proximity to other longshoreman who handled asbestos-containing products. He described how some of the burlap sacks would rip open and a "blue" substance would be released into the area. He also stated that he constantly inhaled dust from the cargo, and none of the stevedore companies ever warned him of the dangers of asbestos exposure or took steps to prevent or reduce such exposure. "Every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma." Oddo , 2014-0004, p. 24, 173 So.3d at 1209-10. Further, Mr. Craft's co-workers collectively testified that they were constantly exposed to asbestos products that they unloaded from the ships. All stated that they were provided masks to place over their mouths when handling this cargo; however, they contended that the masks provided to them were not sufficient and did not prevent the inhalation of the dust. They further affirmed that the stevedore companies did not provide any warnings against dangers of asbestos.

Moreover, Dr. Longo, who was qualified as a material science expert, opined that Mr. Craft's work as a longshoreman, along with his testimony, demonstrated that he was exposed to asbestos. He asserted that Mr. Craft's most prominent exposure was due to his handling of burlap bags that contained asbestos, which he opined was crocidolite, a blue fiber asbestos, based on Mr. Craft's testimony regarding "blue" substance escaping out of the burlap sacks he handled. He contended Mr. Craft's extended work days and hours exposed him to higher levels of asbestos. Also, Dr. Cassidy and Dr. Mark attributed Mr. Craft's asbestos exposure to his work as a longshoreman and opined that this exposure substantially increased his risk of developing mesothelioma. Both doctors also attributed this exposure as the medical cause for Mr. Craft's malignant mesothelioma.

A review of the totality of the evidence supports the jury's negligence finding. "If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse..." Oddo , 2014-0004, p. 30, 173 So.3d at 1212 (citing Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) ).

Accordingly, we find no manifest error in the trial court's denial of Appellees' JNOV motion and decline to disturb this finding.

CONCLUSION

For the foregoing reasons, we reverse the trial court's granting of Appellees JNOV motion as it relates to the jury's award of $ 1,000,000.00 for future medical expenses and reinstate the jury's award. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED, IN PART, AND REVERSED, IN PART

      Mr. Craft explained that, as a longshoreman, he would load and unload cargo from the ships that docked at the Port of New Orleans.

      La.C.C.P. art. 1811 pertinently states:
      Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days, exclusive of legal holidays, after the jury was discharged.

      Dr. Cassidy testified that Mr. Craft has an aggressive biphasic cell type called sarcomatoid cells. She testified that patients with these types of cells require more aggressive treatment.

      Dr. Cassidy testified that a surgical operation called extrapleural pneumonectomy is available to patients with mesothelioma. However, she explained this surgery is very rare and there are strict factors-such as age, the extent to which the disease has spread, and recovery risks-that surgeons consider in making eligibility determinations. She further explained that due to the severity of Mr. Craft's disease, his age, and other mitigating factors, this surgery was not a treatment option for him.

      Dr. Cassidy explained that the pleura is the inner lining of the chest wall where mesothelioma develops. A biopsy of this area is performed if there are concerns that plaque or nodularity in that area is malignant. The materials retrieved from this procedure are sent to a pathologist for evaluation.

      Asbestosis and mesothelioma both share asbestos as a causative agent. Rando , 2008-1163, p. 29, 16 So.3d at 1087.

      The record reflects that Mr. Craft provided a deposition in 2006, in which he testified that he did not recall handling asbestos products for any employers at the Port of New Orleans. During the trial for this matter, however, Mr. Craft testified that he made those assertions in 2006, because he was unsure whether he handled asbestos products. He explained that no one ever explained to him the type of products he handled.

      It should be noted, again, that New Orleans Stevedore was purchased by James J. Flanagan Shipping Corporation. However, at the time of Mr. Dillon and Mr. Craft's employment, the company was known as New Orleans Stevedore.

      Mr. Dillon worked as a longshoreman at the Port of New Orleans from 1974 until his retirement in 2004.

      Mr. Dillon testified that he could not recall whether he unloaded or loaded sacks of white powder while employed by Appellee-Flanagan; however, based the extent of his dust exposure, he surmised that he did unload and load sacks of white powder at some point while in their employ.

      Professor Markowitz testified that the National Safety Council was started in 1912 and served to provide members with information to protect their employees.

      It should be noted, again, that Delta Steamship Lines, Inc., was purchased by Crowley Marine Services, Inc. However, at the time of Mr. Craft's employment, the company was known as Delta Steamship Lines, Inc.

      Dr. Longo testified that this blue substance Mr. Craft described was likely crocidolite, which is one of the three types of asbestos used in all asbestos products. Dr. Cassidy testified that crocidolite is a blue fiber and is exponentially more carcinogenic than other asbestos fiber types.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    JEFFERSON PARISH SCHOOL BOARD v. TIMBRIAN LLC
    NO. 18-CA-349
    Court of Appeal of Louisiana, Fifth Circuit.
    May 9, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, JEFFERSON PARISH SCHOOL BOARD, Olden C. Toups, Jr., Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, TIMBRIAN, LLC, Scott L. Sternberg, Michael S. Finkelstein, Joseph R. Marriott, New Orleans,
    COUNSEL FOR INTERVENOR/APPELLEE, PARISH OF JEFFERSON, Michael G. Fanning, Guice A. Giambrone, III, Richard E. Gruner, Jr., Metairie
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   WICKER, J.

This appeal arises from a property dispute in Jefferson Parish, Louisiana. Appellant, TimBrian, L.L.C., challenges the granting of a July 2017 Motion for Summary Judgment in favor of Jefferson Parish, which summarily declared Jefferson Parish owner of a disputed piece of immovable property. For the following reasons, we reverse the district court's judgment granting summary judgment in favor of Jefferson Parish and affirm the district court's judgment denying TimBrian's Motion for Summary Judgment. This matter is remanded for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The parties to the instant appeal, TimBrian, L.L.C. ("TimBrian"), Jefferson Parish School Board ("the School Board"), and Jefferson Parish, have previously sought review from this Court regarding a different set of procedural issues arising in this case and stemming from the same basic facts reiterated below.

The property in dispute in this case ("the Property") has, for many years, been used by the School Board as a playground in the front of Metairie Academy for Advanced Studies located on Metairie Road in Jefferson Parish. TimBrian acquired the Property at a tax sale held by the Sheriff and Ex-Officio Tax Collector for Jefferson Parish in exchange for payment of $ 111,318.29, which included unpaid property taxes and other costs. A Tax Sale Certificate dated September 27, 2010, was recorded in the Jefferson Parish Clerk of Court's conveyance records on November 4, 2010.

TimBrian filed a Petition for Monition in the 24th Judicial District Court on May 19, 2014 to cure any defects in the tax sale and to quiet title to the Property. On August 13, 2014, the district court in that matter rendered a "Judgment Confirming and Homologating Sale," which perfected TimBrian's title to the Property. This judgment was recorded in the Jefferson Parish conveyance records on August 13, 2014.

On December 22, 2014, the School Board filed a "Petition to Annul Tax Sale," naming TimBrian as a defendant. The School Board alleged the Property, which TimBrian purchased at the tax sale, included portions of land owned by the School Board and further alleged the tax sale was an absolute nullity. The School Board prayed for a judgment declaring it owner of the portions of the Property described in the petition, as well as for judgment nullifying the tax sale, nullifying the judgment homologating the tax sale, cancelling the inscriptions of the tax sale, and homologating judgment from the conveyance records.

On February 10, 2015, TimBrian filed an answer, exceptions and a reconventional demand seeking damages against the School Board, and a declaratory judgment naming TimBrian as the owner of the Property. The School Board subsequently filed its first supplemental and amending petition to annul the tax sale on April 1, 2015, which added Jefferson Parish as a defendant to the proceedings and alleged that Jefferson Parish owned the Property. The School Board further alleged that it had enjoyed possession of the Property since 1939, and that it had acquired predial servitudes of use, passage and right of way through its possession, thereby, entitling it to notice of the tax sale. Thus, the School Board sought a declaratory judgment recognizing its predial servitudes. It also alleged that, as the true owner of the Property, Jefferson Parish was also entitled to notice of the tax sale proceedings and bore the responsibility to attack and seek to nullify the tax sale and judgment of homologation to protect the School Board's peaceful possession of the Property.

On June 4, 2015, the School Board filed a second supplemental and amending petition, which contained minor amendments to its prior allegations. In its answer to the amending petitions to annul the tax sale, TimBrian incorporated its reconventional demand, including an eviction claim alleged against the School Board. In response to the original, first amending and second amending petitions, Jefferson Parish filed an answer and cross-claim against TimBrian and the School Board seeking a declaratory judgment recognizing Jefferson Parish as the owner of the Property.

On May 23, 2016, Jefferson Parish filed a motion for summary judgment seeking a declaration recognizing it as owner of the Property and for judgment dismissing TimBrian's reconventional demand. The district court denied the motion as premature due to outstanding discovery issues. After completing additional discovery, Jefferson Parish and the School Board filed a motion to re-urge the previously filed summary judgment motion. In response, TimBrian filed an opposition and a cross-motion for summary judgment seeking dismissal of Jefferson Parish's cross-claim.

The district court heard oral argument on both summary judgment motions, and entered a judgment on July 21, 2017, granting Jefferson Parish's motion for summary judgment. In its judgment, the district court declared that "Jefferson Parish is the owner of the property at issue by dedication from Hypolite de Courval in the year 1837." The judgment also denied TimBrian's motion for summary judgment and further stated that "all reconventional demands of defendant TimBrian, LLC asserting ownership of the property at issue are hereby DISMISSED." The judgment did not address the claims alleged by the School Board against Jefferson Parish and TimBrian.

On July 31, 2017, Jefferson Parish, the School Board, and TimBrian filed a timely "Joint Consent Motion for New Trial" requesting that the district court amend the July 21, 2017 judgment to include a legal description of the Property. The district court granted the motion for new trial and amended the judgment on August 1, 2017. On August 31, 2017, TimBrian filed a motion for devolutive appeal, which the district court granted. On March 28, 2018, this Court dismissed TimBrian's appeal without prejudice and remanded it for further proceedings, finding that this Court lacked appellate jurisdiction over the matter because "the judgment declaring Jefferson Parish as the owner of the Property [was] not designated as a partial final judgment pursuant to La. C.C.P. art. 1915(B)."

On May 9, 2018, the parties filed a joint motion to have the amended July 21, 2017 judgment declared a partial final judgment pursuant to La. C.C.P. art. 1915(B)(1), which was granted on May 10, 2018. On May 16, 2018, TimBrian filed a motion for devolutive appeal.

It is from the amended July 21, 2017 judgment that TimBrian appeals.

ASSIGNMENTS OF ERROR

Appellant, TimBrian, sets forth the following assignments of error regarding the amended July 21, 2017 judgment:

1. The district court erred in granting Jefferson Parish and the School Board's Motion for Summary Judgment because the motion was unsupported by the law, facts or admissible, authenticated or credible evidence.
2. The district court erred in granting Jefferson Parish and School Board's Motion for Summary Judgment because the evidence submitted was not properly authenticated, cumulative, and did not comply with the Code of Evidence or La. C.C.P. 966.
3. The district court erred in denying TimBrian's Motion for Summary Judgment in light of the uncontested material facts, law, and authenticated evidence.
4. The district court erred in allowing the School Board to move for Summary Judgment for the Parish and submit a cumulative expert report in support.
5. The district court's judgment does not comply with the provisions of the Louisiana Constitution, Article VII, Section 25 (C) and is not effective.

We will address TimBrian's assignments of error in the following manner: 1) TimBrian's peremptory exception of no right of action or no cause of action, 2) the district court's grant of Jefferson Parish's Motion for Summary Judgment, and 3) the district court's denial of TimBrian's Motion for Summary Judgment.

LAW AND DISCUSSION

No Right of Action and No Cause of Action

In regard to TimBrian's exceptions of no right and no cause of action, TimBrian avers that the School Board judicially confessed that it does not own the Property and that no contract between Jefferson Parish and the School Board exists which would give the School Board a cause of action to enforce the potential property rights of Jefferson Parish. Therefore, TimBrian asserts that the School Board should be dismissed from the present appeal and, further, from the entire litigation. TimBrian asks that the School Board's brief, as well as its "1,300 pages of exhibits," be stricken from the record.

In opposition to TimBrian's exceptions of no cause of action and no right of action, the School Board asserts that although it is not the owner of the Property, it maintains a real right or property interest in the Property. The School Board asserts that it has maintained continuous and uninterrupted possession of the Property since 1939 and has used the Property "as part of the public school known as Metairie Academy, including as its playground, as walkways, for ingress and egress, and parking, as well as other uses." It further argues that TimBrian's exceptions of no cause of action and no right of action should have been raised in the district court and not on appeal.

In reply, TimBrian argues that the cause of action claimed by the School Board - enforcement of a real right - is not before this Court. Specifically, TimBrian argues that the School Board's claims for real rights may apply to whichever party is adjudicated the owner of the Property. Therefore, TimBrian avers the School Board cannot be awarded any relief and is not aggrieved by the Judgment; thus, the School Board should be dismissed from this proceeding.

Contrary to the School Board's assertion that TimBrian's exceptions of no right of action and no cause of action should have been raised at the district court level, an appellate court may, sua sponte , raise and consider the peremptory exceptions of no right of action and no cause of action. La. C.C.P. art. 927(B) ; Bayou Fleet P'ship v. Clulee , 13-934 (La. App. 5 Cir. 9/10/14), 150 So.3d 329, 333. An exception of no right of action and an exception of no cause of action differ in that an exception of no right of action focuses on whether the particular plaintiff has a right to bring the suit, while an exception of no cause of action focuses on whether the law provides a remedy against the particular defendant. Indus. Cos. v. Durbin , 02-0665 (La. 1/28/03), 837 So.2d 1207, 1213.

Generally, an action can only be brought by a person with a real and actual interest which he or she can assert. La. C.C.P. art. 681. The peremptory exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. Bayou Fleet P'ship , supra , citing Marks v. Third Dist. Volunteer Fire Dep't , 13-383 (La. App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101. The peremptory exception of no right of action tests whether the individual bringing an action has the capacity or legal interest in judicially enforcing the right asserted. Show-Me Const., LLC v. Wellington Specialty Ins. Co., 11-528 (La. App. 5 Cir. 12/29/11), 83 So.3d 1156, 1159. A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. Id. Thus, in an exception of no right of action, the court questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Boyer v. Stric-Lan Cos. Corp. , 04-872 (La. App. 3 Cir. 11/10/04), 888 So.2d 1037, 1041. Unlike the exception of no cause of action, evidence may be introduced in support of an exception of no right of action. Roubion Shoring Co., L.L.C. v. Crescent Shoring, L.L.C. , 16-540 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 926. An exception of no right of action is reviewed de novo . Wells v. Fandal , 13-620 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87.

On the other hand, a cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. DiLeo v. Hansen, 09-974 (La. App. 5 Cir. 6/29/10), 45 So.3d 1120, 1122-1123. The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. No evidence may be introduced to support or controvert the exception raising the objection of no cause of action, and for the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true. See La. C.C.P. art. 931, Show-Me Const., LLC v. supra .

In this case, although the School Board acknowledges that it is not the owner of the Property, it asserts that it has various property interests in the Property, including servitudes of use, passage, right of way, and usufruct resulting from its actual possession of the Property since 1939. Therefore, we find that the School Board has alleged a cause of action relating to property interests in the Property at issue and, thus, has a legal interest in the subject matter of the litigation. Accordingly, we overrule TimBrian's exceptions of no right of action and no cause of action.

Motions for Summary Judgment

In TimBrian's first and second assignments of error, it avers that the district court erred in granting summary judgment in favor of Jefferson Parish because its motion was unsupported by law, facts, and admissible evidence. In furtherance of its claim, TimBrian argues that Jefferson Parish failed to prove that the original owner, Hypolite de Courval, intended dedication of the Property to the Parish.

Appellate courts review a judgment granting a motion for summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Chauvin v. Shell Oil Co. , 16-609 (La. App. 5 Cir. 10/25/17), 231 So.3d 903, 907 ; citing Richthofen v. Medina , 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231,234, writ denied , 14-2514 (La. 3/13/15), 161 So.3d 639. The motion for summary judgment is granted if, after an opportunity for adequate discovery, the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). Pontchartrain Nat. Gas Sys., L.L.C. v. Tex. Brine Co., LLC , 18-606 (La. App. 1 Cir. 12/21/18), 2018 La. App. LEXIS 2572, 2018 WL 6718522.

Procedural Objections

Before turning to the merits of the district court's judgment, we first address an issue concerning TimBrian's objections to Jefferson Parish's experts Peter Title and Raymond Landry as raised in its Memorandum in Opposition to Motion for Summary Judgment. Under La. C.C.P. art. 966(D)(2), in ruling on a motion for summary judgment,

[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

A review of the record in the present case reveals that TimBrian, within its Memorandum in Opposition to [Jefferson Parish's] Motion for Summary Judgment, makes two specific objections to the expert reports filed by Jefferson Parish. First, TimBrian objected "to the entry of Peter Title's Report," arguing that Peter Title is a cumulative expert. In its second objection, TimBrian makes a "general objection" to the facts and conclusions in Mr. Landry's and Mr. Title's reports, specifically stating:

As the Parish Motion has no Statement of Facts or Uncontested Material Facts to specifically object to, TimBrian lodges its general objection to all those facts and conclusions in Mr. Landry and Mr. Title's reports which are not supported with authenticated documents properly filed in the record pursuant to Louisiana Code of Civil Procedure Art. 966.

Article 966(D)(2) expressly provides that the court must "specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider." Despite TimBrian's objections being properly raised in its reply memorandum, the record before us does not reflect that the district court ruled on the objections during the hearing on the summary judgment motions. Moreover, the trial judge, after taking the matter under advisement, issued a July 21, 2017 written judgment, which also does not address TimBrian's procedural objections properly raised pursuant to La. C.C.P. art. 966. Accordingly, we find that the trial judge erred in failing to rule on the properly raised procedural objections prior to ruling on the motions for summary judgment.

However, for the reasons discussed below, we find the error is of no moment under the facts of this case. We find that, even if we were to consider only the evidence presented by TimBrian in support of its motion for summary judgment, we find that TimBrian, as mover, failed to meet its burden of proof and further that a genuine issue of material fact exists in this case concerning the ownership and title to the property at issue.

The Merits

In summary judgments, the mover has the burden of establishing the absence of a genuine issue of material fact. La. C.C.P. art. 966(D)(1). A fact is "material" if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Kennedy v. Sheriff of East Baton Rouge , 05-1418, p. 26 (La. 7/10/06), 935 So.2d 669, 687, citing Champagne v. Ward , 03-3211, p.5 (La. 1/19/05), 893 So.2d 773, 777. Thus, a material fact is one that would matter on the trial on the merits. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p.27 (La. 7/5/94), 639 So.2d 730, 751. An issue is genuine if reasonable persons could disagree. Murphy v. L & L Marine Transp. , 97-33 (La. App. 5 Cir. 5/28/97), 695 So.2d 1045, 1047. When a court is charged with determining whether an issue is "genuine," it cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Id.

In the present case, Jefferson Parish and TimBrian have each asserted claims of ownership in the Property which is situated between the southern boundary of Square 16 of the Metairieville Subdivision and the northern boundary of Metairie Road. Jefferson Parish asserts the original owner, Hypolite de Courval, donated the Property for public use as a right of way in 1837 through his donation of land consisting of "then North Metairie Road." Therefore, Jefferson Parish argues that TimBrian has "no claim to either the ownership of this public property, nor any rights therein other than as a member of the general public." TimBrian asserts that a North Metairie Road never existed, and if it did, it was "never formally or irrevocably dedicated to the public use as a road." Therefore, TimBrian argues that it owns the Property because it purchased the Property, which was assessed in the name of Hypolite de Courval, at a tax sale for $ 111,318.29.

In support of its motion for summary judgment, TimBrian attached several documents, most pertinently: the affidavit of Charles Stern, Jr., who concluded by affidavit that the Property at issue was never dedicated to the public in 1837 as asserted by Jefferson Parish and that Jefferson Parish does not own the Property; the affidavit of William Reeves, Ph.D., who stated that there is no reliable historical evidence that any "North" Metairie Road ever existed; transcript excerpts from the deposition of Mr. Raymond Landry, Jefferson Parish's expert, in which he concluded that North Metairie Road existed and that Jefferson Parish owned the property at issue; and a 2015 "Act of Deposit" filed by Jefferson Parish into public records in which Jefferson Parish declared that it owned a portion of Metairieville Subdivision as a result of an 1837 dedication by Hypolite de Courval to Jefferson Parish. In its memorandum, TimBrian also recognized a difference in expert opinions as it relates to the issue of dedication stating that, "Mr. Title, Mr. Landry and Mr. Stern differ as to whether or not the 1837 Act of Deposit by de Courval consists of a formal, statutory or implied dedication."

Upon review of the evidence filed on behalf of TimBrian alone, we find there are genuine issues of fact regarding the existence of a North Metairie Road and ownership or dedication of the Property. Therefore, we find that the district court erred in granting Jefferson Parish's Motion for Summary Judgment in favor of Jefferson Parish.

In sum, the record before us presents conflicting arguments regarding material issues of fact - the validity of the tax sale, Jefferson Parish's role in the tax sale proceedings, the existence of a North Metairie Road, and the possible donation of the Property to Jefferson Parish. Therefore, we find that issues of material fact preclude summary judgment at this time. Consequently, we find that the district court did not err in denying TimBrian's Motion for Summary Judgment.

In light of this Court's findings, a discussion as to the remaining assignments of error raised by TimBrian is moot.

CONCLUSION

For the aforementioned reasons, we reverse the district court's judgment granting summary judgment in favor of Jefferson Parish, affirm the district court's judgment denying summary judgment in favor of TimBrian, and remand this matter to the district court for further proceedings consistent with this opinion.

REVERSED IN PART; AFFIRMED IN PART; REMANDED

      The purported members of TimBrian, L.L.C. are Timothy Deano and Brian Melius.

      See Jefferson Par. Sch. Bd. v. TimBrian, LLC , 17-668 (La. App. 5 Cir. 3/28/18), 243 So.3d 749.

      The legal description of the property is:
      THAT CERTAIN PIECE OR PORTION OF GROUND IN JEFFERSON PARISH, measuring 218.92 feet on Carrollton Avenue, by 409.37 feet on Metairie Road, by 146.68 feet on Lake Avenue, by 480.98 feet in the rear, containing approximately 53,160 square feet, abutting Square 16 of the Metairieville Subdivision, in Metairie, Louisiana.

      Among the amendments made by the School Board in its second supplemental and amending petition is a claim that TimBrian made an offer to the School Board to purchase the Property from TimBrian in a letter dated August 14, 2014; however, in its petition, the School Board asserts that TimBrian refused to sell the Property at fair market value and further wanted the School Board to enter into a short-term lease of one year with TimBrian. Thus, the School Board asserted that the actions of TimBrian interfered with its right to exercise the real rights associated with existing servitudes on the Property and its possession and use "which has been acknowledged by the true owner, the Parish of Jefferson."

      The July 21, 2017 judgment was a partial summary judgment which only addressed the issue of ownership and did not result in the termination of litigation between TimBrian, the School Board, and Jefferson Parish who all assert other claims for relief outside the declaration of ownership. In relevant part, the July judgment granted Jefferson Parish's motion for summary judgment holding that "Jefferson Parish is the owner of the property at issue by dedication from Hypolite de Courval in the year 1837." The judgment also denied TimBrian's motion holding "that all reconventional demands of defendant TimBrian, LLC asserting ownership of the property at issue are hereby DISMISSED." Thus, the July 21, 2017 judgment was a partial summary judgment that did not address any of the claims made by the School Board including its claim of predial servitude rights, or any claims made by TimBrian such as reimbursement of the $ 111,318.29 it paid at the tax sale, or Jefferson Parish's ownership interest in the Property.

      TimBrian raises the peremptory exceptions of no cause of action and no right of action for the first time on appeal.

      We need not consider the procedural objections under the evidence presented in this case. However, we do not opine on the appropriate appellate course of action when reviewing a case in which the trial judge failed to rule on a mover's procedural objection when the mover's evidence, filed in support of its own motion for summary judgment, satisfies its burden to shift the burden to the non-mover under La. C.C.P. art. 966.


author: WINDHORST, J.

text:
    STATE of Louisiana v. Glenn LAWRENCE
    NO. 18-KA-371
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, GLENN LAWRENCE, Glenn Lawrence, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

On appeal, defendant's appointed appellate counsel filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. Defendant, Glenn Lawrence, filed a pro se supplemental brief arguing four assignments of error. For the reasons that follow, we affirm defendant's conviction, vacate defendant's habitual offender sentence, and remand for resentencing as provided herein. We further reserve defendant's right to withdraw his second felony offender stipulation upon the trial court's advice of the limitation on parole to be imposed at sentencing. We also grant appellate counsel's motion to withdraw as attorney of record.

Procedural History

On April 14, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Glenn Lawrence, with possession with intent to distribute MDMA, in violation of La. R.S. 40:966 A. On September 30, 2008, defendant pled not guilty.

On May 26, 2016, defendant withdrew his plea of not guilty and pled guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for fifteen years with the first five years without the benefit of probation, parole, or suspension of sentence. The trial court ordered defendant's sentence to run concurrent with his sentences in case numbers 14-3654, 15-2280, 16-0184 and with "parole time" in case numbers 95-5681, 95-5900, and 95-6175.

On the same day, the State filed a habitual offender bill of information alleging defendant to be a second-felony offender, to which defendant stipulated. The trial court vacated the original sentence and resentenced defendant under the habitual offender statute to imprisonment at hard labor for fifteen years without the benefit of probation or suspension of sentence. The trial court ordered defendant's enhanced sentence to run concurrent with his sentences in case numbers 14-3654, 15-2280, 16-0184 and "parole time" in case numbers 95-5681, 95-5900, and 95-6175.

On May 23, 2018, defendant filed a "Notice of Intent to Appeal and 30 Day Extension to File." The trial court granted defendant an out-of-time appeal. This appeal followed.

Facts

Because defendant pled guilty, the underlying facts were not fully developed at a trial. A factual basis was not provided at the guilty plea proceeding, therefore, the facts have been gleaned from the bill of information which provided that on or about March 26, 2008, in Jefferson Parish, defendant violated La. R.S. 40:966 A "in that he did knowingly and intentionally possess with intent to distribute a controlled dangerous substance, to wit: MDMA."

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-1111, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. Id.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. Defendant's counsel asserts that after a conscientious and thorough review of the trial court record, he could find no non-frivolous issues to raise on appeal. Appellate counsel contends that defendant pled guilty and was sentenced pursuant to a counseled plea agreement and no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). He asserts that defendant entered an unqualified guilty plea waiving all non-jurisdictional defects. Appellate counsel indicates that defendant did not object to (1) the charged offense during the plea proceeding; (2) the trial court's acceptance of the guilty plea; or (3) the sentence agreed upon and imposed. Therefore, he asserts that defendant waived his right to now seek review on direct appeal. Appellate counsel also contends that the sentence imposed was in conformity with the plea agreement, and thus, defendant is precluded from raising a claim of excessiveness on appeal. He further asserts that the plea agreement was "somewhat advantageous" to defendant in that he did not receive the maximum sentence, and the trial court did not order any of his sentences to run consecutively. Defendant's appellate counsel filed a motion requesting permission to withdraw as attorney of record.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. However, we find there are issues regarding sentencing and the voluntariness of the plea agreement which will be discussed herein.

The record reveals no constitutional infirmities or irregularities in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charge against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Defendant was informed of the minimum and maximum sentence range of the charged offense and the actual sentence that would be imposed on him.

Defendant also acknowledged that he had not been forced, threatened, or coerced into entering his guilty plea. Defendant was informed that his guilty plea could be used against him if he was convicted of a subsequent offense. After the colloquy with defendant, the trial court accepted defendant's plea as knowing, intelligent, free, and voluntarily made.

With respect to defendant's stipulation to the habitual offender bill of information, the record reveals the following. Both the waiver of rights form and the transcript of the habitual offender proceeding reflect that defendant was advised of his right to a hearing at which the State would have to prove his habitual offender status; of his right to remain silent throughout the hearing; of the potential sentencing range as a second-felony offender; and the actual sentence that would be imposed. However, defendant was incorrectly advised about the statutory restrictions as discussed below. Defendant indicated in the waiver of rights form and during the colloquy that he had not been forced, coerced, or threatened into stipulating to the habitual offender bill.

The trial court accepted the stipulation as being knowingly, intelligently, freely, and voluntarily made by defendant. A stipulation to a habitual offender bill bars a defendant from asserting on appeal that the State failed to produce sufficient proof at the habitual offender bill hearing. See State v. Crawford, 14-364 (La. App. 5 Cir. 12/23/14), 166 So.3d 1009, 1019.

Defendant's sentences, including his enhanced sentence, were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 04/11/07), 958 So.2d 36, 46. State v. Augustine, 14-747 (La. App. 5 Cir. 05/14/15), 170 So.3d 1123, 1128. Additionally, La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams, 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied, 13-109 (La. 06/21/13), 118 So.3d 406. Nevertheless, defendant's sentences fall within the sentencing range prescribed by the statute. See La. R.S. 40:966 A. Moreover, defendant's plea agreement was beneficial to him because he received a mid-range sentence on his original sentence and the minimum sentence for his enhanced sentence, which was to be served concurrently with the other cases defendant pled guilty to on that day and concurrent with his "parole time" in three cases.

A review of the record reveals that there may be an issue regarding the voluntariness of defendant's stipulation to the habitual offender bill of information because the trial court misinformed defendant of his right to parole eligibility and the record is insufficient to determine if defendant relied on this misinformation in deciding to plead guilty to the habitual offender bill of information.

The transcript shows that the trial court did not restrict parole as required by the statute for at least the first five years of defendant's enhanced sentence, or correctly advise defendant with regard to the limitation on parole to be imposed. The transcript reflects that the trial court correctly informed defendant before he stipulated to the habitual offender bill of information that the sentencing range as a habitual offender was fifteen to sixty years at hard labor without benefit of probation or suspension of sentence. However, the trial court misinformed defendant when it additionally stated to defendant "you're always parole eligible." The trial court stated that defendant would receive a sentence of fifteen years at hard labor without benefit of probation or suspension of sentence, to which defendant was sentenced. The waiver of rights form reflects that the sentence would be fifteen years in the "DOC" without benefit of probation or suspension of sentence, without mention of the limitation on parole. The uniform commitment order (UCO), however, reflects that fifteen years of the enhanced sentence would be served without benefit of probation or suspension of sentence and that the first five years of the sentence would be served without benefit of parole, probation, or suspension of sentence.

La. R.S. 40:966 B(2), possession with intent to distribute MDMA, provides for a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence. A defendant's sentence under the Habitual Offender Law, La. R.S. 15:529.1, is determined by the sentencing provisions of both the underlying crime and the Habitual Offender Law. State v. Holmes, 12-351 (La. App. 5 Cir. 12/11/12), 106 So.3d 1076, 1081-82, writ denied, 13-86 (La. 06/14/13), 118 So.3d 1080. While defendant was sentenced pursuant to La. R.S. 15:529.1 as a second-felony offender to fifteen years imprisonment without benefit of probation or suspension of sentence, the trial court did not order that at least five years of defendant's sentence is to be served without benefit of parole.

Although La. R.S. 15:301.1 typically obviates the need to correct the sentence, where the sentencing provision gives the trial court discretion as to the number of years imposed to be served without benefits, the reviewing court should vacate the illegally lenient sentence and remand for resentencing. Because La. R.S. 40:966 B(2) provides that "at least five years" of the sentence shall be served without benefit of probation, parole, or suspension of sentence, we vacate defendant's enhanced sentence and remand for resentencing, including advising defendant of and specifying at sentencing that portion of the sentence to be served without benefit of parole. See State v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13), 128 So.3d 515, 534, writ denied, 13-2793 (La. 05/16/14), 139 So.3d 1024. We further reserve defendant's right to withdraw his second-felony offender stipulation since, as discussed above, the trial court misinformed defendant that he would "always" be parole eligible, which may affect the voluntariness of defendant's stipulation to the habitual offender bill of information.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel's assertion, except for the sentencing issue discussed herein, appellate counsel's motion to withdraw as attorney of record is granted.

Pro se assignments of error

In his first pro se assignment of error, defendant contends that his original request in his "Notice of Intent to Appeal & 30 Day Extension to File" was "ignored and overlooked" by the State and his appointed counsel. In that pleading, he contends that he stated that (1) there were specific errors made during the sentencing phase that he planned to challenge; (2) he needed an extension of time because he was transferred to numerous holding facilities and his property was lost or destroyed; and (3) his research abilities were severely prejudiced by his inability to afford private counsel and by the lack of meaningful assistance provided by other offenders. Defendant asserts that the fact that his appellate counsel completely ignored the primary subject matter of his original filing was "alarming" at best and at worst was an example of a failed Strickland test. Defendant contends that neither counsel took the time to read his original filing.

The record reflects that defendant filed his pleading on May 23, 2018, wherein he stated that (1) he was preparing to file an application for post-conviction relief ("APCR"); (2) there were errors made during his case; (3) his request to proceed was timely filed; (4) he wanted an extension of time because he could not afford counsel to represent him or to file proper pleadings for him; (5) he had been transferred to numerous facilities and had lost property consisting of legal papers; and (6) he was without a fully functioning law library at his current facility. On May 25, 2018, the trial court stated that the law provided that a defendant may request an out-of-time appeal by filing an APCR within two years after his conviction and sentence have become final pursuant to La. C.Cr.P. art. 930.8 A, that defendant was within the time limit for seeking an out-of-time appeal, and that the court would construe his application as such. The trial court granted defendant an out-of-time appeal and assigned the Louisiana Appellate Project to represent him in this appeal.

Defendant cannot seek post-conviction relief if he has not yet first filed an appeal. Pursuant to La. C.Cr.P. art. 924.1, an application for post-conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending. See State v. Singleton, 03-1307 (La. App. 5 Cir. 03/30/04), 871 So.2d 596, 599. The trial court granted defendant an out-of-time appeal and assigned the Louisiana Appellate Project to represent him. The Louisiana Appellate Project, in turn, filed an Anders brief because it could find no non-frivolous issues to raise on appeal. Defendant was notified of the filing of this Anders brief and of his ability to file his own supplemental brief. Defendant filed a pro se supplemental brief raising four assignments of error. After his appeal has been decided, defendant may file an APCR pursuant to La. C.Cr.P. art. 930.8.

In his second pro se assignment of error, defendant contends that newly discovered evidence in the record and in affidavits, only recently available to him, warranted an extension of time to file his APCR. Defendant argues that upon receiving a copy of the record, he was able to discover many issues that should have been addressed either immediately after his appointed trial counsel received the file or immediately after counsel's initial interview. He contends that these issues include but are not limited to the State withholding exculpatory evidence, conflicting witness reports, officers' integrity being called into question, and witnesses recanting testimony. Defendant asserts that he also has newly discovered evidence in the form of affidavits that is exculpatory. He argues that he should be given the opportunity to present this evidence to the trial court and to attack his conviction through an APCR.

Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 07/27/10), 47 So.3d 455, 459. A valid guilty plea waives the defendant's right to question the merits of the State's case. State v. Floyd, 08-746 (La. App. 5 Cir. 01/13/09), 7 So.3d 682, 688, writ denied, 09-0764 (La. 01/29/10), 25 So.3d 824 (citing State. v. Bourgeois, 406 So.2d 550 (La. 1981) ). As discussed above, a review of the record reveals no constitutional infirmity in defendant's guilty plea.

It appears defendant is arguing, in part, that his trial counsel was ineffective. A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. State v. Francois, 13-616 (La. App. 5 Cir. 01/31/14), 134 So.3d 42, 58, writ denied, 14-431 (La. 09/26/14), 149 So.3d 261. Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the defendant proves: (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 09/23/16), 199 So.3d 1140, 1141.

For claims like defendant's that counsel's ineffective assistance rendered a guilty plea invalid, the Strickland analysis under the first deficiency prong remains unchanged, whereas under the second prejudice prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154, 1157 (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) ).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-67. But when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. at 1067. If, on the other hand, the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

In this case, the record is insufficient to fully consider defendant's claim that his trial counsel was ineffective. Based on the limited record, we find defendant's allegations of ineffective assistance of counsel cannot be properly reviewed here, and should be raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if warranted under the post-conviction relief statutory procedure, and defendant can present evidence to support his allegations. See State v. Stiller, supra ; State v. Kron, 07-1024 (La. App. 5 Cir. 03/25/08), 983 So.2d 117.

It also appears that defendant is attempting to argue, for the first time on appeal, that he should be allowed to withdraw his guilty plea based on newly discovered evidence.

In State v. Alfonso, 496 So.2d 1218 (La. App. 5 Cir. 1986), writ denied, 501 So.2d 206 (La. 1987), the defendant filed a brief stating that after pleading guilty to two counts of second degree battery, he married the victim who recanted her testimony. The defendant also stated that he had several witnesses who would testify as to his whereabouts on the date of one of the incidents. This Court found that the defendant was attempting to argue a motion to withdraw a guilty plea based on newly discovered evidence for the first time on appeal. It stated that a new basis for an objection could not be raised for the first time on appeal. This Court declined to address this new issue, noting that it may be more properly addressed by a motion for new trial filed in the trial court following the appeal or by an application for post-conviction relief. Id. at 1220.

In State v. Jenkins, 419 So.2d 463 (La. 1982), the defendant pled guilty to two counts of distribution of marijuana. On appeal, the defendant argued that the trial court erred in denying his motion for a new trial based on the discovery of new evidence. The Supreme Court found that since the defendant pled guilty, a motion for new trial was inappropriate. The Supreme Court held, however, that the defendant's allegations should not be disregarded and would be treated as if presented on a motion to withdraw a guilty plea. The Supreme Court found that La. C.Cr.P. art. 559 allowed the court to permit a withdrawal of a guilty plea at any time prior to sentence and that the motion was filed in advance of sentence. It ultimately concluded that the trial court did not abuse its discretion in denying the motion. Id. at 466.

Based on the foregoing, we find the record is insufficient for this Court to address this claim. Therefore, defendant should file an application for post-conviction relief in the trial court following the appeal to raise this claim, if warranted.

In his third pro se assignment of error, defendant contends that appointed appellate counsel failed to articulate his primary issue for appeal and therefore, should not be allowed to withdraw. Defendant argues that appointed counsel filed a motion to withdraw in accordance with Anders "following what could have only been the most superficial of perusals of the appellate review record." He states that appointed counsel could not have thoroughly read or reviewed his "Notice of Intent to Appeal and 30 Day Extension to File" as counsel failed to articulate his "primary issues" which are "wholly relevant, pertinent and non-frivolous."

Appellate counsel filed an Anders brief because he could not find any non-frivolous issues to raise on appeal. Defendant was given the opportunity to and did file his own supplemental brief, raising and arguing issues he believes are relevant. For the reasons previously discussed, appointed appellate counsel's motion to withdraw as attorney of record is granted.

In his fourth pro se assignment of error, contrary to appointed counsel's representations in the Anders brief, defendant contends that he did not plead guilty due to any actual guilt. Defendant asserts that in appellate counsel's brief, counsel claims that defendant indicated during the colloquy that he was pleading guilty because he was in fact guilty. He contends that the record shows that the trial court never asked him if he was pleading guilty to the charge because he was guilty. Defendant maintains that this specific claim made by counsel is inaccurate and should be stricken from appointed counsel's brief.

A review of the record shows that while the trial court did not specifically ask defendant if he was guilty, defendant pled guilty to the charged offense. Defendant did not plead guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and did not state the he was pleading guilty because he believed it was in his "best interest" to plead guilty, nor did he maintain his innocence in any manner or to any extent. We find this assignment to be without merit.

Errors Patent Discussion

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals that there are no errors patent requiring corrective action other than the error patent regarding statutory restrictions as previously discussed above.

Conclusion

For the reasons stated herein, we affirm defendant's conviction, vacate defendant's habitual offender sentence, and remand for resentencing as provided herein. We further reserve defendant's right to withdraw his second felony offender stipulation upon the trial court's advice of the limitation on parole to be imposed at sentencing. We also grant appellate counsel's motion to withdraw as attorney of record.

CONVICTION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING;

MOTION TO WITHDRAW GRANTED

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      On May 26, 2016, defendant also entered a guilty plea and was sentenced in district court case number 15-2280. Defendant appealed his guilty plea in 15-2280, which is appeal number 18-KA-372.

      In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      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 Billard v. Prince, 2013 WL 3776341, *15 ; State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La. 1982) ; Lockhart, supra. A plea must be "voluntary" and not induced by any misrepresentation or unfulfilled promises. United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) ; McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir. 1980) ("[W]hen a defendant pleads guilty on the basis of a promise by his defense attorney or the prosecutor, whether or not such promise is fulfillable, breach of that promise taints the voluntariness of his plea.") In this case, defendant has not specifically claimed that his stipulation as a second-felony offender was induced by the trial court's statement that he was "always parole eligible." At the time of the stipulation, defendant signed the habitual offender waiver of rights form in which he confirmed that he was not forced, coerced, or threatened to enter the guilty plea, and the trial court found that he understood his rights at the hearing.

      Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L Ed.2d 674 (1984).

      Defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq. , in order to receive such a hearing.