author: SAVOIE, Judge.

text:
    King CHARLES, et al. v. SAFEWAY INS. CO. OF LOUISIANA, et al.
    18-740
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 2019
    Gregory John Laborde, Daigle Rayburn LLC, P. O. Box 3667, Lafayette, LA 70502-3667, (337) 234-7000, COUNSEL FOR DEFENDANTS/APPELLEES: Charles Bertrand, Curtis Narcisse
    Scott F. Higgins, Laborde Earles Law Firm, LLC, P. O. Box 80098, Lafayette, LA 70598-0098, (337) 261-2617, COUNSEL FOR PLAINTIFFS/APPELLEES: King Charles, Patricia Charles, Patricia Charles, o/b/o Katlyn Charles, Patricia Charles, o/b/o Kevin Charles
    Holli K. Yandle, Tracy L. Oakley, W. Brett Cain, Michael W. Landry, 400 E. Kaliste Saloom Rd., Ste. 4300 (70508), P. O. Box 92807, Lafayette, LA 70509, (877) 323-8040, COUNSEL FOR DEFENDANT/APPELLANT: Safeway Insurance Company of Louisiana
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   SAVOIE, Judge.

Defendant Safeway Insurance Company of Louisiana, Inc. (Safeway) appeals a judgment rendered in favor of Plaintiffs finding that a policy of insurance issued by Safeway afforded coverage for the Plaintiffs' damages up to the policy limits. Plaintiffs answered the appeal seeking an increase in the total damages awarded. For the following reasons we reverse the judgment in part, affirm the judgment in part, and dismiss Plaintiffs' claims against Safeway.

PROCEDURAL AND FACTUAL BACKGROUND

This case arises out of an auto accident between Plaintiff, King Charles, and Defendant, Curtis Bernard, that occurred on October 2, 2014, in Iberia Parish. Mr. Bernard, the son of Curtis Narcisse, was driving his father's 1999 Mitsubishi Gallant. Shortly before the accident, an Iberia Parish Sherriff's deputy, Philipp Early, attempted to pull Mr. Bernard over for a broken taillight. However, Mr. Bernard fled from the officer, and a high-speed chase ensued. Mr. Bernard's vehicle ultimately jumped over the railroad tracks and collided with the rear of Mr. Charle's vehicle, which was stopped at a stop sign at an intersection. The two vehicles then crossed the intersection and spun into a third vehicle, which caught fire. Mr. Bernard was arrested and charged with various crimes and traffic violations, and he ultimately pled guilty to aggravated obstruction of a public highway and possession of marijuana.

On June 11, 2015, Mr. Charles and his wife Patricia, individually, and on behalf of their two minor children, filed a petition for damages naming as defendants Mr. Narcisse, who was the owner of the 1999 Mitsubishi Gallant; Safeway, who was Mr. Narcisse's alleged liability insurer; Iberia Parish Sheriff's Department; and Deputy Early.

On July 6, 2015, Mr. Charles filed a First Supplemental and Amending Petition for Damages, this time naming as defendants, Mr. Bernard, Safeway, Deputy Early, and Sherriff Louis Ackal in his capacity as Sherriff of Iberia Parish. Deputy Early and Sherriff Ackal were eventually dismissed prior to trial.

In its Answer, Safeway asserted as a defense to coverage (1) material misrepresentations made by Mr. Narcisse on his insurance application, including his failure to list or disclose Mr. Bernard as a resident of his household and an unlicensed driver, and (2) the intentional and criminal acts exclusions found in the policy.

On November 23, 2015, Plaintiffs filed a motion seeking a summary judgment regarding Safeway's liability. On March 22, 2016, the trial court granted the motion in part, finding only that Mr. Narcisse had given Mr. Bernard permission to drive the 1999 Mitsubishi Gallant at the time of the accident.

On September 30, 2016, Safeway filed a motion seeking summary judgment dismissal of Plaintiffs' claims, alleging that there was no coverage because the damages caused by Mr. Bernard's intentional acts and commission of crimes were excluded from coverage under the policy. The motion was subsequently denied, and Safeway's application to this court for supervisory writs was also denied. Charles v. Safeway Ins. Co. of La. , 17-280 (La.App. 3 Cir. 5/25/17)(unpublished opinion).

On August 31, 2017, Plaintiffs and Safeway filed a joint stipulation agreeing that (1) Mr. Narcisse was not at fault, and (2) the amount of Plaintiffs' damages did not exceed the amount required for trial by jury under La.Code Civ.P. art. 1732.

A bench trial was held April 30, 2018. Thereafter, the trial court rendered a Judgment With Reasons, wherein it strictly construed the criminal acts exclusion in the Safeway policy and found that it did not apply because Mr. Bernard "committed a traffic violation which led to the flight from an officer[.]" The trial court also rejected Safeway's material misrepresentation defense, finding that Mr. Narcisse did not intentionally fail to disclose that his son lived with him. Ultimately, the trial court found Mr. Bernard solely at fault for the subject accident and awarded Mr. Charles $ 35,000 in damages, plus judicial interest. It further awarded Mrs. Charles $ 7,000 for loss of consortium, as well as $ 1,000 in damages for loss of consortium to each of the parties' two children. It ruled that Safeway was liable for these damages up to the coverage limits.

Safeway appeals. It asserts the following as assignments of error:

1. The trial court committed manifest error when it failed to find that the Intentional Act Exclusion contained in the Safeway... policy applied when Curtis Bernard intentionally drove in a reckless and careless manner for which acts both bodily injury and other damages could reasonably be expected to result.
2. The trial court committed manifest error when it failed to find that the first Criminal Act Exclusion contained in the Safeway ... policy of insurance applied when Curtis Bernard drove in a criminally negligent manner for which acts both bodily injury and other damages could reasonably be expected to result.
3. The trial court committed manifest error when it failed to find that the second Criminal Act Exclusion contained in the Safeway ... policy of insurance applied when Curtis Bernard operated a motor vehicle in the commission of a crime and/or flight from a crime from which both bodily injury and other damages resulted.
4. The trial court committed manifest error when it failed to find that Curtis Narcisse misrepresented information material in his application for insurance submitted to Safeway ... such that the policy of liability insurance issued by Safeway ... is void ab initio and would not provide coverage for the accident.

Plaintiffs answered Safeway's appeal arguing that "the [j]udgment of the [t]rial [c]ourt should be modified to increase the amount of general and special damages awarded to King Charles from $ 35,000.00 to $ 50,000.00, plus judicial interest."

ANALYSIS

Safeway's Appeal

In its first three assignments of error, Safeway challenges the trial court's finding that the intentional and criminal acts exclusions in the policy did not apply to the instant facts.

As stated by the Louisiana Supreme Court in Rosell v. ESCO , 549 So.2d 840, 844 (La.1989) (internal citations omitted):

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but 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 even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

We further keep in the mind the following principles when reviewing the insurance policy at issue:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The judiciary's role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract.
....
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer's obligation are strictly construed against the insurer....
If the policy wording at issue is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms.

Cadwallader v. Allstate Ins. Co , 02-1637, pp. 3-4 (La. 6/27/03), 848 So.2d 577, 580 (internal citations omitted).

The policy provisions Safeway relies upon state that the policy does not apply

(b) to bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. The exclusion applies even if,
....
(2) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or
(3) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.
....
(n) to bodily injury or property damage arising out of the ownership, maintenance or use of any automobile while being operated or used in the preparation to commit a crime, commission of a crime and/or flight from a crime, other than a traffic violation, regardless of whether or not such insured person is actually charged with, or convicted of a crime.

Safeway argues that the trial court was manifestly erroneous in failing to conclude the intentional and criminal acts exclusion in paragraph (b) above did not preclude coverage because Mr. Bernard intentionally chose to flee from the officer, was charged with related crimes, and the damages caused were reasonably expected to result from his intentional and criminal actions. Safeway also argues that coverage is precluded under paragraph (n) above because the damages at issue were incurred while Mr. Bernard was committing a crime other than a traffic violation. It challenges the trial court's finding that Mr. Bernard "committed a traffic violation which led to the flight from an officer" and therefore the exclusion was not applicable.

We first focus on policy exclusion (n), which excludes from coverage damages arising from the use of an automobile during the commission of certain crimes, "other than a traffic violation."

In Safeway Ins. Co. of Louisiana v. Gardner , 15-696, p. 5 (La.App. 5 Cir. 4/27/16), 191 So.3d 684, 687, the court reviewed a similar policy exclusion for "any automobile while being operated or used in the commission of a crime, other than a traffic violation," and applied it to facts similar to those at issue here. In Safeway, the defendant driver, Mr. Gardner, refused to stop for on-duty police officers who had observed him commit several traffic violations and attempted to pull him over. After refusing to stop, Mr. Gardner forced his way through traffic, collided with six vehicles, and forced others off the road. He was charged with various crimes and ultimately pled guilty to possession of cocaine and battery of a police officer. According to Mr. Gardner, he refused to stop because he was in possession of cocaine. The trial court found that the policy exclusion was inapplicable and held Safeway liable because "[T]he pursuit which led to the chase and subsequent accident was due to observing multiple traffic violations .... Consequently, the vehicle was used for the commission of traffic violations, which are not valid exclusions from policy coverage." Id. at 688-89. On appeal, the Safeway court reversed the trial court, finding that the exclusion was in fact applicable, reasoning as follows:

In our view, "crime," the key term in this exclusion, has a generally prevailing meaning that does not warrant a searching interpretive inquiry.... [W]e conclude that conduct made punishable under Title 14 of the Louisiana Revised Statutes is a "crime" for purposes of this exclusion. Additionally, as the following demonstrates, we find this exclusion does not violate public policy.
The Louisiana legislature has directly commented on the public policy considerations of liability insurance, stating the purpose of such insurance is "to give protection and coverage to all insureds" and is intended "for the benefit of all injured persons." La. R.S. 22:1269(D). This general purpose is advanced in the specific context of motor vehicles by means of the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:851 - 32:1043, which seeks to "eliminat[e] ... the reckless and irresponsible driver from the highways by requiring that owners and drivers of motor vehicles provide proof of financial responsibility[,]" e.g., compulsory automobile liability insurance. Marcus v. Hanover Ins. Co ., 98-2040 (La. 6/4/99), 740 So.2d 603, 606.
Although coverage exclusions generally do not comport with the policy of granting protection for injured persons, the exclusions here serve a separate public policy interest of prohibiting persons from insuring themselves against their own intentional or criminal acts. Withholding insurance coverage for intentional or criminal acts helps to disincentivize such conduct, which in turn serves the purpose of eliminating reckless and irresponsible drivers from the highways. See Breland v. Schilling , 550 So.2d 609, 610 (La.1989) ("The exclusion is designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will pay the piper for the damages."); Goldsmith v. Green , 45,532 (La.App. 2 Cir. 9/1/10), 47 So.3d 637, 641 (recognizing the strong public policy of preventing wrongdoers from indemnifying themselves against their own intentional criminal acts); Young [v. Brown , 27,018 (La.App. 2 Cir. 6/21/95), 658 So.2d 750, writ denied , 95-1811 (La. 10/27/95), 662 So.2d 1 ], supra at 753 ("The purpose of the exclusion is a recognition of a long-standing public policy against insuring illegal activities and thus, promoting their commission."). For these reasons, we find the crime exclusion does not violate public policy.
....
The [trial] court's reasoning neglects to address the salient fact here: the cause of the damages. It is clear from the record that the damages were caused by Mr. Gardner's flight from the police, not traffic violations . Mr. Gardner admitted that he saw blue and red lights, but did not stop because he "was trying to get away" and "was trying to get rid of what [he] had on [him], drugs." He attempted to make his escape by forcing his way through congested rush-hour traffic, colliding with at least six vehicles and forcing others off the road.
We have little difficulty concluding that this was a crime. La. R.S. 14:108.1, captioned "Flight from an officer; aggravated flight from an officer," provides in pertinent part:
A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense.
....
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts: (1) Leaves the roadway or forces another vehicle to leave the roadway[;] (2) Collides with another vehicle or watercraft.[ ]
Because the damages were caused by Mr. Gardner's operation of an automobile in the commission of a crime, coverage under Safeway's liability policy is excluded. See Trumps v. USAgencies Cas. Ins. Co. , 14-25 (La.App. 3 Cir. 05/07/14), 139 So.3d 643 (upholding trial court's determination that a person's flight in a vehicle from law enforcement was a "crime" for purposes of insurance policy exclusion).

Safeway, 191 So.3d. at 687-89 (emphasis added).

We now review the facts of the instant case and consider whether Mr. Bernard's conduct that caused the accident was a "crime" for purposes of exclusion (n) in the applicable policy.

Deputy Early testified at trial regarding the accident and events leading to the accident. He indicated that when he and Mr. Bernard passed each other driving on Banks Street, Mr. Bernard pulled to the side of the road. Thereafter, Deputy Early saw that Mr. Bernard's vehicle had a cracked or broken taillight lens that was illuminating white, instead of red. Then, according to Deputy Early:

I sorta turned around, the U-turn. And [Mr. Bernard's] vehicle, when it saw me do a U-turn, it started to go again. I got caught behind some vehicles, so I wasn't able to catch up to the vehicle until Dale and Lewis Street where I was behind the vehicle at a red light.... When the light turned green, I activated my lights and sirens for the vehicle to pull over into the parking lot. They failed to do so and continued East on Dale Street where it T's into Jefferson Terrace. Down through Jefferson Terrace, as I was pursuing the vehicle, it hit about 80 or 90 miles per hour and failed to stay in his lane, causing other vehicles to leave the roadway and continued to travel 80 or 90 miles per hour until it reached the tracks where the crash occurred.

Deputy Early also described the crash as follows:

From Dale Street, which is where the pursuit initiated, we started going northbound on Jefferson Terrace at a high rate of speed. The tracks of Jefferson Terrace right before you get to St. Peter Street, it is kind of elevated. So [Mr. Bernard] was going about 80 or 90 miles per hour and when he hit the tracks his vehicle left the ground and hit [Mr. Charles' vehicle] that was facing northbound on Jefferson Terrace.
....
It sent the suspect vehicle, along with [Mr. Charles's vehicle], across the intersection which collided into the Chevy Tahoe.

Deputy Early also indicated the Tahoe caught fire as a result of the accident. He further testified that after the accident, Mr. Bernard exited his vehicle through the driver's side window, fled the scene, and was eventually apprehended. Also according to Deputy Early, Mr. Bernard told him that the reason he fled was "[b]ecause he didn't have a Louisiana driver's license." He also noted that there was no indication that Mr. Bernard intended to collide with, or veer into, Mr. Charles's vehicle. Rather, according to Deputy Early, Mr. Bernard had made the choice to run and was trying to get away.

Mr. Bernard was subsequently arrested and charged with violating various criminal statutes, including: La.R.S. 14:108(B), "Resisting an officer"; La.R.S. 14:108.1, "Flight from an officer; aggravated flight from an officer; La.R.S. 14:96, "Aggravated obstruction of a highway of commerce"; La.R.S. 40:966, "[D]istribution or possession with intent to distribute narcotic drugs listed in Schedule I; possession of marijuana...." He was also charged with violations of various traffic regulations under Title 32 of the Louisiana Revised Statutes. Ultimately, he pled guilty to aggravated obstruction of a highway, which is defined as "the intentional or criminally negligent placing of anything or performance of any act on any ... road, highway, [or] thoroughfare, ... wherein it is foreseeable that human life might be endangered." La. R.S. 14:96. Mr. Bernard also pled guilty to possession of a Schedule I narcotic, a violation of La.R.S. 40:966.

Mr. Bernard's deposition testimony was also submitted by the parties in lieu of him testifying live at trial. Therein, Mr. Bernard agreed that when Deputy Early activated his lights and tried to stop him, he made the decision that he was not going to stop. He testified, "And then I just got scared. And I thought he was probably going to arrest me for not having no license or nothing. And so ... I kept going straight[.]" He also admitted that he had no intention of stopping for Deputy Early and that when Deputy Early was behind him on Dale Street with his lights flashing, "I wasn't thinking. I was just - - I don't know. I just kept going." Mr. Bernard also testified, "as soon as I jumped the track, I just blacked out after that. I don't remember nothing happening after that."

We conclude that under the instant facts, the trial court was manifestly erroneous in failing to find Plaintiffs' damages were caused by Mr. Bernard's commission of a crime, and not traffic violations. As in Safeway, the undisputed facts show that Mr. Bernard ran into Mr. Charles's vehicle while intentionally fleeing from an officer in violation of La.R.S. 14:108.1, which is a crime. While Mr. Charles tries to distinguish Safeway because Mr. Bernard's underlying reason for fleeing from the officer was to avoid a traffic violation, we find that the reason Mr. Bernard committed the crime (i.e. flight from an officer) is irrelevant to the question of whether he committed a crime. The policy is clear that damages arising out of the use of an automobile while that automobile is being used to commit a crime, other than a traffic violation, are excluded from coverage.

Because we find that exclusion (n) under the policy is applicable, and therefore coverage is not available, we do not consider Safeway's remaining arguments on appeal. We reverse the trial court's ruling against Safeway and dismiss Plaintiffs' claims against it.

Plaintiffs' Answer to the Appeal

On appeal, Plaintiffs seek to increase the $ 35,000.00 in damages awarded to Mr. Charles to $ 50,000.00. The parties stipulated that the amount of his damages did not exceed $ 50,000.00

A trier of fact is given great discretion in its assessment of damages. Monte v. State Farm Mut. Auto. Ins. Co. , 13-979 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139, writ denied, 14-1289 (La. 09/26/14), 149 So.3d 267. "Because the discretion vested in the trier of fact is so great, even vast, an appellate court should rarely disturb an award on review." Id. at 1148.

On appeal, Plaintiffs ask us to increase Mr. Charles's award, but provide no explanation or argument as to why they think we should do so. Rather, they generally refer to Mr. Charles's testimony that he was in good health before the accident, he injured his back, neck, and shoulder in the accident and had not recovered from his injuries or was able to return to work as of the date of trial, that he treated regularly for his injuries but had to stop because of financial reasons, and that prior to the accident he made approximately $ 18,000.00 to $ 20,000.00 per year as a farmer. Plaintiffs also note a medical expenses summary entered into the record showing medical expenses totaling $ 11,427.02. Plaintiffs do not argue, much less explain, how this evidence shows an abuse of discretion on the part of the trial court, and therefore, we are not inclined to upset the trial court's damages award on appeal. The amount of damages found to be incurred by Mr. Charles is affirmed.

CONCLUSION

For the following reasons, we reverse the trial court's judgment against Safeway and dismiss Plaintiffs' claims against it. We further affirm the amount of damages the trial court found to have been incurred by Mr. Charles. Costs of this appeal are assessed to Plaintiffs.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

Perry, J. concurs and assigns additional reasons.

PERRY, Judge, concurring to assign additional reasons.

I agree wholeheartedly with the majority's well-reasoned opinion. However, I write separately to assign additional reasons.

Louisiana Revised Statutes 22:860 (A) provides:

Except as provided in Subsection B of this Section, R.S. 22:1314, and 1315, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.

In Kahl v. Chevalier , 15-1028 (La.App. 3 Cir. 3/23/16), 188 So.3d 449, 455-56, this court held that in interpreting La.R.S. 22:860 :

[A]n insurer has the burden of proving whether an insured made material misrepresentations sufficient to rescind the automobile insurance policy. Abshire v. Desmoreaux , 07-26 (La.App. 3 Cir. 11/7/07), 970 So.2d 1188, writ denied , 08-226 (La. 4/4/08), 978 So.2d 326. We note that our colleagues in the second circuit interpreted La.R.S. 22:860 to mean that an insurance policy may be voided if an insurer proves that: "(1) the insured made a false statement; (2) the false statement was material; and (3) it was made with intent to deceive." Willis v. Safeway Ins. Co. of La. , 42,665, p. 6 (La.App. 2 Cir. 10/24/07), 968 So.2d 346, 350 (citing West v. Safeway Ins. Co. of La. , 42-028 (La.App. 2 Cir. 3/21/07), 954 So.2d 286 ). This court recently explained that "[i]ntent to deceive under La.R.S. 22:860 is determined from circumstances indicating the insured's knowledge of the falsity of the representations made in the application." Burley v. New York Life Ins. Co ., 15-263, p. 7 (La.App. 3 Cir. 11/25/15), 179 So.3d 922, 930 (citing State Farm Mut. Auto. Ins. Co. v. Bridges , 45,162 (La.App. 2 Cir. 5/19/10), 36 So.3d 1142 ). Further, "[t]o prove materiality of a false statement under La.R.S. 22:860, the insurer must show that the statement was 'of such a nature that, had it been true, the insurer would either not have contracted or would have contracted only at a higher premium rate.' " Id. (quoting Ned v. Magnolia Life Ins. , 590 So.2d 733, 735 (La.App. 3 Cir. 1991) ).

The record is replete with false statements or misrepresentations Curtis Narcisse ("Mr. Narcisse") made in his Safeway application for liability insurance that directly impacted Safeway's decision to accept the risk and affected the insurance premium. In his trial testimony, Mr. Narcisse admitted he lived on Field Street in New Iberia when he applied for the Safeway policy, not at the Corrine Street address he provided on his application; as the testimony shows, the garaging address would have been integral to Safeway's issuance of a policy of insurance. Even though he was living on Field Street with his wife and his two children, Curtis Bernard, twenty years of age, and Megan Bernard, twenty-one years of age, his application for insurance shows there were no family members age 15 or older living in the household; this becomes even more significant because neither of these children were licensed drivers, and Mr. Narcisse was fully aware unlicensed drivers were not insurable. Finally, although Mr. Narcisse knew he owned another vehicle and that it was insured by a different insurance company, he denied both facts on his Safeway application. Thus, it is clear that these material misrepresentations were made with an intent to deceive, and had Safeway known the truth, it would either have declined to accept the risk or would have undertaken that risk at a significantly higher premium.

After viewing these multiple falsehoods and material misrepresentations in light of Safeway's underwriting policies, I find that Safeway established its material misrepresentation defense and that this contract of insurance was void from its inception.

      We note that La.R.S. 14:108.1 also lists the following acts:
      (3) Exceeds the posted speed limit by at least twenty-five miles per hour.
      (4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
      (5) Fails to obey a stop sign or a yield sign.
      (6) Fails to obey a traffic control signal device.

      Given the undisputed intentional nature of Mr. Bernard's violation of La.R.S.14:108.1, we do not consider whether a policy exclusion that excludes criminal negligence from coverage is a violation of public policy or enforceable. See, Young, 658 So.2d 750.

      Although we dismiss Plaintiffs' claims against Safeway, there is a judgment against Mr. Bernard in favor of Plaintiffs. Therefore, we will discuss Plaintiffs' answer to the appeal.


source: Caselaw Access Project

author: CONERY, Judge. Keaty, J., dissenting:

license: Public Domain

text:
    Billie THI LE v. Leeanna Vanderwater LU, et. al.
    Michaela Elouise Jordon DeVos, et. al. v. Robin L. Hooter, in Her Official Capacity as Rapides Parish Clerk of Court
    18-652 18-655
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Jeremy C. Cedars, Lineage Law, LLC, 4615 Parliament Drive, Suite 202, Alexandria, Louisiana 71303, (318) 767-2226, COUNSEL FOR DEFENDANTS/APPELLANTS: Michaela Elouise Jordan DeVos, John Scott Martin
    Eugene Paul Cicardo, Jr., Attorney at Law, Post Office Box 11976, Alexandria, Louisiana 71315, (318) 445-2097, COUNSEL FOR PLAINTIFF/APPELLEE: Billie Thi Le
    Robin L. Hooter, Rapides Parish Clerk Of Court, 701 Murray Street, Suite 102, Alexandria, Louisiana 71301, DEFENDANT/APPELLEE: In Proper Person
    Court composed of John D. Saunders, Phyllis M. Keaty, John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.
   CONERY, Judge.

Michaela Jordan DeVos and John Scott Martin (DeVos and Martin) appeal the trial court's April 9, 2018 judgment dismissing their exceptions of no cause or right of action against Billie Thi Le (Ms. Le) and their petition for writ of mandamus against Robin Hooter, the Rapides Parish Clerk of Court, on the basis that the sale of property on September 13, 2013 from Leeanna Vanderwater Lu (Ms. Vanderwater) to DeVos and Martin, under instrument number 1610399, was set aside and declared invalid. Based on this ruling, the trial court found that Ms. Le was the lawful owner of the immovable property located at 5815 Bruyninckx, Alexandria, Louisiana. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Ms. Vanderwater came into possession of the immovable property at issue, a house and lot situated at 5815 Bruyninckx, Alexandria, Louisiana, on March 3, 2011, by the judgment of possession recorded in Rapides Parish Conveyance Book 1882, page 535. The name on the judgment of possession was Leeanna L. Vanderwater Lu.

On July 8, 2017, Ms. Le and Ms. Vanderwater entered into a buy-sell agreement for Ms. Le to purchase the property from Ms. Vanderwater (the Le buy-sell agreement). The name signed on the Le buy-sell agreement was "Leeanna Ann Vanderwater." The closing was scheduled for August 17, 2017 at the office of Ms. Le's attorney, Mr. Michael S. Tudor. After Ms. Vanderwater was informed of the closing date, on the morning of the closing she informed Mr. Tudor that she no longer wished to proceed with the sale to Ms. Le and canceled the closing.

On August 28, 2017, Ms. Le filed a petition for specific performance and damages in the Ninth Judicial District Court claiming breach of the Le buy-sell agreement. The case was assigned civil docket number 259,736. Ms. Le also filed a notice of lis pendens in the mortgage records of Rapides Parish in Book 3036, Page 630, on August 30, 2017, with a specific reference to the civil docket number (August 2017 notice). No municipal address or legal description was included in the August 2017 notice, only the civil docket number of Ms. Le's specific performance suit filed in the civil suit records.

On September 13, 2017, Ms. Vanderwater executed an act of sale in order to convey the same property to DeVos and Martin. Ms. Vanderwater testified that about two weeks before the execution of the act of sale between herself and DeVos and Martin, she informed DeVos and Martin of Ms. Le's pending suit, and showed them the actual petition with her citation to answer.

Ms. DeVos testified that she never had notice of the pending lawsuit, but, was aware through discussions with Ms. Vanderwater of a threat of a lawsuit. Ms. DeVos testified that prior to the act of sale on September 13, 2017, she neither told her closing attorney, Mr. Marion French, nor her friend, Sallie McManus of Lawyer's Abstract, who did the chain of title, of the threat of a lawsuit over the sale of the property at issue. Ms. DeVos testified that Ms. Vanderwater informed her that Ms. Le had failed to attend the previous closing and hence she was selling the property to DeVos and Martin. The trial court in its reasons for judgment specifically found that DeVos and Martin did not discover that there was a pending lawsuit by Ms. Le until December of 2017, some three months after they purchased the property at issue, thereby implicitly finding that the testimony of Ms. Vanderwater as to giving actual notice of the suit to DeVos and Martin was not credible.

Neither Mr. French, the closing attorney, nor Ms. McManus, the abstractor, noted the August 2017 lis pendens notice in the mortgage records prior to the sale of the property to DeVos and Martin, as neither examined the mortgage records after the August 30, 2017 filing of the notice, notwithstanding that the actual sale to DeVos and Martin did not take place until September 13, 2017. Neither of them checked the suit records to determine whether the "threatened" lawsuit had been filed and whether it may have affected title to the subject property.

On January 5, 2018, after Ms. Le discovered that Ms. Vanderwater had sold the property in question to DeVos and Martin, she filed a first supplemental and amending petition naming DeVos and Martin as additional defendants in the pending lawsuit, and seeking declaratory relief that she be declared owner of the property. A second notice of lis pendens was filed in the mortgage records of Rapides Parish, which included the municipal address of the property (January 2018 notice.) By contrast, the municipal address was not contained in the August 2017 notice. However, as with the August 2017 notice, the civil docket number of the pending suit for specific performance was listed in the January 2018 notice. DeVos and Martin responded to Ms. Le's lawsuit with exceptions of no cause and no right of action.

DeVos and Martin subsequently filed a petition for a writ of mandamus and declaratory relief against Robin Hooter in her official capacity as Rapides Parish Clerk of Court claiming that the August 2017 notice was defective on its face, and requesting that the trial court issue an order cancelling the August 2017 notice from the Rapides Parish Mortgage records.

On February 18, 2018, a trial was held on Ms. Le's claims against Ms. Vanderwater. After Ms. Vanderwater testified, the proceedings concluded with a consent judgment in which Ms. Vanderwater agreed to, and the trial court ordered her to, execute the documents necessary to convey ownership of the property located at 5815 Bruyninckx, Alexandria, Louisiana to Ms. Le, contingent on the outcome of a later determination by the trial court of the validity of the August 2017 notice filed on behalf of Ms. Le. Ms. Le was also required to deposit the sales price for the property of $ 50,000 into the registry of the court. The consent judgment was signed on February 28, 2018.

The consent judgment specifically severed and reserved for a subsequent trial the claims of DeVos and Martin seeking a writ of mandamus, along with their exceptions of no cause or right of action, and Ms. Le's claims against DeVos and Martin in her suit for specific performance.

DeVos and Martin filed a motion for summary judgment on or about February 20, 2018, against Ms. Le's supplemental and amending petition, which was heard on March 9, 2018. The trial court denied the motion for summary judgment and found there was a genuine issue of material fact as to the validity of the August 2017 notice.

On March 21, 2018, all of the remaining issues were heard by the trial court. After hearing testimony from Ms. DeVos and her former closing attorney, Marion French, along with John Tudor, the original attorney who handled the initial aborted sale of the property to Ms. Le, the trial court found in favor of Ms. Le. In oral reasons given on the record, the trial court denied DeVos and Martin's petition for a writ of mandamus, as well as the exceptions of no cause and right of action. The trial court further ordered that the sale between Ms. Vanderwater and DeVos and Martin be set aside and declared invalid. All claims by DeVos and Martin against Robin Hooter were dismissed. All costs were assessed against DeVos and Martin. The judgment was signed on April 9, 2018, from which DeVos and Martin have now timely appealed.

ASSIGNMENTS OF ERROR

1) The trial court erred as a matter of law in finding that the Notice of Lis Pendens filed on August 28, 2017, was valid notice that satisfied the requirements of Louisiana Code of Civil Procedure articles 3751 and 3752.
2) The trial court erred in permitting a Notice of Lis Pendens which encompassed any property of a potential debtor to be declared valid prior to the rendition of a judgment.
3) The trial court erred by failing to grant the Writ of Mandamus and Declaratory Judgment in favor to DeVos and Martin.
4) The trial court erred in permitting expert opinion testimony from Marion French and Michael Tudor on the ultimate issue of law.
5) Because the trial court found the August 2017 Notice of Lis Pendens valid, it pretermitted the issue of whether the January 5, 2018, Notice of Lis Pendens could have retroactive effect. The trial court erred in failing to invalidate the January 2018 Notice of Lis Pendens.

STANDARD OF REVIEW

This case poses a question of law, which requires a determination of whether the August 2017 notice of lis pendens filed in this case meets the statutory requirements of La.Code Civ.P. arts. 3751 and 3752. Accordingly, the appropriate standard of review is de novo . A de novo review simply asks whether the trial court was legally correct or legally incorrect. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. "[T]he appellate court assigns no special weight to the trial court." Id. at 657. Instead, the appellate court reviews the record in its entirety and determines "whether the trial court's decision was legally correct in light of the evidence." Id.

LAW AND DISCUSSION

"The purpose of a notice of lis pendens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. La[.Code Civ.P. art.] 3751." L.E.C., Inc. v. Collins , 332 So.2d 565, 568 (La.App. 1 Cir. 1976) ; See also Karst v. Fryar , 430 So.2d 318 (La.App. 3 Cir. 1983).

The Louisiana Supreme Court in Cimarex Energy Co. v. Mauboules , 09-1170, pp. 19-20 (La. 4/9/10), 40 So.3d 931, 944, discussed the history of the jurisprudence of the public records doctrine and stated:

The public records doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. Title, supra at § 8.16; Camel [v. Waller] , 526 So.2d [1086,] at 1089-1090 [ (La. 1988) ] ; Phillips v. Parker , 483 So.2d 972, 975 (La.1986). In explaining the negative nature of the doctrine, this Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Camel, 526 So.2d at 1090 [citing Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems , 39 Tul. L.Rev. 491 (1965) ]. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests. Camel , 526 So.2d at 1090 ; Phillips , 483 So.2d at 976.

Louisiana Code of Civil Procedure Articles 3751 and 3752 govern the necessary recording process and the required elements for a notice of lis pendens to be validly executed:

Article 3751 :

The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of the pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.

Article 3752 :

A. The notice referred to in Article 3751 shall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice recorded, or by a counsel of record for such party showing the name of the persons against whom it is to be effective, the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby.
B. This notice shall be recorded in the mortgage office of the parish where the property to be affected is situated and has effect from the time of the filing for recordation. The notice shall cease to have effect after ten years from the date of its filing for recordation. Nevertheless, if the action or proceeding is still pending, the notice may be reinscribed by refiling the notice. A reinscription of the notice that is filed before the effect of recordation ceases continues that effect for five years from the day the notice is reinscribed.

A panel of this court in Trouth Air Conditioning & Sheet Metal, Inc. v. Bay Electric Co., Inc. , 17-529, p. 3 (La.App. 3 Cir. 8/23/17), 226 So.3d 552, 555 provided:

[O]ur law states that lis pendens is stricti juris and 'any doubt concerning the application of lis pendens must be resolved against its application.' Rayner v. Evangeline Bank & Trust Co. , 17-75, p. 4 (La.App. 3 Cir. 5/10/17), 219 So.3d 1122 (quoting Robbins v. Delta Wire Rope, Inc. , 15-1757, p. 7 (La.App. 1 Cir. 6/3/16), 196 So.3d 700, 705 ).

Additionally, La.R.S. 1:3 provides with respect to the interpretation of a statute as follows:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word "shall " is mandatory and the word "may" is permissive.

(Emphasis ours.)

Therefore, with the necessary framework in place for the interpretation of the validity of the August 2017 notice filed by Ms. Le, we will address assignments of error raised by DeVos and Martin.

Assignment of Error One -Validity Of The Notice of Lis Pendens

DeVos and Martin urge in their first assignment of error that the August 2017 notice filed in conjunction with the lawsuit for specific performance filed by Ms. Le on August 28, 2017 does not meet the specific requirements of La.Code Civ.P. art. 3752. More specifically, they argue that the August 2017 notice filed on behalf of Ms. Le is defective for the following reasons:

a. The Notice of Lis Pendens does not describe the "object thereof" as required by Louisiana Code of Civil Procedure article 3752 ;
b. The Notice of Lis Pendens does not contain any description (either legal or municipal) of the property for which the Notice is allegedly to be enforced in contravention of Louisiana Code of Civil Procedure article 3752.

The August 2017 notice filed by Ms. Le in conjunction with her lawsuit for specific performance filed on August 28, 2017 stated as follows:

BILLIE THI LE 9TH JUDICIAL DISTRICT COURT VERSUS PARISH OF RAPIDES LEEANNA VANDERWATER STATE OF LOUISIANA

NOTICE OF LIS PENDENS

Please take notice that in the above captioned suit one of the defendants[plaintiffs] is BILLIE THI LE , a citizen and resident of Rapides Parish, Louisiana. It has been alleged that LEEANNA VANDERWATER is justly, truly, and legally indebted unto the BILLIE THI LE for specific performance in the above captioned suit.
Any individual seeking to acquire an interest in any property owned by LEEANNA VANDERWATER or a security interest thereon are hereby notified that any acquisition or rights may be subject to the above captained suit and demands made therein.

There is no dispute that the August 2017 notice filed on behalf of Ms. Le on August 28, 2017, was recorded in the mortgage records two weeks prior to the September 13, 2017 closing of the sale to DeVos and Martin of Ms. Vanderwater's property located at 5815 Bruyninckx, Alexandria, Louisiana. It is also undisputed that neither Ms. McManus nor Mr. French examined the mortgage records subsequent to the filing of the August 2017 notice. Therefore, the primary issue is whether the August 2017 notice filed by Ms. Le was valid.

Article 3752(A) (emphasis ours) requires that the notice of lis pendens:

[S]hall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice recorded, or by a counsel of record for such party showing the name of the persons against whom it is to be effective, the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby.

DeVos and Martin agree that "There is no issue that the title, docket number, date of filing, court of record, and the signature of counsel of record is present in the August 2017 Notice of Lis Pendens." Although the August 2017 notice identifies Ms. Le as a defendant, it is clear that the basis of the August 2017 notice is that Ms. Vanderwater is subject to a suit for specific performance. However, DeVos and Martin argue that there is "no object set forth" and "there is no municipal or legal description" contained in the August 2017 notice.

No Specific Object Stated In The August 2017 Notice

The August 2017 notice at issue refers to "any property owned by LEEANNA VANDERWATER or a security interest thereon." Although subsequent testimony provided that Ms. Vanderwater only owned the property at issue, DeVos and Martin argue that the term "property" in conjunction with a lien is overly broad. Louisiana Civil Code Article 448 provides, "Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables." Therefore, the August 2017 notice as written does not clearly define the "object thereof," and does not meet the requirements of La.Code Civ.P. art. 3752.

Failure to Include Either a Municipal Address Or Property Description

The August 2017 notice at issue provides that "any acquisition or rights may be subject to the above captioned suit [Civil Suit No. 259,736 E] and demands made therein ." (emphasis added) On its face it is clear that the "description of the property sought to be affected thereby ," as required by La.Code Civ.P. art. 3752(A) (emphasis added) is not included in the August 2017 notice. Instead, in order to determine the property what is the subject of the lien, an individual would then be required to search the civil suit records in order to obtain the municipal address of the property, 5815 Bruyninckx, Alexandria, Louisiana. In Cardinal Federal Savings Bank v. Corp. Towers Partners, Ltd. , 629 So.2d 462, 465 (La.App. 3 Cir. 1993), writ denied, 634 So.2d 396 (La.1994), a panel of this court found, "there is no law or jurisprudence which considers the suit index the 'public records' for purposes of title searches."

Although Ms. Le later filed a January 5, 2018 notice which did contain the municipal address of the property at issue in conjunction with her first supplemental and amending complaint, this action by Ms. Le did not cure the deficiency in the August 2017 notice. We find that the act of sale conveying the property to DeVos and Martin took place on September 13, 2017, months before the January 2018 notice was filed. Louisiana Civil Code Article 3347 controls and provides, "The effect of recordation arises when an instrument is filed with the recorder and is unaffected by subsequent errors or omissions of the recorder. An instrument is filed with a recorder when he accepts it for recordation in his office." Accordingly, the January 5, 2018 notice only serves to give notice to any third person after the date it was filed, and does not relate back to the August 2017 notice at issue. Accordingly, we find that the August 2017 notice does not contain the required "description of the property sought to be affected thereby" as required by La.Code Civ.P. art. 3752 (A).

Trial Court's Ruling

The trial court in its reasons for judgment found that DeVos and Martin "only learned about the problems in the month of December when the suit was filed back in September." The trial court continued with its reasons and found:

It is my finding today that based on Mr. French and Mr. Tudor's testimony that Joint [Exhibit] Six [the August 28, 2017 notice], the document itself, is filed in the mortgage records, and it's listed in the daily filings report, provided enough notice of a pending action to satisfy [ Article] 3751. That would draw attention of any public searching records that Leeanna Vanderwater was involved in an action.

The trial court then discussed the application of La.Code Civ.P. art. 3752 to the contents of the August 28, 2017 notice and found:

No, the document is not perfect. However both testified (sic) by French and Tudor, it would've prompted further inquiry. And I cited also from Carr [v.] Oak Tree [Oaktree] , which states that: "The guidelines indicate that errors in a recorded document do not automatically preclude the effectiveness of a document against third parties, third persons. Determinations concerning the sufficiency of notice in the public records must be decided on a case-by-case basis." And this, I felt like, was one of those cases that needed to be a case-by-case basis review, looking closely at what the abstractor missed completely, so that it deprived them of an opportunity to know what Joint Six meant.

The trial court cited Carr v. Oaktree Apartments , 45,514 (La.App. 2 Cir. 8/11/10), 46 So.3d 793, writ denied , 10-2092 (La. 11/12/10), 49 So.3d 896, to support its ruling that the August 2017 notice was valid pursuant to La.Code Civ.P. art. 3752, and thus served its intended purpose to give notice to DeVos and Martin of the pending claim for specific performance by Ms. Le. The trial court found that errors in the recorded document, such as the different spelling of the name of the apartment complex in Carr , "do not automatically preclude the effectiveness of the document." Id. However, in this case the failure to give any property description, either legal or municipal, is not an error but an omission. Under the required strict statutory interpretation of La.Code Civ.P. art. 3752, this omission renders the August 28, 2017 notice invalid.

We find the trial court erred in first making a legal determination that the August 2017 notice would have been sufficient to give notice of the pending litigation without first examining whether the August 2017 notice met the strict statutory requirements of La.Code Civ.P. art. 3752 to constitute a valid notice of lis pendens.

This omission under the required strict statutory interpretation of La.Code Civ.P. art. 3752, coupled with the failure of the August 2017 notice to clearly define the "object thereof," renders the August 28, 2017 notice invalid and requires reversal of the trial court's April 9, 2018 judgment in favor of Ms. Le.

Having found merit in assignment of error one asserted by DeVos and Martin, we pretermit any further discussion of their three remaining assignments of error.

CONCLUSION

Considering the foregoing, the April 9, 2018 judgment of the trial court is reversed. The petition for a writ of mandamus filed on behalf of Michaela Jordan DeVos and John Scott Martin is hereby granted. The Clerk of Court for Rapides Parish, Robin Hooter, is ordered to cancel the notice of lis pendens filed on August 28, 2017 on behalf of Billie Thi Le in the mortgage records of Rapides Parish in Book 3036, Page 630. Costs for the cancellation, all costs of court, as well as costs of this appeal are assessed to Billie Thi Le.

REVERSED AND RENDERED.

Keaty, J., dissents and assigns written reasons.

Perret, J., dissents for the reasons assigned by Judge Keaty.

Keaty, J., dissenting:

I respectfully dissent from the majority opinion as I find that it applies a more rigid and onerous standard than that which the law requires. As Judge Conery correctly notes, "[t]he primary focus of the public records doctrine is the protection of third persons against unrecorded interests." Cimarex Energy Co. v. Mauboules , 09-1170, p. 20 (La. 4/9/10), 40 So.3d 931, 944.

In Voelkel v. Harrison , 572 So.2d 724, 726-27 (La.App. 4 Cir. 1990) (emphasis added), writ denied, 575 So.2d 391 (La.1991), the fourth circuit made the following observations about the public records doctrine:

Under the public records doctrine, third persons need only to look to the public records to determine adverse claims. See McDuffie v. Walker , 125 La. 152, 51 So. 100 (1909). All persons are held to have constructive notice of the existence and contents of recorded instruments affecting immovable property. Thomas v. Lewis , 475 So.2d 52 (La.App. 2nd Cir.1985) ; Wells v. Joseph , 234 La. 780, 101 So.2d 667 (1958).
The jurisprudence has established some guidelines to determine when recorded instruments place a third party on inquiry as to the title and/or description of the property involved. However, the criteria is not precise. A review of the jurisprudence reveals that the determinations of the sufficiency of notice must be decided on a case by case basis . Watterson v. Magee, 498 So.2d 30 (La.App. 1st Cir.1986). Where a recorded instrument has language that fairly puts a third person on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own peril . Wells v. Joseph, supra ; Brown v. Johnson, 11 So.2d 713 (La.App. 2nd Cir.1942) ; Florida Gas Exploration Company v. Bank of St. Charles and Trust Company, 435 So.2d 535 (La.App. 5th Cir.1983) ;
Judice-Henry-May Agency, Inc. v. Franklin, 376 So.2d 991 (La.App. 1st Cir.1979), writ denied, 381 So.2d 508 (La.1980). When one is put on inquiry as to title, availing one's self of "means and facilities at hand" requires an examination of any necessary public records, but not a wide ranging search of unrecorded documents . Judice-Henry-May Agency, [376 So.2d 991 ].
The Louisiana Supreme Court has held that the description of real property in a mortgage or deed, although such description may be inaccurate or faulty, is sufficient to serve as notice to third parties dealing with that property if the description is adequate to enable the court to locate and identify the property with certainty, and if it is not so inaccurate or faulty as to be misleading.

See also Carr v. Oaktree Apartments , 45,514, pp. 6-7 (La.App. 2 Cir. 8/11/10), 46 So.3d 793, 797, (emphasis added), writ denied, 10-2092 (La. 11/12/10), 49 So.3d 896.

At the March 21, 2018 hearing in this matter, Mr. Marion French, DeVos's former closing attorney testified that if he had checked the title of the Vanderwater property, he would have "come across" the August 28, 2017 Notice of Lis Pendens, and he would have brought it to the attention of his clients. Thereafter, Mr. Michael Tudor, Ms. Le's real estate attorney, testified that the August 28, 2017 Notice of Lis Pendens created a "potential cloud" on the title of the property. As a result, he would have noted it on any title opinion that he prepared regarding the property, he would have made his clients aware of it, and he would have investigated the status of its effect on the title to the property.

Given the foregoing testimony, I believe that the August 28, 2017 Notice of Lis Pendens was sufficient to put third parties on notice of an adverse claim related to the immovable property at issue. I also believe that a reasonably prudent closing attorney and/or abstractor should have rechecked the mortgage records closer to the September 13, 2017 act of sale of the property from Ms. Vanderwater to DeVos and Martin. Accordingly, I would affirm the appealed judgment.


author: BLEICH, J. (Ad Hoc)

text:
    STATE of Louisiana, Appellee v. Jeffery Sanchez SMITH, Appellant
    No. 52,638-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JEFFERY SANCHEZ SMITH, Pro Se
    J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, RICHARD R. RAY, DALE N. MONTGOMERY, II, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, STONE, and BLEICH (Ad Hoc), JJ.
   BLEICH, J. (Ad Hoc)

This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, the Honorable John M. Robinson presiding. Defendant, Jeffery Sanchez Smith, was convicted of manslaughter, in violation of La. R.S. 14:31. Defendant was sentenced to 38 years' imprisonment at hard labor. For the following reasons, Defendant's conviction and sentence are affirmed.

FACTS

Defendant, Jeffery Sanchez Smith, was charged by bill of indictment with the second degree murder of Jeremy Davis, in violation of La. R.S. 14:30.1. A jury trial commenced on April 30, 2018. Teresa Cooper, Defendant's girlfriend, testified that on June 24, 2016, she was living at 1029 Shirley Lane with Defendant and her three sons, Kaderrick Cooper, Jeremy Davis, and Jacoby Smith (her son with Defendant).

Kaderrick Cooper testified that he was present at the Cooper house after 10:00 p.m. on the night of June 24, 2016. Kaderrick stated that he was in his room at the back of the house when Teresa and Defendant came home. He could hear his mother Teresa and brother Jeremy begin arguing. Kaderrick testified that he heard Defendant yell something and then heard a sound "almost like a firecracker." Jeremy ran into Kaderrick's room and hid behind Kaderrick's back. Kaderrick testified that Defendant followed Jeremy into the bedroom and pointed a gun at him. Kaderrick, a former Marine, identified the gun as a chrome-colored .38 pistol.

Kaderrick testified that his mother walked to the bedroom door, and she and Kaderrick tried to subdue Defendant and get him to lower his weapon so Jeremy could leave the room. Kaderrick testified that Defendant overpowered them and shot Jeremy in the back as he attempted to run from the bedroom. Kaderrick stated that he did not see Defendant and Jeremy physically fighting or struggling over a gun at any time. When Kaderrick found out that Jeremy had died, he ran out of the house after Defendant. At that time, Defendant turned around and began shooting at him.

On cross-examination, Kaderrick admitted that Jeremy had pled guilty to misdemeanor battery and spent six months in jail over a fight in which he knocked out some of Kaderrick's teeth.

Teresa Cooper testified that on June 24, 2016, when she and Defendant returned home from his sister's house, she began arguing with Jeremy about a case of water that he had opened. Theresa stated that she was standing in the kitchen, and Jeremy was standing in the living room when the argument began. Teresa testified that, when she told Jeremy that he could not have the case of water, he grabbed her by the neck, pushed her head up against the wall, and choked her. She stated that she heard a gunshot from the back of the house, apparently fired into the ceiling of the living room. Jeremy then ran to Kadderick's room.

Teresa testified that she followed Jeremy into Kaderrick's room and saw Defendant with a gun. Teresa stated that she and Kaderrick attempted to keep Defendant and Jeremy apart, but her son was able to move into the hallway, where Jeremy punched Defendant in the face. At that point, the two men fell to the floor. Teresa testified that she heard a gunshot, and they ran out of the house. She did not actually see the shooting.

Jameisha Gilmore, a cousin of the Coopers, testified that she was in town from Texas visiting her grandmother, Mary Cooper, a neighbor of Teresa Cooper (Mary lives at 1031 Shirley Lane). Jameisha testified that, during the evening, the women heard a commotion and went outside. She saw Defendant walking down the street with a silver gun in his hand. Jameisha stated that she heard Defendant yell, "He shouldn't've been fuckin' with me." She also stated that she could hear, but not see, Kaderrick Cooper, who was outside of the Cooper house. Jameisha testified that she heard Defendant tell Kaderrick, "If you fuck with me I'll kill you too." At that point, Defendant began shooting towards Theresa Cooper's house and Jameisha's aunt made her go back inside the house. Breanna Cooper, who resides at 1033 Shirley Lane, testified that she also witnessed Defendant walking down the sidewalk in the direction of her house with a gun in his hand on the night of June 24, 2016. According to Breanna, Defendant was yelling, but she could not recall what he said. She testified that Defendant stopped approximately two houses away from her home and "opened fire."

Officer Matthew Camp of the Bossier City Police Department testified that, when he responded to the scene, he made contact with Defendant, who was standing on the side of the road near a drainage ditch approximately a block from his house. As Officer Camp approached Defendant, the officer asked Defendant for the gun. Officer Camp testified that Defendant responded, "You'll never find it." Officer Michael Iman of the Bossier City Police Department testified that he approached Officer Camp and Defendant while canvasing for the shooting suspect. Officer Iman testified that he asked Defendant, "Why'd you shoot that guy?" and Defendant's response was, "Well, I told that mother fucker to quit messing with me." Defendant was advised of his Miranda rights, handcuffed, and placed in a vehicle. Officer Iman testified that Defendant continued to make statements as he was transported, but the officer could not recall the exact nature of those statements. Officer Iman's dash cam recording was played for the jury and admitted as State's Exhibit 3. Officers searched the area, but were unable to locate the gun.

Detective Karen McDonald of the Bossier City Police Department testified that Defendant had already been detained when she arrived at the scene. She interviewed Defendant at the Bossier City Police Department. Det. McDonald testified that she informed Defendant of his Miranda rights and identified State's Exhibit 1 as the "rights card" that he signed acknowledging a waiver of those rights. Det. McDonald testified that she did not see any defensive wounds on Defendant during their interview. During the interview, Defendant reported that Jeremy pulled a gun during the argument, they struggled, and the gun went off.

Dr. Frank Peretti, an associate medical examiner and forensic pathologist, testified that he conducted the autopsy of Jeremy Davis. Dr. Peretti testified that he recovered a bullet projectile from Jeremy's right hip area. According to Dr. Peretti, the bullet entered Jeremy's left shoulder region, at the top and back of the shoulder, and there was no exit wound. Dr. Peretti noted that the wound path or trajectory was unusual because its direction was sharply downward, across the body. He testified that he did not see any evidence of powder, burning, or stippling on Jeremy, all of which would all be indications of a struggle or a close proximity shooting. Dr. Peretti testified that he did note two small abrasions, but no other signs of a struggle. He stated that the abrasions could have occurred when Jeremy fell to the ground. A photograph of that projectile was admitted as State's Exhibit 13, the projectile was admitted as State's Exhibit 11, and the autopsy report was admitted as State's Exhibit 16.

Det. McDonald testified that an initial search of the house had been conducted on June 24 and 25, 2016. Detective Steven Durr testified that he photographed the house and collected evidence. Det. Durr stated that he recovered a projectile from between the corner of the hallway and the back bedroom. He also photographed bullet holes in the wall and ceiling of the house. The house was then released to Teresa Cooper and her family.

Det. McDonald obtained a search warrant for the Cooper residence on June 29, 2016. During a search of the master bedroom, a duffle bag, which contained a box of .38 caliber bullets, was found. The bag was admitted as State's Exhibit 7, and the box of bullets was admitted as State's Exhibit 8. Teresa identified the duffle bag as belonging to Defendant, and the bullets as having been stored in Defendant's duffle bag. There were five rounds missing from the box of bullets. Photographs taken by Det. Durr on June 25, 2016, admitted as Defense Exhibits 1-2, showed the duffle bag located on top of a suitcase next to the bed, with some kind of red material on top. A photograph taken during the June 30, 2016 search, admitted as State's Exhibit 9 and Defense Exhibit 4, showed additional items on top of and around the duffle bag. Carla White, a firearms examiner at the North Louisiana Criminalistics Laboratory, testified that both the projectile recovered from Jeremy's right hip and the bullet recovered from the house were .38 caliber.

On May 3, 2018, the jury found Defendant guilty of the responsive verdict of manslaughter. A pre-sentence investigation was ordered. On July 24, 2018, Defendant was sentenced to 38 years' imprisonment at hard labor. Defendant has appealed his conviction.

DISCUSSION

Sufficiency of the Evidence

Through appellate counsel, Defendant argues that the State failed to sufficiently show that Jeremy Davis's death was the result of manslaughter committed by Defendant. According to Defendant, the testimony of Kaderrick Cooper is directly contradicted by the autopsy report and testimony of Dr. Frank Peretti. Defendant notes that Kaderrick testified that he witnessed Defendant shoot Jeremy in the back, while Dr. Peretti testified that the bullet entered Jeremy's shoulder and traveled in a downward angle toward his hip, which would not be possible if both parties were standing. Defendant also notes Teresa Cooper's testimony that there was a struggle between Defendant and Jeremy, while Kaderrick's testimony was that there was no struggle. Defendant argues that, because of the conflicting and irreconcilable differences in the eyewitness testimony and evidence, the State failed to sufficiently prove that he committed manslaughter.

In response, the State asserts that the verdict of manslaughter was supported by the evidence presented at trial. The state argues that the eyewitness testimony of two witnesses, testimony of investigating officers, expert testimony of Dr. Frank Peretti and Carla White, and seizure of a box of .38 caliber bullets from Defendant's room, was sufficient to sustain Defendant's conviction for manslaughter.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Bass , 51,411 (La. App. 2 Cir. 06/21/17), 223 So. 3d 1242. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So. 2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So. 3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So. 3d 297.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 01/26/00), 775 So. 2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson , 50,643 (La. App. 2 Cir. 06/22/16), 197 So. 3d 717, writ denied , 16-1479 (La. 05/19/17), 221 So. 3d 78. A reviewing court may not impinge on the factfinder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So. 2d 442.

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1).

Specific intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1) ; State v. Smith , supra ; State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So. 3d 129, writ denied , 12-2667 (La. 05/24/13), 116 So. 3d 659. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Smith , supra ; State v. Reed , 45,237 (La. App. 2 Cir. 05/26/10), 37 So. 3d 1116. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Smith , supra ; State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So. 3d 235, writ denied , 14-2631 (La. 09/25/15), 178 So. 3d 565.

La. R.S. 14:31 provides in part:

(A) Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

"Sudden passion" and "heat of blood" are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard , 486 So. 2d 106 (La. 1986) ; State v. Bratton , 49,434 (La. App. 2 Cir. 01/14/15), 161 So. 3d 937, writ denied , 15-0303 (La. 11/20/15), 180 So. 3d 317 ; State v. Williams , 44,977 (La. App. 2 Cir. 01/27/10), 32 So. 3d 902, writ denied , 10-0368 (La. 09/24/10), 45 So. 3d 1071. The appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Smith , 49,839 (La. App. 2 Cir. 05/20/15), 166 So. 3d 416, writ denied , 15-1244 (La. 06/03/16), 192 So. 3d 753.

Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Wright , 42,956 (La. App. 2 Cir. 03/05/08), 978 So. 2d 1062, writ denied , 08-819 (La. 10/31/08), 994 So. 2d 532. Even so, mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Free , 48,260 (La. App. 2 Cir. 11/20/13), 127 So. 3d 956, writs denied , 13-2978 (La. 05/30/14), 140 So. 3d 1174, 14-0039 (La. 09/19/14), 148 So. 3d 944 ; State v. Wright , supra.

Defendant was charged with second degree murder, but convicted by a jury of the responsive verdict of manslaughter. His arguments focus on the inconsistencies between the eyewitness testimony and the physical evidence. However, when viewing the evidence in light most favorable to the prosecution, a rational trier of fact could have found the essential elements of manslaughter proven beyond a reasonable doubt.

Teresa Cooper testified that the incident began with an argument between herself and her son Jeremy. She stated that Jeremy grabbed her by the neck, slammed her head against the wall, and choked her. Their argument was loud enough that her older son Kaderrick could hear it in his bedroom. There was testimony that Defendant interceded in the argument by firing a gun in the hallway, then following Jeremy into Kaderrick's bedroom, where the two men began arguing. Kaderrick testified that Jeremy had a violent past and stated that the two men often argued.

Dr. Peretti testified that the bullet entered Jeremy's back left shoulder and traveled downward to lodge in his right hip. Although Dr. Peretti was unable to state how the two parties may have been positioned at the time of the shooting, he did opine that they could not both have been standing based on the bullet's path, and opined that Jeremy could have been lying down or crouched over during a possible struggle. This testimony contradicted Kaderrick's testimony that Defendant shot Jeremy in the back as he ran away. Kaderrick also reported that he did not witness a struggle between Defendant and his brother, while Teresa testified that there was a struggle in the hallway during which the two men fell to the floor. Teresa's testimony was supported by that of Dr. Peretti.

Although the gun was not recovered by officers, a box of bullets matching the projectiles recovered from the scene and from the victim's body was recovered from Defendant's bedroom. Defendant argues that anyone could have placed the bullets there, as they were not located until five days after the shooting and because items surrounding the duffle bag had been moved. However, there is no evidence that the duffle bag had been moved or tampered with, and the officers had no reason to search Defendant's bedroom on the night of the shooting because they were looking for a weapon which had been taken from the home by Defendant.

The totality of the evidence, even taking into consideration the minor inconsistencies in the testimony of Teresa and Kaderrick, was sufficient to establish that an argument occurred, and that Defendant shot Jeremy Davis, causing his death. Officers testified to, and audio recordings established, Defendant's admissions of guilt on the night of the shooting. Based upon their verdict of manslaughter, the jury clearly found that the defense had shown that the shooting occurred in "sudden passion" or the "heat of blood." Because the State proved beyond a reasonable doubt the elements of the offense of manslaughter, this assignment of error is without merit.

Pro Se Assignment of Error

According to Defendant, his Sixth Amendment right to an unbiased and fair trial was violated when the State engaged in "trial by ambush" by failing to turn over all information and witnesses during discovery. Defendant argues that the state failed provide sufficient, prior pre-trial notice of Officer Michael Iman's testimony. He also contends that the free and voluntary hearing, which was conducted after the commencement of trial, was too late to provide proper notice of Officer Iman's damaging testimony. Specifically, Defendant contests the admission of Officer Iman's testimony regarding Defendant's statement to Officer Iman that, "I told that mother fucker to stop messing with me." He argues that, without the testimony of Officer Iman, the State failed to prove that he was guilty of anything except justifiable homicide. Defendant further argues that the State also failed to provide a 40-minute dash cam video in pre-trial discovery.

The rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony, to permit the defense to meet the state's case, and to allow proper assessment of the strength of its evidence in preparing a defense. However, the failure of the state to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. State v. Harris , 00-3459 (La. 02/26/02), 812 So. 2d 612 ; State v. Campbell , 46,888 (La. App. 2 Cir. 03/14/12), 86 So. 3d 204, writ denied , 12-1059 (La. 10/26/12), 99 So. 3d 641.

La. C. Cr. P. art. 716(B), in pertinent part states that:

Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.

In State v. Thomas , 39,194 (La. App. 2 Cir. 01/26/05), 892 So. 2d 161, writ denied , 05-0646 (La. 06/03/05), 903 So. 2d 455, the defendant complained that the state failed to give notice that it planned to use four oral inculpatory statements and that the trial court erred in allowing the admission of these statements. Thomas contended that he was prejudiced in that, because he did not know the state had this evidence, he rejected a plea offer of manslaughter which would have resulted in a less than lifetime sentence. The state contended that it had no obligation to tell the defendant who its witnesses were. This Court found that Thomas's argument that he might have entered a guilty plea to manslaughter had he been aware of these statements was purely speculative. The record showed that Thomas had been provided with a list of witnesses the state planned to call, and knew that several of those witnesses had been present when the shooting occurred.

During his testimony at trial, Officer Iman testified that, at the time of his arrest, Defendant said, "Well, I told that mother fucker to stop messing with me, and whatever else." Defendant argues that Officer Iman did not recall anything else that was discussed at that time, Officer Iman did not recall who read Defendant his Miranda rights, the dash cam video did not record this statement, and none of the surrounding officers had their body cameras turned on or activated.

A motion for discovery was filed by the defense on June 28, 2016, requesting the names of any witnesses and their statements. Supplemental answers to that motion show that the defense was provided with DVD's, crime scene video, dispatch calls, and photographs. A motion to determine that Defendant's statement was free and voluntary was filed on August 29, 2017, and a hearing was initially set for September 12, 2017. On March 9, 2018, the trial court ruled that statements made to Det. Karen McDonald were freely and voluntarily given, and a hearing on the statements made to Officer Michael Iman was set for April 30, 2018.

There is no evidence that Defendant or his counsel was unaware of Officer Iman or what statements he might testify to. Defendant was aware of the statements he had made to Officer Iman, the State turned over numerous DVD's, and a motion for a free and voluntary hearing as to the statements made to Officer Iman was filed on August 29, 2017, well before the start of trial.

On May 2, 2018, following the start of trial and prior to Officer Iman's testimony, the free and voluntary hearing was conducted. The trial court found that Defendant's statement to Officer Iman was freely and voluntarily given. The fact that this hearing was not conducted until after the start of trial is insufficient, on its own, to show prejudice to Defendant. This assignment of error is without merit.

CONCLUSION

For the reasons set forth above, Defendant's conviction and sentence are affirmed.

AFFIRMED.