author: WICKER, J.

text:
    STATE of Louisiana v. Carlos Alberto MONTERO, Sr.
    NO. 18-KA-397
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, Joshua K. Vanderhooft, Zachary Popovich
    COUNSEL FOR DEFENDANT/APPELLANT, CARLOS ALBERTO MONTERO, SR., Bertha M. Hillman
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WICKER, J.

Defendant, Carlos Alberto Montero, Sr., appeals his convictions and sentences for failure to maintain registration as a sex offender, two counts of indecent behavior with a juvenile under the age of thirteen, two counts of aggravated rape, and sexual battery of a juvenile under the age of thirteen. For the following reasons, we affirm defendant's convictions and sentences but remand the matter to the trial court for correction of errors patent.

STATEMENT OF THE CASE

On April 28, 2016, a Jefferson Parish Grand Jury indicted defendant with failing to maintain registration as a sex offender by failing to make his community notification in violation of La. R.S. 15:542 (count one); indecent behavior with a known juvenile (DOB 12/28/95), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:81 (count two); aggravated rape upon a known juvenile (DOB 10/11/99) in violation of La. R.S. 14:42 (count three); aggravated rape upon a known juvenile (DOB 11/30/00) in violation of La. R.S. 14:42 (count four); sexual battery upon a known juvenile (DOB 11/30/00), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:43.1 (count five); and indecent behavior with a juvenile (DOB 11/30/00), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:81 (count six). At his arraignment, defendant pled not guilty.

On April 13, 2017, the State filed a Notice of Intent to Introduce Evidence of Other and Similar Crimes, Wrongs and/or Acts Pursuant to Louisiana Code of Evidence Articles 404(B) and 412.2, that was granted on April 20, 2017. On November 13, 2017, the State amended count one of the indictment to reflect that defendant had previously been convicted of carnal knowledge of a juvenile in violation of La. R.S. 14:80, in case number 02-4098 in the 24th Judicial District Court on September 16, 2002.

On November 14, 15, and 16, 2017, the case was tried before a twelve-person jury that unanimously found defendant guilty as charged on all counts. On January 8, 2018, defendant filed a Motion for Post-Verdict Judgment of Acquittal, a Motion in Arrest of Judgment, and a Motion for A New Trial, which the trial judge denied. Thereafter, defendant waived sentencing delays and the trial court sentenced him to imprisonment at hard labor for ten years without benefit of probation, parole, or suspension of sentence for his conviction for failing to maintain his sex offender registration (count one); imprisonment at hard labor for seven years for each of his indecent behavior with a juvenile under the age of 13 convictions (counts two and six); life imprisonment without benefit of probation, parole, or suspension of sentence for his aggravated rape convictions (counts three and four); and imprisonment at hard labor for ten years without benefit of probation, parole, or suspension of sentence for his sexual battery of a known juvenile under the age of thirteen conviction (count five). The trial judge ordered the sentences to run concurrently with each other. This timely appeal followed.

FACTS

Carlos Montero, Jr., defendant's son, testified that he was living with his fiancée, M.L., and her four children (her oldest son, D.S.; her oldest daughter, T.S.; her youngest son, K.L., and her youngest daughter, V.L.) as a family since early 2006 at 1904 Kentucky Avenue in Kenner. Although Mr. Montero and M.L. are not married, M.L.'s children refer to him as their stepdad or stepfather and he is a father-figure to M.L.'s children. Mr. Montero further testified that he allowed his father, defendant, to move into their home in May of 2006. Mr. Montero acknowledges that he knew that his father had been previously convicted of carnal knowledge of a juvenile in 2002, but pointed out that defendant served his time for that crime and he desired to reconnect with his father.

Mr. Montero asserted that defendant moved out of the Kentucky Avenue residence at the beginning of 2007, moved back in after August of 2007 to an apartment behind the house, moved out in 2011, and moved back in again in October of 2015. Mr. Montero acknowledged that he and M.L. argued because M.L. did not want defendant living there; however, he insisted that defendant stay.

Mr. Montero testified that on January 8, 2016, he found a letter dated "November 12" in V.L.'s bedroom that was written by V.L. to her deceased father. In the letter, V.L. talked about her mother and Mr. Montero arguing, after which she said:

And I'm pretty sure you know about his dad. I'm also pretty sure you know what he did to me. I want to say I'm sorry I haven't told ma. I just don't her [sic] to be heartbroken. I know that she got raped when she was in her teens. So if I told her this, think about how she'll react. I'll feel horrible.

Mr. Montero stated that after he read the letter, he immediately texted V.L. and checked her out of school. He asked her about the letter and she disclosed to him that defendant had been sexually abusing her. Mr. Montero maintained that he did not immediately call the police as V.L. asked him not to tell anyone. He testified that he talked to T.L. and K.L. that night and that they told him about "stuff" that defendant had done to them also. He acknowledged that he and his brother were at the house for several days afterwards planning to kill defendant when Mr. Montero realized that was not the best course of action. Mr. Montero then contacted Kenner police and he and his family went to City Hall to report the sexual abuse. He explained that he did not report it from his home because he knew defendant "would run." Mr. Montero testified that he made a report and gave a statement.

Officer Brian Saucier of the Kenner Police Department testified that on January 12, 2016, he was dispatched to 1801 Williams Boulevard where Kenner City Hall is located and met with Mr. Montero and his family, who informed him that defendant had been sexually abusing three of M.L.'s children. Officer Saucier further testified that he later met with Detective Peter Foltz who became the lead detective, and proceeded to 1904 Kentucky Avenue to apprehend defendant.

Detective Foltz testified that in January of 2016, he met with Mr. Montero and his family, interviewed the children separately, and took a recorded statement from T.S., who was an adult at that time. Detective Foltz subsequently referred K.L. and V.L. to the Jefferson Children's Advocacy Center (CAC) where forensic interviews were conducted and videotaped. Detective Foltz testified that Mr. Montero informed him that he believed there were other family members whom defendant had sexually abused. Detective Foltz testified that Kelly Holder, one of those family members, later contacted him and disclosed allegations of sexual abuse by defendant from the 1980s.

T.S., age twenty-one at the time of trial, testified that she lived in Kenner with Mr. Montero, her mother, and her siblings, K.L., V.L., and D.S. She also testified that defendant moved into the house with them in 2006 or 2007, when she was about eleven or twelve years old and in the seventh grade. She explained that when defendant first moved in, he did not act inappropriately but that his behavior started to change in a way that made her feel uncomfortable.

T.S. also testified that in the early morning, before she would go to school, there were times when defendant would come and lie in bed with her, rub her hair, caress her, and try to kiss her neck to wake her up. T.S. remembered defendant climbing in bed with her and kissing her on the lips to wake her up in a sexual way. T.S. testified that on one occasion, when she was twelve or thirteen, defendant was kissing her on her neck, and when she asked him why he was doing that, defendant replied that he knew it gave her "goosebumps." She thought that occurred within a few months of defendant moving in. T.S. testified that after the "goosebump" situation, she told defendant something that made him stop, and the abuse stopped.

T.S. asserted that she did not tell anyone because the abuse had stopped and she knew Mr. Montero, her "stepdad," was happy to have his father back in his life and was trying to build a relationship with him, which she did not want to ruin. She testified that she regrets her decision not to tell anyone at the time it occurred.

K.L. testified that his date of birth is October 11, 1999, and that his siblings are D.S., T.S., and V.L. He also testified that defendant came to live with him and his family at 1904 Kentucky in 2006. K.L. remembered that when he was six or seven years old, he went into defendant's bedroom to watch a movie. While doing so, he fell asleep at the bottom of defendant's bed. K.L. testified that when he woke up, defendant's mouth was on his penis and defendant was performing "oral" on him. K.L. asserted that he had no idea what was going on at the time and that he went back to sleep. He stated that after he woke up again, he went to D.S.'s room and told D.S. and T.S. what happened but that they did not believe him. K.L. testified that a couple of years later, he told his grandmother, the first adult whom he told what defendant had done to him. He explained that a couple of days after that, his aunt asked him if it actually happened. K.L. told her it had, but she did not believe him. K.L. explained that his family kept asking, but maintained that he was lying. K.L. testified that he finally just told his grandmother and aunt that it was a nightmare because he did not like the confrontations. K.L. asserted that he never brought it up again until the instant case.

V.L. testified that her date of birth is November 30, 2000, and that she lives at 1904 Kentucky Street with her mother, M.L., her "stepdad," Mr. Montero, and her siblings, D.S., K.L., and T.S. She explained that defendant, Mr. Montero's father, came to live with them when she was approximately five or six years old. She recalled that the abuse did not start immediately after he moved in. V.L. asserted that when defendant came to live there, she was still sharing a room with her sister; however, she got her own room around August 2007, when her older brother turned thirteen years old. She stated that defendant sexually abused her but that she did not recall the first time. V.L. recalled that defendant kept looking at her "up and down." She testified that defendant abused her after he moved back into the house in 2007 when she had her own room.

V.L. testified that one night, defendant came in, lay down with her, and put his fingers on her vagina. She did not know how old she was when that occurred. V.L. further testified that some nights, defendant came into her room and "would give" her oral sex, which she described as defendant putting his tongue in and on top of her vagina. She also asserted that defendant put his penis into her vagina. V.L. remembered that one night, defendant had some of his penis inside of her vagina but that "he wasn't fully penetrated." She recalled that it hurt. V.L. testified that defendant put a condom on his penis. She stated that she was approximately seven to nine years old when these incidents occurred.

V.L. maintained that the abuse stopped when defendant moved out of the house in 2011. She asserted that the abuse occurred often, "five out of seven days." V.L. remembered that defendant would go offshore for work and not be home for an extended period of time. She stated that defendant left a vibrator for her in the "back house" in their backyard and told her that she could use it whenever she wanted to. V.L. indicated that she never used it. V.L. testified that the abuse happened at night when everybody was asleep; however, she recalled one time that it occurred during the day. She explained that one time, when she was in the fourth grade and was "nine turning ten," she was checked out of school and went home because defendant was painting her room. She stated that nobody was home except her and defendant and that he was "trying to give" her oral sex. She stated that while defendant was performing oral sex on her that time, she heard K.L. come in, so she told defendant to stop, which he did. V.L. asserted that although defendant stopped that time, he performed oral sex on her many times, "maybe" more than fifty times. V.L. recalled that when defendant was performing oral sex on her she would tell him to stop, but he would not. She stated that defendant did not threaten her but that he would pull her hair when she was with her male cousins or playing around with her brothers. V.L. testified that when she was a kid, defendant used to give her candy and told her not to tell anyone. She said that up until 2011 when defendant moved out, she never told anyone about the sexual abuse as she felt physically intimidated by him and was scared of him.

V.L. also testified that defendant showed her pornography. She recalled that one time she was watching the Disney Channel, and defendant came in, changed the channel, and put pornography on. V.L. described it as a man and a woman having sex on television. She recalled that defendant said that he was glad he could show it to her because she was "mature." V.L. indicated that the sexual abuse occurred from the time she was approximately six years old until she was approximately eleven years old. She asserted that when it started, she did not know what was happening and that when it stopped, she got the sense that it was wrong.

V.L. also recalled that defendant masturbated in front of her more than one time. She explained that defendant would grab her hand, place it on his penis, and put his hand on top of hers until something would come out of defendant's penis. V.L. recalled when her "stepdad," Mr. Montero, checked her out of school and asked her about a letter she had written about the sexual abuse. She asserted that she told Mr. Montero everything that had been happening for years and that she asked him not to tell anyone.

K.H., defendant's niece, testified that in 2016, Mr. Montero, her cousin, contacted her and asked her about any other sexual abuse by defendant. K.H. asserted that in 2016, she called a Kenner detective and gave a statement over the phone that she was the victim of prior sexual abuse by defendant. She stated that the abuse began on her fifth birthday in 1982. K.H. recalled that defendant came home that day wearing his military suit, that he gave her a teddy bear, and that she was excited to see him as they shared the same birthday. She stated that her parents were divorced and that defendant babysat her and her sister while her mother went to work nights in a bar. K.H. explained that defendant got drunk that night and that after her mother went to work, defendant came up the steps and started "oral molesting" her. She testified that defendant also similarly orally molested her sister in the upstairs bedroom that they shared.

K.H. maintained that defendant molested her orally at first, explaining that he went between her legs with his face and put his mouth and tongue on her vagina. She testified that she witnessed defendant do the same thing to her sister at night. K.H. asserted that she could not tell her mother because defendant threatened her and her sister that he would hurt their mother. She recalled that she was eight or nine when she told her mother's boyfriend about the abuse. K.H. said that she told him not to say anything but that the boyfriend told her mother. After that, her mother tried to keep them away from defendant. K.H. testified that the abuse happened from the ages of five to seven when her mother was working and that the abuse happened "weekly." She stated that when she called the police to find out where defendant lived, sometime during 2011 or 2012, she told a police officer over the phone that defendant had abused her but no report was prepared and nothing ever happened.

Erika Dupepe testified that she is employed by the District Attorney's Office and assigned to the Jefferson CAC. She further testified that she conducted forensic interviews with K.L. and V.L. separately on January 25, 2016, which were recorded and played for the jury. The interviews of K.L. and V.L. provided accounts of the sexual abuse by defendant similar to their trial testimony.

Dr. Jamie Jackson testified that she is a child abuse pediatrician with the Audrey Hepburn Care Center through Children's Hospital. The State and the defense stipulated that she was qualified as an expert in the field of child abuse pediatrics. Dr. Jackson stated that in February of 2016, she examined K.L. and V.L. Dr. Jackson explained that most children who are sexually abused do not tell anyone right away and that there were many reasons for delayed disclosure, including naivety, the lack of realization that the abuse is wrong, embarrassment, shame, fear, guilt, threats, or the fact that most of the time the perpetrator is someone who has access to the child who the child loves or trusts. She also explained that disclosure is a process with the child, who may reveal a little at a time. Dr. Jackson maintained that K.L. and V.L. provided a clear history of child sexual abuse.

Sergeant Patrick Smith of the Jefferson Parish Sheriff's Office (JPSO) testified that he was commander of the fingerprint identification records section and the sex offender registry. He further testified that defendant is required to register as a sex offender because he had been previously convicted of a sex crime, felony carnal knowledge of a juvenile. Sergeant Smith noted that defendant was required to register as a "tier one" offender for fifteen years from the date of release from incarceration, which was 2006. He asserted that in 2015 and 2016, defendant was registered at 488 Hamilton Street in Gretna. He maintained that defendant never came into the office in 2015 or 2016 to register a new address, even though defendant was living at 1904 Kentucky Street in Kenner. Sergeant Smith also testified that if an offender owns or operates a vehicle, that vehicle also has to be registered with his office. He identified a copy of defendant's vehicle registration for 2015, which also showed the address of 488 Hamilton Street in Gretna. Sergeant Smith asserted that at no time in 2015 or 2016 did defendant update his vehicle registration to show that he was living in Kenner. He maintained that when defendant was arrested in connection with the instant case, defendant gave his address as 1904 Kentucky Street in Kenner.

At trial, the State and the defense stipulated to State's Exhibit 5, a certified conviction record of defendant, reflecting that defendant was convicted on September 16, 2002, in case number 02-4098 in the 24th Judicial District Court, for carnal knowledge of a juvenile in violation of La. R.S. 14:80, and that defendant, who was born on May 9, 1963, is the same individual who is charged in the instant case with failure to register as a sex offender in count one.

LAW AND ANALYSIS

In his sole assignment of error on appeal, defendant contends that the trial judge erred in allowing evidence of his prior 2002 conviction for carnal knowledge of a juvenile.

On April 13, 2017, the State filed a "Notice of Intent to Introduce Evidence of Other and Similar Crimes, Wrongs, And/Or Acts Pursuant to Louisiana Code of Evidence Articles 404(B) and 412.2," seeking to introduce evidence of defendant's prior 2002 conviction for carnal knowledge of a juvenile in violation of La. R.S. 14:80. In its notice of intent, the State contended that defendant's prior conviction-which reflects that defendant, at 38 to 39 years old, was having consensual sex with a thirteen-year-old female from February to May 2002-is relevant to prove defendant's intent as to his indecent behavior with a juvenile charges, as well as his lustful disposition toward children pursuant to La. C.E. art. 412.2. The trial court conducted a hearing and, on April 20, 2017, the trial judge granted the State's notice of intent to introduce evidence of defendant's 2002 conviction.

In his sole assignment of error, defendant contends that the trial judge erred in allowing the State to introduce evidence of the 2002 conviction for carnal knowledge of a juvenile, asserting that the 2002 crime was irrelevant because it involved consensual sexual intercourse with the minor.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. State v. Williams , 09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 363, writ denied , 09-2565 (La. 5/7/10), 34 So.3d 860. However, such evidence may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule when it tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character. State v. Greenup , 12-881 (La. App. 5 Cir. 8/27/13), 123 So.3d 768, 772, citing State v. Dauzart , 02-1187 (La. App. 5 Cir. 3/25/03), 844 So.2d 159, 165.

Specifically, in sex abuse cases, the "lustful disposition" exception applies as set forth in La. C.E. art. 412.2, which provides in part:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Accordingly, pursuant to La. C.E. art. 412.2, evidence of a prior sexual offense is admissible to show a defendant's lustful disposition towards children if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. State v. Olivieri , 03-563 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 218 ; see also La. C.E. art. 403. Article 412.2 was enacted to loosen restrictions on "other crimes" evidence and to allow evidence of "lustful disposition" in cases that involve sexual offenses. Id. at 318. In enacting Article 412.2, "the Legislature did not see fit to impose a restriction requiring such evidence to meet a stringent similarity requirement for admissibility." Id. at 317. Absent a clear abuse of discretion, the trial judge's determinations concerning relevancy and admissibility of such evidence should not be overturned. State v. J.M. , 14-579 (La. App. 5 Cir. 2/11/15), 189 So.3d 1079, 1089 ; see also State v. Cosey , 97-2020 (La. 11/28/00), 779 So.2d 675, 684, cert. denied , 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001).

Upon review of the entirety of the record in this matter, we find that evidence of defendant's 2002 conviction for carnal knowledge of a juvenile, involving defendant at age 38 and 39 engaging in sexual conduct with a thirteen-year-old girl, is squarely admissible under La. C.E. art. 412.2 to show defendant's lustful disposition toward children. First, evidence of the prior conviction was a necessary element for the State to prove that defendant failed to maintain his registration as a sex offender under La. R.S. 15:542 and, further, the probative value of this other crimes evidence was not substantially outweighed by unfair prejudice, confusion, undue delay, or waste of time. Moreover, the record reflects that the trial judge provided the jury with a limiting instruction at the conclusion of trial. See State v. J.M. , 14-579 (La. App. 5 Cir. 2/11/15), 189 So.3d 1079, 1090. Accordingly, we find that the trial judge did not abuse her discretion in ruling admissible defendant's prior 2002 conviction for carnal knowledge of a juvenile. This assignment is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to 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. 5th Cir. 1990). The record reflects the following errors patent:

Re-arraignment

On April 6, 2017, the State amended count one to reflect that defendant failed to maintain his registration as a sex offender by failing to provide his address of residence instead of by failing to make his community notification, and it amended counts three through six to reflect that the offenses occurred on or between January 1, 2006 and December 31, 2011. On November 13, 2017, the State amended count one to add that defendant had previously been convicted of carnal knowledge of a juvenile in violation of La. R.S. 14:80 in case number 02-4098 in the 24th Judicial District Court on September 16, 2002. It does not appear that defendant was re-arraigned after the indictment was amended.

The purpose of an arraignment is to inform the defendant of the substance of the crime he is charged with La. C.Cr.P. art. 551. A re-arraignment is only required after amendment of a bill of information if the substance of the charge is changed. State v. Aulph , 47,966 (La. App. 2 Cir. 5/22/13), 114 So.3d 610, 617 ; see also State v. Tillery , 14-429 (La. App 5 Cir. 12/16/14), 167 So.3d 15, 23-24, writ denied , 15-0106 (La. 11/6/15), 180 So.3d 306. Nevertheless, the failure to rearraign a defendant on an amended charge is waived if the defendant enters the trial without objecting to the omission. State v. Besse , 11-230 (La. App. 5 Cir. 12/28/11), 83 So.3d 257, 268, writ denied , 12-0292 (La. 5/25/12), 90 So.3d 409. In the instant case, it appears that defendant entered the trial without objecting to the omission. Thus, defendant has waived any objection to the trial court's failure to rearraign him on the amended indictment.

Mandatory Fine

The transcript does not reflect that the trial judge imposed the mandatory fine in connection with count one. La. R.S. 15:542.1.4(A)(1) requires a fine of not more than $1,000, for failure to maintain sex offender registration. This Court has held that a statute, providing for a fine of "not more than" a specified amount, does require a mandatory fine. However, this Court has noted that the matter is not free from doubt. See State v. Kerlec , 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied , 07-1119 (La. 12/7/07), 969 So.2d 626.

The Louisiana Supreme Court has held that an appellate court has the authority under La. C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. State v. Campbell , 08-1226 (La. App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied , 09-1385 (La. 2/12/10), 27 So.3d 842.

However, often in indigent defender matters, this Court has decided not to use this authority. Id. In State v. Horton , 09-250 (La. App. 5 Cir. 10/27/09), 28 So.3d 370, 376, this Court declined to remand the matter for imposition of the mandatory fine due to the defendant's indigent status. This Court noted that the defendant was represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases.

In the instant case, it appears that defendant is indigent because he is being represented by the Louisiana Appellate Project. Because defendant is indigent, we decline to remand the matter for imposition of the mandatory fine. See State v. Bennett , 10-393 (La. App. 5 Cir. 3/29/11), 63 So.3d 251, 260, writ denied , 11-0931 (La. 10/21/11), 73 So.3d 381.

Post-Conviction Relief Advisal

The transcript does not reflect that the trial judge advised defendant of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8 ; however, the sentencing minute entry reflects that the trial judge advised defendant of those provisions. The transcript prevails. See State v. Lynch , 441 So.2d 732, 734 (La. 1983). Accordingly, we hereby advise defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Brooks , 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied , 12-2478 (La. 4/19/13), 111 So.3d 1030.

Concurrent Sentences

The transcript reflects that the trial judge ordered the sentences on counts one through six to run concurrently with each other and "concurrently at the end of any other sentence Mr. Montero is serving." However, the sentencing minute entry reflects that the trial judge ordered the sentences to run concurrently "with any other sentence the Defendant may be serving," and the uniform commitment order (UCO) indicates that the sentences are to run concurrently with "any other sentence the Defendant may be serving." The transcript prevails. See Lynch, supra . Because there are inconsistencies between the sentencing minute entry, the UCO, and the transcript, we find it necessary to remand the matter to the trial court and instruct the trial judge to correct the sentencing minute entry and the UCO to conform to the transcript. The Clerk of Court for the 24th Judicial District Court is further ordered to transmit the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Garcie , 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290.

Dates of Offenses/UCO

The UCO indicates that the offense date in counts two through six was January 1, 2006. However, the State alleged in the amended indictment that the offenses for those counts occurred on or between January 1, 2006 and December 31, 2011. The evidence at trial was unclear as to exactly when the offenses began; however, it appears that the offenses began in 2006 or 2007 after defendant moved into the house. The evidence was clear that the offenses stopped occurring when defendant moved out of the house in 2011. As such, we remand the matter to the trial court for correction of the UCO to show that the offenses occurred on or between January 1, 2006 and December 31, 2011. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See Garcie , supra .

CONCLUSION

For the foregoing reasons, we affirm defendant's convictions and sentences.

However, we remand this matter to the trial court for correction of errors patent in accordance with this opinion.

AFFIRMED; REMANDED

      On April 6, 2017, the State amended count one of the indictment to reflect that defendant failed to maintain his registration as a sex offender by failing to provide his address of residence, and it amended counts three through six to reflect that the offenses occurred on or between January 1, 2006 and December 31, 2011.

      The State filed three, separate "Notice of Intent to Introduce Evidence of Other and Similar Crimes" concerning (1) his prior conviction for indecent behavior with a juvenile; (2) testimony from his niece, K.H., as to prior sexual abuse by defendant; and (3) testimony from his stepdaughter, Y.M., concerning prior sexual abuse by defendant. On appeal, defendant challenges only the trial court's ruling granting the state's notice of intent as to defendant's prior conviction for indecent behavior with a juvenile.

      See errors patent discussion.

      The minor victims and their relatives will be referred to by their initials to protect the victims' identities. See La. R.S. 46:1844(W)(3) ; State v. Clifton , 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 695.

      Detective Foltz stated that Ms. Holder told him she reported those incidents years later to law enforcement; however, he was unable to locate any reports.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    Lisa TAYLOR v. CHIPOTLE MEXICAN GRILL, INC., Lauricella Land Company, LLC, Elmwood Village Center, LLC, Lauricella & Associates, Inc., Elmwood Retail Properties, LLC and Travelers Insurance Company
    NO. 18-CA-238
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, LISA TAYLOR, David I. Courcelle, Scott C. Stansbury, Metairie, Bernard A. Dupuy
    COUNSEL FOR DEFENDANT/APPELLEE, CHIPOTLE MEXICAN GRILL, INC., LAURICELLA LAND COMPANY, LLC, ELMWOOD VILLAGE CENTER, LLC, LAURICELLA & ASSOCIATES, INC., ELMWOOD RETAIL PROPERTIES, LLC AND TRAVELERS INSURANCE COMPANY, Stephanie McLaughlin, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   GRAVOIS, J.

In this trip and fall case, plaintiff, Lisa Taylor, appeals a summary judgment granted in favor of defendants, Lauricella Land Company, LLC, Lauricella & Associates, Inc., Elmwood Village Center, LLC, Elmwood Retail Properties, LLC, and Travelers Property Casualty Company of America ("defendants"), dismissing her suit with prejudice. In her petition for damages, Ms. Taylor alleged that she sustained injuries after she tripped and fell on an expansion joint in the concrete parking lot adjacent to the Chipotle restaurant belonging to Chipotle Mexican Grill of Colorado, L.L.C. ("Chipotle") on Clearview Parkway in Elmwood, Jefferson Parish, Louisiana. On appeal, Ms. Taylor argues that the trial court erred in granting judgment in favor of defendants, contending that genuine issues of material fact remain outstanding regarding whether the expansion joint was unreasonably dangerous or open and obvious. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 16, 2013, Ms. Taylor was on her way home to Avondale from her workplace in Metairie when she decided to stop at the Chipotle restaurant to pick up dinner to bring home. She testified in her deposition that she had stopped at this particular Chipotle restaurant a couple of times before to pick up food. After she parked her car, Ms. Taylor traversed the parking lot to the entrance of the Chipotle restaurant, but as she walked by the handicapped parking space, she stepped on an expansion joint in the parking lot, which caused her wedge shoe to tip sideways. Ms. Taylor tripped and fell, breaking her arm, as well as sustaining bruises and scrapes to her leg. Her injuries were treated that evening at a hospital. Ms. Taylor's arm required surgery to repair two broken bones with a plate and screws.

Ms. Taylor filed suit against defendants and Chipotle on July 15, 2014, alleging that the expansion joint that she tripped upon was a defect in the parking lot that was unreasonably dangerous to pedestrians.

After discovery was conducted, defendant Chipotle moved for summary judgment on the basis that it had no legal or contractual responsibility to maintain the parking lot where the accident occurred. Chipotle's motion for summary judgment was granted, dismissing it from the case with prejudice. This judgment was not appealed and is final.

The remaining defendants moved for summary judgment on July 20, 2017, alleging that the expansion joint in question did not pose an unreasonable risk to pedestrians as a matter of law because the depth and measurements of the joint complied with relevant safety codes, as determined by defendants' expert, William Argus, AIA, an architect, following an inspection of the expansion joint. Defendants supported their motion for summary judgment with Ms. Taylor's deposition, the expert report of Mr. Argus, as well as photos of the parking lot and the expansion joint. Defendants further argued that the expansion joint was open and obvious, and thus did not pose an unreasonable risk of harm to pedestrians.

Ms. Taylor opposed defendants' motion for summary judgment, supporting her contention that the expansion joint was unreasonably dangerous with the report of her expert witness, Ladd P. Ehlinger, AIA, also an architect.

The matter was heard on November 28, 2017, after which the trial court took the matter under advisement. The trial court rendered a written judgment on December 13, 2017, granting summary judgment in favor of all remaining defendants and dismissing Ms. Taylor's suit with prejudice. The trial court did not issue reasons for judgment. This timely appeal followed.

On appeal, Ms. Taylor argues that genuine issues of material fact remain outstanding regarding whether the expansion joint she tripped on was unreasonably dangerous, noting that her expert concluded that the depth of the expansion joint exceeded permissible values as found in relevant building and construction codes. She also notes the discrepancies in the measurements of the joint contained in the parties' experts' reports. She also argues that a material issue of fact remains as to whether the expansion joint was open and obvious, because the fact of the elevation differences was not apparent unless inspected at close range.

ANALYSIS

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if 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). A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co. , 08-1491 (La. 4/3/09), 9 So.3d 780, 784.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co. , 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger , 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 352 ; Sarasino v. State Through Department of Public Safety and Corrections , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 927. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp. , 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Ms. Taylor's claim is governed by Article 2317.1 of the Louisiana Civil Code, which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Article 2317.1 actions require proof that the thing was in the defendant's custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendant knew or should have known of the defect.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores , 97-1174 (La. 3/4/98), 708 So.2d 362, 365. As the court noted in Reed , the issue must necessarily be resolved on a case-by-case basis due to the "plethora" of factual questions and other considerations involved.

In Reed , the Supreme Court considered the issue of whether the defendants were liable for a plaintiff's injuries after she tripped and fell after walking over an expansion joint in a concrete parking lot, similar to the one at issue in this case. The plaintiff's expert testified at trial that there were vertical height differences of ¼ to ½ inches along the expansion joint, and that the greater differential of ½ inch was unreasonably dangerous. The trial court held for the plaintiff, which judgment was affirmed by the court of appeal. The Supreme Court, however, reversed on the merits, citing to its recent opinion in Boyle v. Board of Supervisors, Louisiana State Univ. , 96-1158 (La. 1/14/97), 685 So.2d 1080, wherein the Court found that vertical differences alongside of a sidewalk joint between ½ inch and 1 inch did not pose a risk of unreasonable harm to pedestrians. In that case, the Court found that the trial court failed to undertake a risk/utility analysis before finding that the height difference presented an unreasonable risk of harm. The Court noted that the finding of a defect alone, i.e. , the vertical differences in the sidewalk joint, was not a sufficient analysis to establish liability. The defect must also present an unreasonable risk of harm. Boyle , 685 So.2d at 1083. The Court then undertook the risk/utility analysis that the trial court had failed to perform, specifically noting the social utility of paved sidewalks, the cost to repair not only the joint in question but all sidewalk joints on campus with height differentials, as well as considering the lack of accidents at this particular sidewalk joint in a high foot-traffic traffic area, which last factor the trial court had specifically refused to consider. Boyle , 685 So.2d at 1083-84. The Court concluded that the sidewalk joint in question was not unreasonably dangerous, and thus reversed the verdict for the plaintiff, finding no liability on the part of the defendant-owner. Boyle , 685 So.2d at 1084.

The Reed Court, before considering its prior holding in Boyle , noted that "[i]t is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm." Reed , 708 So.2d at 363.

After considering Boyle 's analysis and conclusions, the Court went on to consider the risk/utility analysis of paved parking lots and expansion joints:

As to weighing the social utility and cost of repair, the utility of paved parking lots is clearly apparent as unpaved parking lots would present far more hazards: potholes, wheel ruts, erosion damage, and infinite variation in elevation. As to the specific utility of expansion joints, they are necessary for safety and for maintenance of larger paved surfaces. The expansion joints allow for the concrete to expand and contact as it heats and cools due to weather. Absent the joints, the concrete blocks would contract and subsequently crack and split in the cold. Subjected to heat, the concrete would press against each other, cracking, shifting and buckling, which would produce far more hazardous deviations than the minor ¼ to ½ inches here. Additionally, the cost of maintaining such an area would be prohibitive as it would necessitate frequent replacement of the fragmented concrete blocks. The utility of the expansion joint is clear.

Reed , 708 So.2d at 366. The Court went on to hold that the cost of repair necessarily was not merely to correct the elevation differences of the joint in question, but of all joints with elevation differences, as a defendant would not be able to predict the exact place where someone might fall. Such cost, the court found, would be "staggering." Id. Finally, the Court considered that the size of the defect was smaller than the one considered in Boyle and found not to be unreasonably dangerous. Id.

In the present case, defendants supported their motion for summary judgment with Ms. Taylor's deposition and the report of their expert architect, Mr. Argus. Mr. Argus submitted both a preliminary report, made after an initial inspection of the particular expansion joint on August 21, 2015, and a final report with attachments, including measurements he took at a second site visit on March 14, 2017. In his initial visit, Mr. Argus measured the expansion joint to be 1? inches wide, with a black sealant/tar-like filler material. He found that the edges of the joint (each side of the filler material) rose approximately ? inch (+/-) above the filler material surface. At his second visit, he measured the joint's width at 2? inches wide, with a vertical depth of ? to 3/16 inches to ¼ inches.

Additionally, in his 2017 report Mr. Argus noted that it did not appear that any other slip and fall incident has occurred at the expansion joint in the parking lot since the building was opened in 2012, except for this incident. Attached to his final report were his notes and sketches from his 2015 site visit, as well as notes, sketches, and photographs from his 2017 site visit, Ms. Taylor's deposition, and research materials upon which he relied to compile his report. Mr. Argus cited to the applicable building codes in his report, though contending that while the codes were somewhat silent with regard to expansion joints specifically, they did provide guidance with regard to what height discrepancies would be considered a tripping hazard. Mr. Argus concluded that the expansion joint's measurements fell within an acceptable range of vertical differences under the relevant codes.

Ms. Taylor opposed the motion for summary judgment with the expert report of Mr. Ehlinger. He inspected the expansion joint on September 8, 2017, and determined that the expansion joint exceeded the maximum depth and width permissible in the walking surface for "holes and abrupt vertical edges in the required means of egress with no visual warnings" and thus presented an unreasonable risk of harm to pedestrians. He measured the expansion joint horizontally as 2? inches wide. The vertical depth of the joint measured 17/32 inches deep to 33/64 inches deep to the top of the sealant in the joint. He found that the sealant which comprised the expansion joint gave way (compressed) to "perhaps" an additional ? inch in depth, when weight was placed upon it. The top of the sealant was "not sticky and is dry to the touch." He noted that the concrete edges of the joint were radiused on both sides at approximately a ¼ inch radius, which he opined made the joint edges steeper than the 1:2 horizontal slope of the ½ inch high permissible beveled joint depicted in the LSC (Life Safety Code), the ADAAG (Americans with Disability Act Accessibility Guidelines - 1991 Edition) and the ANSI (American National Standards Institute) Al 17.1 Handicapped Code. Mr. Ehlinger's report did not discuss the area's accident history.

Though the trial court did not issue written reasons for judgment, the parties argued the applicability of Reed and its progeny. It is apparent from its ruling granting summary judgment to defendants that the trial court found the expansion joint in question did not pose a risk of unreasonable harm. A comparison of the expert reports' measurements of the expansion joint, though slightly different, do not create outstanding issues of material fact. Both experts measured the width of the joint as 2? inches. Defendant's expert measured the depth of the joint as up to ½ inches deep. Ms. Taylor's expert measured the joint as up to 33/64 inches deep, with "perhaps" an additional ? inch compression. Assuming the trial court accepted Ms. Taylor's measurements, which differ from defendant's measurements by 1/32 of an inch regarding depth of the joint, these values show a smaller vertical distance than the one found not unreasonably dangerous in the sidewalk joint in Boyle , supra.

Ms. Taylor next contends that the expansion joint in question was not open and obvious because a pedestrian would have to "get down on their hands and knees to inspect the expansion joint" in order to determine the variances in the surface height of the panels on either side of the joint. Ms. Taylor argues that there were no warning signs to alert pedestrians walking to the restaurant where the expansion joint was located. She argues that according to her expert, an expansion joint such as this one would not be in most pedestrians' "cone of vision," thus requiring a visual warning to call it to pedestrians' attention, which visual warning was not present.

As this Court previously stated in Christiano v. S. Scrap Recycling , 13-595 (La. App. 5 Cir. 12/27/13), 131 So.3d 1059, 1063-64 :

Generally, a defendant has no duty to protect against an open and obvious hazard. Eisenhardt v. Snook , 08-1287 (La. 3/17/09), 8 So.3d 541, 544. In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. Broussard v. State ex rel. Office of State Bldgs. , 12-1238 (La. 4/5/13), 113 So.3d 175, 192. If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous. Id. at 188. The focus on whether an alleged defect is open and obvious is "on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge."

Photographs of the expansion joint in question were made by both experts and were attached to their expert reports. The photographs clearly show the expansion joint in question, as well as other nearby expansion joints. The subject expansion joint, which was measured as 2? inches wide, was filled with a dark sealant material that clearly contrasted with the lighter colored concrete of the parking lot. The length of the joint was not measured, but the photographs clearly show that the joint was many feet long between two concrete panels. Photographs of the parking lot show that this expansion joint and others were a regular feature in the parking lot. The presence of the expansion joint was clearly visible, and thus open and obvious. Contrary to Ms. Taylor's assertion, the ability to discern the specific measurements of the differences in elevation of the expansion joints relative to the concrete is not the legal definition of "open and obvious," given the Supreme Court's recognition that "surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet." Reed , supra , 708 So.2d at 363.

The law is clear that expansion joints enjoy a positive utility in concrete paved parking lots, and that pedestrians cannot expect pristine and perfectly level surfaces in a paved parking lot, and that the vertical difference between the concrete slab and expansion joint in this case, 33/64 of an inch +/- ? of an inch (accepting Ms. Taylor's expert's measurements for the sake of argument), is one that has been recognized by the Supreme Court in Boyle as not posing an unreasonable risk of harm to pedestrians. These factors, combined with a lack of accidents at this location, support the trial court's judgment.

Accordingly, after a thorough de novo review of the record and application of the relevant law, we find that no genuine issues of material fact remain outstanding and defendants are entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the judgment on appeal granting defendants' motion for summary judgment is hereby affirmed.

AFFIRMED

JOHNSON, J., DISSENTS WITH REASONS

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion and find there is a genuine issue of material fact that remains in this matter that should preclude summary judgment at this juncture.

In the summary of Lisa Taylor's argument to this Court, the majority opinion simply states, "Ms. Taylor argues that genuine issues of material fact remain outstanding regarding whether the expansion joint she tripped on was unreasonably dangerous, noting that her expert concluded that the depth of the expansion joint exceeded permissible values as found in relevant building and construction codes." The opinion then proceeds to address whether the expansion joint was unreasonably dangerous based upon its depth. However, Ms. Taylor actually argues that the paving expansion joint in this matter exceeded the maximum width and depth permissible for a walking surface, not just the depth. In my opinion, the cases relied upon by the majority opinion- Reed v. Wal-Mart Stores, 97-1174 (La. 3/4/98), 708 So.2d 362, and Boyle v. Board of Supervisor, Louisiana State Univ. , 96-1158 (La. 1/14/97), 685 So.2d 1080 -while appropriate for an analysis for vertical height differentials, are distinguishable from this matter that contests a combination of vertical and horizontal differentials.

Ms. Taylor's expert's determination that the expansion joint's condition exceeded the maximum width and depth permissible posed a genuine issue of material fact that has not been resolved by the courts. Furthermore, the risk-utility analysis cited by the majority opinion is procedurally considered at trial because it is a determination of fact, and therefore, that analysis is not appropriate for summary judgment. (See , Broussard v. State ex rel. Office of State Bldgs. , 12-1238 (La. 4/5/13), 113 So.3d 175, 184, where the Louisiana Supreme Court held that the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations when using the risk-utility balancing test.)

When considering whether the expansion joint in question was open and obvious, I disagree with the majority opinion's conclusion. Again, the majority opinion solely focuses its analysis on the vertical depth of the expansion joint, rather than considering the vertical and horizontal differentials. In my opinion, the vertical and horizontal differentials distinguish this matter from the case relied upon by the majority, Boyle , supra , and pose a genuine issue of material fact for the trial court to determine whether the alleged defect in the expansion joint was open and obvious.

For the foregoing reasons, I would reverse the trial court's judgment that rendered summary judgment in favor of the defendants and remand the matter for further proceedings.

      Defendants' custody or garde over the parking lot is not contested.

      Both the Reed and Boyle courts found that the applicable standard of review in those cases, which concerned the mixed question of law and fact regarding whether the defect was unreasonably dangerous, was manifest error. However, we note that in both Reed and Boyle there was a trial, unlike in this case in which a summary judgment was granted. Hence, the applicable standard of review in this matter is de novo , as noted above.

      Mr. Argus noted in his final report, which was compiled after a second site visit and review of Ms. Taylor's deposition, that the location where Ms. Taylor said she fell, designated on Photo Exhibit 1, was not consistent with the location, on Photo Exhibit 2, where she said she fell. Therefore, he inspected and measured the expansion joint at both locations.

      The building codes that Mr. Argus referenced in his reports were the International Building Code ("IBC"), the National Fire Protection Association ("NFPA") 101-Life Safety Code, and Americans with Disabilities Act Accessibility Guidelines ("ADAAG").

      Mr. Ehlinger's report noted that his measurements differed from those taken by Mr. Argus, defendants' expert, concluding that Mr. Argus may have measured a different location, but also noted that the width and depth of the expansion joint will vary with temperature.


author: CHAISSON, J.

text:
    The PARISH OF ST. JAMES and the St. James Parish School Board v. Patricia BELLANGER, et al.
    NO. 18-CA-395
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, STERLING JAMES, ET AL, Vercell Fiffie
    COUNSEL FOR PLAINTIFF/APPELLEE, PARISH OF ST. JAMES, ET AL, Cody M. Martin, Gonzales
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

In this case arising from a property dispute in Vacherie, Louisiana, Sterling James, Sr. , appeals a March 9, 2018 judgment of the trial court in favor of Parish of St. James ("the Parish") and St. James Parish School Board ("the School Board"). For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 24, 2017, the Parish and the School Board filed a petition for declaratory judgment and for temporary restraining order, preliminary and permanent injunctions against Mr. James and other landowners in which they alleged that the Parish and the School Board had for more than twenty-two years been collectively maintaining, as a public road, a limestone bus turnaround at the end of a paved street commonly known as Ash Street. The Parish and the School Board aver that the initial construction of the extension of Ash Street, which was accomplished entirely and exclusively by Parish personnel using Parish labor, material, and machinery, in order that school buses could safely traverse the property, and the continued maintenance of the roadway, satisfies the requirements of La. R.S. 48:491 as a tacit dedication of the road to the Parish for public use.

In response to this petition, Sterling James, Sr., Agnes James-Harris, and the Estate of Joseph James ("the James Family") filed an answer and reconventional demand in which they argued that at no time did they give the Parish or the School Board permission to use their property as a roadway and that the Parish's and the School Board's use of the roadway was an illegal taking under the law. The James family sought damages for tortious interference with the peaceful possession of their property. The Parish and the School Board answered by denying these allegations and asserting affirmative defenses.

Prior to the trial, the Parish and the School Board filed a peremptory exception of prescription to the James Family's reconventional demand. At the movers' request, this exception was taken under advisement by the trial court after all evidence had been submitted at trial.

Following a two-day bench trial, during which the court heard testimony from multiple witnesses and admitted into evidence work orders, photos, maps, surveys, letters, and other property instruments, the trial court, on March 9, 2018, rendered judgment with detailed written reasons in which it found that the gravel portion of Ash Street at issue was tacitly dedicated to the Parish and the School Board pursuant to La. R.S. 48:491. The trial court also found any trespassing claims by the James Family against the Parish and the School Board to be moot based on its ruling of tacit dedication. A motion for new trial filed by the James Family was denied. Sterling James, Sr. filed and was granted a motion for devolutive appeal.

LAW AND DISCUSSION

A trial court's finding that a road has been tacitly dedicated for public use is a finding of fact that an appellate court may not set aside in the absence of manifest error or unless it is clearly wrong. Braxton v. Guillory , 98-379 (La. App. 3 Cir. 10/28/98), 721 So.2d 114, 117 ; Scott v. Chustz , 13-0610 (La. App. 1 Cir. 11/1/13), 135 So.3d 766, 770, writ denied , 13-2787 (La. 2/14/14), 132 So.3d 965 ; Jefferson Davis Par. Sch. Bd. v. Fontenot , 505 So.2d 955 (La. App. 3rd Cir. 4/8/87), writ denied , 511 So.2d 1154 (La. 1987). Under the manifest error standard, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880, 882 (La. 1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

La. R.S. 48:491 sets forth the law on dedication of public roads. It states in pertinent part:

B. (1)(a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.
(b) Actual or constructive knowledge is presumed if prior to or during the work the public body notifies the last known adjoining landowners of same by written notice by certified or registered mail, return receipt requested. When such notice is given more than two years and ten months from commencement of such work, it shall suspend the foregoing prescription for sixty days.
(c) Actual or constructive knowledge is conclusively presumed within all parishes and municipalities, except as otherwise provided by R.S. 48:491(B)(3), if the total period of such maintenance is four years or more, unless prior thereto and within sixty days of such actual or constructive knowledge, the prescription is interrupted or suspended in any manner provided by law.

This statute requires that the party seeking to prove that a public road has been dedicated must show that there has been sufficient maintenance and that the landowner had knowledge of or acquiesced in the public maintenance. Himel v. Bourque , 14-1811 (La. App. 1 Cir. 12/11/15), 185 So.3d 42, 47. Tacit dedication does not require the intent of the landowner to dedicate the property when there has been sufficient maintenance without protest. Id. If the total period of such maintenance is four years or more, actual or constructive knowledge is conclusively presumed. La. R.S. 48:491.

On appeal, Mr. James argues that these requirements of tacit dedication have not been met. He argues that the landowners were never given proper notice, that the Parish only fleetingly maintained a gravel bus turnaround on the property of a neighbor and not that of the James Family, and that any maintenance that was attempted on the James's property was not peaceable or without objection from the James Family.

At trial, the Parish and the School Board introduced evidence that Mr. James had knowledge of and acquiesced to the maintenance being performed by the Parish and the School Board on the gravel portion of Ash Street in question: Parish employees testified that they had conversations with Mr. James over the years while performing maintenance on the disputed portion of the roadway; a 2012 act of sale signed by Mr. James for a second tract of property references the property being located along Ash Street; a letter dated March 30, 2010, was sent by the Parish to Mr. James which made known to Mr. James the Parish's commitment to maintain the rear portion of Ash Street to provide safe access and public use; neighbors and nearby residents testified that the Parish had continuously maintained the roadway and that Parish equipment was frequently seen there; various witnesses testified that the road in question was used by school buses, mail carriers, trash collectors, and residents living nearby. Additionally, Mr. James himself testified that he gave the Parish permission to place a bus turnaround on his property when he was initially approached with the request to place it there.

Evidence was also introduced pertaining to the sufficiency of the maintenance performed by the Parish and the School Board: work orders dating back to 1993 showed public requests to maintain Ash Street; Parish employees who performed the maintenance testified as to the scope of these work orders, which included maintenance of the gravel portion of the road located on the James Family properties over many years.

Members of the James Family, including Sterling James, Sr., testified that they never (or only rarely) saw parish employees maintaining the gravel portion of the road. Mr. James also testified that he told parish employees four or five times to get off of his property.

It is clear from the trial court's detailed written reasons for judgment that it carefully considered all the evidence introduced at trial before finding that the gravel portion of Ash Street at issue in this case had been tacitly dedicated to the Parish and the School Board pursuant to La. R.S. 48:491. It specifically found that the evidence shows that the Parish and the School Board maintained the gravel portion of the road for a period of more than three years and that the actual or constructive knowledge of the landowners is conclusively presumed because the total period of such maintenance is in excess of four years. Upon our review of the record, we find no manifest error in the trial court's findings of fact. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

      Briefs and other motions filed in this Court purport to be on behalf of both Sterling James, Sr. and the Estate of Joseph James; however, the trial court's May 8, 2018 order of appeal grants a devolutive appeal only to Sterling James, Sr.

      In their reconventional demand, the James Family also names as a defendant Martin Reulet, who was also named as a defendant in the Parish and School Board's petition. These claims are not before us in this appeal.

      Mr. James makes no argument on appeal concerning the trial court's determination on the exception of prescription filed by the Parish and the School Board.


author: JOHNSON, J.

text:
    ALL AMERICAN HEALTHCARE, L.L.C. and Nelson J. Curtis, III, D.C. v. Benjamin DICHIARA, D.C.
    NO. 18-CA-432
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ALL AMERICAN HEALTHCARE, L.L.C. AND NELSON J. CURTIS, III, D.C., John A. Venezia, Julie O'Shesky, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, BENJAMIN DICHIARA, D.C., David K. Theard, New Orleans
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
   JOHNSON, J.

Plaintiffs/Appellants, All American Healthcare, L.L.C. and Nelson J. Curtis, III, D.C. (hereinafter collectively referred to as "All American"), appeal the granting of a partial summary judgment in favor of Defendant/Appellee, Benjamin Dichiara, D.C., and dismissal of their claims for breach of the employee non-solicitation agreement with prejudice from the 24th Judicial District Court, Division "A". For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The following facts are pertinent to this appeal.

According to the pleadings, Dr. Benjamin Dichiara began working for All American as a licensed chiropractor in August of 2009. Dr. Curtis was the sole member of All American and used the limited liability company for payroll purposes. Dr. Dichiara began his employment working in All American's Covington office, and subsequently operated the company's New Orleans location. On October 14, 2009, Dr. Dichiara entered into a "Professional Employment Agreement" (hereinafter referred to as the "2009 Employment Agreement") with All American Medical and Chiropractic, LLC, through its duly authorized representative, Dr. Curtis. The 2009 Employment Agreement contained various provisions pertaining to Dr. Dichiara's employment and termination, specifically, defining the terms of employment, a non-compete clause, and a non-interference clause. According to the 2009 Employment Agreement, the agreement was binding between the parties for two years from the date of execution.

On January 15, 2014, Dr. Dichiara signed a document entitled "NON-COMPETITION AND NON-INTERFERENCE AGREEMENT FOR ALL AMERICAN MEDICAL & CHIROPRACTIC" (hereinafter referred to as the "2014 Employment Agreement"). The 2014 Employment Agreement referred to the parties to the agreement as the practice, Dr. Curtis, and the professional, Dr. Dichiara. The two-page 2014 Employment Agreement stated, in pertinent part:

a. Noncompete: For the duration of the Term and for 24 months thereafter, the Professional will not become employed by, or own or control any interest in, or act as an officer, director, consultant or adviser, to any person, firm, partnership, company, or corporation carrying on or engaged in a business in Tangipahoa Parish, St. Tammy Parish, Livingston Parish, Jefferson Parish, Orleans Parish, Washington Parish, and St. Bernard Parish similar to that of The Practice.
b. Solicitation of Employees: For the duration of the Term and for 24 months thereafter, the Professional hereby agrees not to employ, either directly or through an Affiliate, any current employee of The Practice or its Affiliates or any individual who was an employee of The Practice or its Affiliates at any time during Term, and agrees not to solicit, or contact in any manner that could reasonably be construed as a solicitation, either directly or through an Affiliate, any employee of The Practice or its Affiliates for the purpose of encouraging such employee to leave or terminate his employment with The Practice or its Affiliates.
* * *
d. Interference: For the duration of the Term and for 24 months thereafter, the Professional hereby agrees not to interfere with The Practice's relationship with any person who at the relevant time is an employee, contractor, supplier, or customer of The Practice or its Affiliates.

Dr. Dichiara resigned his employment with All American Medical and Chiropractic, LLC on February 2, 2015. In March of 2015, Dr. Dichiara opened his own chiropractic clinic, Allied Chiropractic and Wellness, in Metairie, Louisiana. Dr. Dichiara hired Lauren Ammerman, a former employee of the All American New Orleans location, as a member of his personnel in June 2015.

On April 11, 2016, All American filed a Petition for Permanent Injunction and Damages, and Motion for Temporary Restraining Order and Preliminary Injunction against Dr. Dichiara. In the petition, All American alleged Dr. Dichiara violated the non-compete clause in the 2009 Employment Agreement and 2014 Employment Agreement, and as a result, it lost revenue and business opportunities. All American also alleged that Dr. Dichiara encouraged Ms. Ammerman to leave her employment with the company after Dr. Dichiara resigned, in violation of the non-solicitation of employees provision. The petition sought injunctive relief through a temporary restraining order, a preliminary injunction, and a permanent injunction for Dr. Dichiara's alleged failure to abide by a valid non-compete agreement. In addition to his Answer filed on June 7, 2016, Dr. Dichiara filed a reconventional demand for wages and other sums due on July 14, 2016, alleging he was owed an annual bonus and accrued vacation benefits from All American.

The following year, on November 8, 2017, Dr. Dichiara filed a motion for partial summary judgment. In his motion, Dr. Dichiara argued that the non-compete clause at issue was fatally vague, ambiguous, and unenforceable because the meaning of the word "Term" was not defined in the 2014 Employment Agreement, and there was no definition of the type of business for which he was prohibited from competing. Dr. Dichiara further argued that the non-compete and non-solicitation clauses in the 2014 Employment Agreement failed to specify the geographical area where the prohibitions were to apply, which made the clauses unenforceable. In its opposition to the motion for partial summary judgment, All American argued that, according to the agreements, Dr. Dichiara was prohibited from employing any current employee of All American during the term of employment.

The hearing on Dr. Dichiara's motion for partial summary judgment was held on January 31, 2018, and the matter was taken under advisement. On February 22, 2018, the trial court granted Dr. Dichiara's motion and dismissed all of All American's claims against him with prejudice. In its Reasons for Judgment, the trial court found that the non-compete and non-solicitation clauses of the 2014 Employment Agreement were vague and unenforceable because it failed to define "Term," "Affiliates," or "The Practice." It also found there was no evidence presented that: Dr. Curtis or All American Healthcare, L.L.C. operated any office or employed any persons; Dr. Dichiara's 2014 Employment Agreement was with All American; and, Ms. Ammerman was employed with All American or the parish in which she was employed. The trial court further found that the failure of the 2014 Employment Agreement to define "Term" was contrary to public policy.

On March 6, 2018, All American filed a motion for new trial on the basis that the judgment was contrary to the law and evidence, and there was new evidence-a recording of a conversation between Dr. Dichiara and Dr. Curtis-that All American could not produce in the summary judgment process. All American's motion was denied on May 9, 2018. The partial summary judgment was subsequently designated as a final judgment pursuant to La. C.C.P. art. 1915(B)(1). The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs allege the trial court erred in: 1) holding that the 2014 Employment Agreement is vague to the extent that it was invalid and unenforceable; 2) finding that the lack of a specific definition for "Term" meant that the employee non-solicitation provision failed to provide a specific duration of time; and 3) applying La. R.S. 23:921 to a contractual provision that limits former employees from employing other former employees.

LAW AND ANALYSIS

General Summary Judgment Law

According to La. C.C.P. art. 966(3), "[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if 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." A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact, and is favored and designed to secure the just, speedy, and inexpensive determination of every action. Populis v. State Dep't of Transportation & Dev ., 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975, 979, writ denied , 17-1106 (La. 10/16/17), 228 So.3d 753, quoting Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. A material fact is one that potentially insures or prevents recovery, affects a litigant's ultimate success, or determines the outcome of a lawsuit. Id. at 980. An issue is genuine if it is such that reasonable persons could disagree. If only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for a trial on that issue. Id.

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(4). The initial burden is on the mover to show that no genuine issue of material fact exists. Pouncy , supra . If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The adverse party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id. Appellate courts review summary judgments de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Lincoln v. Acadian Plumbing & Drain, LLC , 17-684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209, writ denied , 18-1074 (La. 10/15/18), 253 So.3d 1302.

Interpretation and Enforceability of the 2014 Employment Agreement

All American alleges the trial court erred in granting partial summary judgment because it failed to interpret the employee non-solicitation provision under general contract principles. It argues that the 2009 Employment Agreement and the 2014 Employment Agreement contain identical language to limit Dr. Dichiara's hiring of its employees; and while the agreements do not specifically define the words "Term," "Affiliate," or "The Practice," the absence of those definitions does not render the words meaningless. All American contends that the trial court's interpretation of the employee non-solicitation provision should have been based upon the parties' intentions and surrounding circumstances, if the trial court found the terms to be ambiguous.

When considering the intent of the parties, All American claims the 2009 Employment Agreement provides the general definitions of the undefined expressions in the 2014 Employment Agreement, and it is unambiguous that the parties understood the meanings of those words and intended to use them the same way they were defined in the 2009 Employment Agreement. Specifically, All American asserts that the 2009 Employment Agreement discussed "Initial Term," "Subsequent Term," and "Dangling Term," and nature of the contracts intended to set conditions and agreements between the parties while the employment existed and thereafter. It contends that "Term" naturally meant the time during the employment, and such an interpretation would give a determinable and reasonable end to the employee non-solicitation provision-24 months after Dr. Dichiara's employment was terminated. Because Dr. Dichiara hired Ms. Ammerman within 24 months of the termination of his employment, All American claims Dr. Dichiara violated the employee non-solicitation provision.

In opposition, Dr. Dichiara avers that the words "Term," "Initial Term," and "Subsequent Term" are not defined anywhere in the 2014 Employment Agreement. As such, he maintains that the 2014 Employment Agreement was sloppily drafted with the inclusion of terms from the expired 2009 Employment Agreement and should be interpreted against All American. Dr. Dichiara further avers that All American was required to prove there was a meeting of the minds on the length of employment, and it failed to clearly prove the contractual terms of the 2014 Employment Agreement. Because the 2014 Employment Agreement fails to provide the meanings of important contractual terms, Dr. Dichiara argues the agreement is fatally vague and unenforceable. As such, Dr. Dichiara contends the partial summary judgment should be affirmed.

A contract is formed by the consent of the parties established through offer and acceptance; thus an enforceable contract requires a meeting of the minds. Ocampo v. Maronge , 17-403 (La. App. 5 Cir. 12/27/17), 237 So.3d 627, 634, writ denied , 18-314 (La. 4/16/18), 240 So.3d 920, citing Read v. Willwoods Cmty. , 14-1475 (La. 3/17/15), 165 So.3d 883, 887. The court must find there was a meeting of the minds of the parties to constitute the requirement of consent. Arias v. Albe , 04-26 (La. App. 5 Cir. 5/26/04), 876 So.2d 179, 182. Contracts are interpreted according to the true intent of the parties. La. C.C. art. 2045 ; First Bank & Tr. v. Redman Gaming of Louisiana, Inc. , 13-369 (La. App. 5 Cir. 12/12/13), 131 So.3d 224, 228. When the words of the contract are clear, unambiguous, and lead to no absurd consequence, no further interpretation may be made or consideration of extrinsic evidence be had in search of the parties' intent, and the contract must be enforced as written. Id. , citing La. C.C. art. 2045. When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id.

A contract or document is ambiguous when its written terms are susceptible to more than one interpretation, there is uncertainty as to its provision, or the parties' intent cannot be ascertained from the language used. Leftwich v. New Orleans Weddings Magazine , 14-547 (La. App. 5 Cir. 11/25/14), 165 So.3d 916, 921. When the terms of a contract are susceptible to more than one interpretation, there is uncertainty as to its provision, or the parties' intent cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. First Bank & Tr. , supra . In this posture, determining the intent of the parties becomes, in part, a question of fact, and the granting of summary judgment is appropriate only if there is no genuine issue as to the material fact. Id.

Here, the pertinent contract before us is the 2014 Employment Agreement, because two years had lapsed since the signing of the 2009 Employment Agreement and it was expired according to the provisions. The 2014 Employment Agreement stated the following concerning the non-solicitation of employees:

Solicitation of Employees: For the duration of the Term and for 24 months thereafter, the Professional hereby agrees not to employ, either directly or through an Affiliate, any current employee of The Practice or its Affiliates or any individual who was an employee of The Practice or its Affiliates at any time during Term, and agrees not to solicit, or contact in any manner that could reasonably be construed as a solicitation, either directly or through an Affiliate, any employee of The Practice or its Affiliates for the purpose of encouraging such employee to leave or terminate his employment with The Practice or its Affiliates.

The 2014 Employment Agreement does not specifically define the words "Term," "Affiliate," or "The Practice," and their exact meanings cannot be ascertained from the four corners of the instrument. As such, the non-solicitation provision may be interpreted in more than one manner. Thus, we find that those terms in the employee non-solicitation provision of the 2014 Employment Agreement are ambiguous. We will now consider parol evidence to determine the intent of the parties regarding those terms.

In support of his motion for partial summary judgment, Dr. Dichiara submitted his own affidavit and selected pages from Dr. Curtis's deposition. Dr. Dichiara's affidavit attested that he never agreed to extend the term in his 2009 Employment Agreement and attested to the circumstances involving the signing of the 2014 Employment Agreement. Dr. Curtis's deposition discussed the locations of All American's offices and the fact that Dr. Curtis drafted the 2014 Employment Agreement. Neither of the documents submitted by Dr. Dichiara provide any indication of the intent of the parties on the meanings of the terms at issue.

To support its opposition to the motion for partial summary judgment, All American submitted selected pages from Dr. Dichiara's deposition and the 2014 Employment Agreement. It has already been established that the 2014 Employment Agreement does not set forth the definitions of "Term," "Affiliate," or "The Practice." Additionally, the 2014 Employment Agreement does not reference the 2009 Employment Agreement or its terminology in any manner. A reading of the selected pages of Dr. Dichiara's deposition similarly does not provide any indication as to the meanings of the terms at issue. The deposition mainly discusses Dr. Dichiara's duties while working for All American, the opening of Allied Chiropractic and Wellness, and the hiring of Ms. Ammerman.

Because All American would have the burden of proving the terms of the contract at trial, it was All American's burden on the motion for partial summary judgment to either put forth evidence that would prove the meanings of the terms of the contract or prove there is a genuine issue of material fact as to the meanings of those terms, specifically the meaning of "Term." All American failed to present any evidence that there was a meeting of the minds with Dr. Dichiara on the meanings of "Term," "Affiliate," or "The Practice." Thus, All American failed to prove that Dr. Dichiara consented to the employee non-solicitation provision.

Therefore, after de novo review, we conclude that All American failed to establish that it will be able to satisfy its evidentiary burden of proving the there was a meeting of the minds on the terms of the employee non-solicitation provision. Accordingly, we find that Dr. Dichiara is entitled to partial summary judgment, as a matter of law, because the employee non-solicitation provision of the 2014 Employment Agreement is ambiguous and unenforceable.

Application of La. R.S. 23:921

Because we conducted a de novo review in this matter and found that the employee non-solicitation provision of the 2014 Employment Agreement is ambiguous, thus unenforceable, we pretermit discussion of the trial court's application of La. R.S. 23:921.

DECREE

For the foregoing reasons, we affirm the trial court's partial summary judgment in favor of Defendant/Appellee, Benjamin Dichiara, D.C., and the dismissal with prejudice of all of the claims of Plaintiffs/Appellants, All American Healthcare, L.L.C. and Nelson J. Curtis, III, D.C. All American Healthcare, L.L.C. and Nelson J. Curtis, III, D.C. are assessed the costs of this appeal.

AFFIRMED

      Assignments of Error Numbers One and Two will be jointly discussed because they are interrelated.

      We particularly note the lack of the temporal element in the employee non-solicitation provision. All American argues that Dr. Dichiara either judicially admitted to the terms "Affiliate" and "The Practice" or failed to argue their ambiguity. Even if it were proven there was a meeting of the minds on the terms "Affiliate" and "The Practice," the unspecified duration of the time that Dr. Dichiara would be prohibited from hiring All American's employees would still be crucial for All American's partial summary judgment opposition because All American primarily claims that Dr. Dichiara hired Ms. Ammerman within 24 months after his employment was terminated.