author: COOKS, Judge.

text:
    Shannon S. DOWDLE v. STATE of Louisiana, THROUGH the DEPARTMENT OF CULTURE, RECREATION, AND TOURISM, and the Department of Transportation and Development
    18-878
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 2019
    Jeff Landry, Attorney General, State of Louisiana, Leisa B. Lawson, Assistant Attorney General, Louisiana Department of Justice, 900 Murray Street, Suite B-100B, Alexandria, LA 71301, (318) 487-5944, Attorneys for Appellee: State of Louisiana Through the Department of Culture, Recreation and Tourism, and The Department of Transportation and Development
    Robert L. Beck, III, W. Jay Luneau, Matthew T. Seaton, Luneau & Beck, LLC, P.O. Drawer 12850, Alexandria, LA 71315-2850, (318) 445-6581, Attorneys for Appellant: Shannon S. Dowdle
    Court composed of Sylvia R. Cooks, Billy H. Ezell and Phyllis M. Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Shannon S. Dowdle (Shannon) was allegedly injured while riding her bicycle in Hodges Gardens State Park (Hodges Gardens) on August 21, 2013. Shannon was accompanied by her husband, Kevin Dowdle (Kevin), and her brother. Kevin was not present when the accident occurred, and no one reported the accident to park officials until September 17, 2013, when Kevin filed a written report chronicling the alleged accident. The couple maintains annual passes for admission to Hodges Gardens and are frequent users of the park for running and cycling. Shannon filed suit on August 20, 2014, alleging she was seriously injured when she allegedly "attempted to stop to avoid a large pot-hole situated directly in her lane of travel" on a roadway inside Hodges Gardens. She further alleges in her petition the State "in the exercise of reasonable care knew or should have known about" the "defective condition of the roadway." Shannon set forth in her petition allegations asserting that the alleged bicycle accident was "caused by the fault and negligence of defendant ... and/or through the acts and/or omissions [of] one or more of its employees and/or agents." The petition enumerates five alleged acts of negligence identified as:

a) Failing to maintain a roadway;
b) Failing to warn park patrons about unreasonably dangerous defects in the roadway about which it knew or should have known;
c) Allowing park patrons to utilize a roadway that it knew or should have known was unreasonably dangerous;
d) Failing to warn park patrons of or cordon off a roadway that it knew or should have known was unreasonably dangerous; and
e) Failing to repair defects about which it knew or should have known.

The State answered the petition on February 19, 2015, denying the allegations and asserting an affirmative defense based on La.R.S. 9:2795, which provides a recreational use immunity for state parks such as Hodges Gardens. On August 28, 2017, the State filed a motion for summary judgment which was heard on November 28, 2018. The trial court granted the State's motion for summary judgment dismissing all of Shannon's claims with prejudice. Shannon appeals asserting there are unresolved genuine issues of material fact precluding summary judgment.

ANALYSIS

Appellate courts review summary judgments de novo, using the same analysis as the trial court in deciding whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). As for the burden of proof, Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

DeLafosse v. Vill. of Pine Prairie , 08-0693, p. 2 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1250, writ denied , 09-0074 (La. 2/4/09), 999 So.2d 766.

In support of its motion for summary judgment the State submitted the affidavits of Clifford Melius (Melius) and Kim A. Kelly (Kelly) along with Shannon's Petition for Damages, the State's Answer to Petition for Damages, and Plaintiff's Answers to Interrogatories and Requests for Production of Documents. In support of her opposition to the motion for summary judgment, Shannon filed a copy of the State's Response to Plaintiff's First Set of Interrogatories and Request for Production of Documents, a copy of an Initial Report of Office of State Parks dated September 17, 2013, a copy of a Follow-Up Report Office of State Parks dated September 17, 2013, a Witness Statement Office of State Parks dated September 17, 2013, several photo-copies of a photograph depicting a shallow, wide area in a roadway with loose pieces of surface material, and four pages from a booklet entitled Hodges Gardens State Park.

The current version of La.Code Civ.P. art. 966(A)(4), effective January 1, 2016, provides in pertinent part:

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. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

Official Comment (c of 2015) to La.Code Civ.P. art 966 states:

Subparagraph (A)(4), which is new, contains the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached. Although a memorandum is not a pleading or evidence, it is a proper document that can be used by a party to advance his arguments in support of or in opposition to the motion. See, e.g., Meaux v. Galtier , 972 So.2d 1137 (La. 2008). An opinion of the medical review panel cannot be filed in support of or in opposition to the motion unless it is properly authenticated and attached to the affidavit or deposition. Article 1458 requires that interrogatories be answered under oath, and only answers that are made under oath may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph continues the rule that no oral testimony shall be allowed at a hearing on a motion for summary judgment, even if all parties agree. See Mapp Construction, LLC v. Amerisure Mutual Insurance Co. , 143 So.3d 520 (La. App. 1st Cir. 2014). All supporting documents may be filed electronically if provided for by local rules or the clerk of court.

Further, La.Code Civ.P. art 967(A) and (B) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The trial court, and this court on de novo review, may only consider evidence that is admissible under the express provisions of La.Code Civ.P. arts. 966 -67. The reports, photographs, and pamphlet excerpts attached to Shannon's opposition to the motion for summary judgment are not certified or authenticated in any manner and are not attached to any sworn deposition. Therefore, they may not be considered. Louisiana Code of Civil Procedure Article 1458(A) (emphasis added) requires that:

Each interrogatory shall be answered separately and fully in writing under oath , unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The written answer or reasons for objection to each interrogatory shall immediately follow a restatement of the interrogatory to which the answer or objection is responding. The answers are to be signed by the person making them. When interrogatories are served on a specific party, that party shall verify he has read and confirmed the answers and objections. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty days after the service of the interrogatories. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Article 1469 with respect to any objection to or other failure to answer an interrogatory.

The State argued in response to Shannon's Opposition to Motion for Summary Judgment that Shannon's Exhibit A does not meet the requirements of La.Code Civ.P. arts. 966 -67, because these Answers to Plaintiff's First Set of Interrogatories and Requests for Production, provided by the State, are unsworn and as such may not be used in support of or in opposition to summary judgment. We note that Exhibit D (3) submitted by the State in support of its Motion for Summary Judgment is the Plaintiff's Answers to Interrogatories and Requests for Production of Documents which is also unsworn. Both sets of interrogatories are signed by the attorneys representing their respective parties. In neither instance has either the attorney or the party answering signed the document under oath. Louisiana Code of Civil Procedure Article 966 authorizes "answers to interrogatories" as one of the documents that "may be filed in support of or in opposition to the motion." Id. As noted above, Comment (c) to Article 966(A)(4) (emphasis added) states: " Article 1458 requires that interrogatories be answered under oath, and only answers that are made under oath may be filed in support of or in opposition to a motion for summary judgment ." This indicates that only when interrogatories are answered under oath as required may they be used in support of or in opposition to a motion for summary judgment.

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. See Boland v. West Feliciana Parish Police Jury , 2003-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813 writ denied , 2004-2286 (La. 11/24/04), 888 So.2d 231. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence.
Williams v. Memorial Medical Center , 2003-1806 (La. App. 4th Cir. 3/17/04), 870 So.2d 1044, 1053, writ denied , 2004-0963 (La. 6/4/04), 876 So.2d 93.

Nettle v. Nettle , 15-1875, 15-1876, pp. 4-5 (La.App. 1 Cir. 9/16/16), 212 So.3d 1180, 1183, writ denied , 16-1846 (La. 12/16/16), 212 So.3d 1170. See also, King v. Pontchartrain Mortg. Co. , 13-633 (La.App. 5 Cir. 1/31/14), 134 So.3d 19, writ denied , 14-430 (La. 4/11/14), 138 So.3d 610, and cases cited therein. See also , Bd. of Ethics Matter of Monsour , 16-1159 (La. App. 1 Cir. 6/21/17), 233 So.3d 625, writ granted , 17-1274 (La. 12/5/17), 231 So.3d 623, affirmed 17-1274 (La. 5/1/18), 249 So. 3d 808.

Because both parties' Answers to Interrogatories were not made under oath, and there is no attestation made before a notary public that these documents were answered under oath, they are not competent summary judgment evidence. Louisiana Code of Civil Procedure Article 967(A) and (B) require affidavits in support of or in opposition to a motion for summary judgment be made under oath and all documents be verified or certified by oath or attached to an affidavit. That article further allows an affidavit to be "supplemented or opposed by depositions, answers to interrogatories, or by further affidavits." The code requires that all three of these means by which an affidavit may be supplemented must be made under oath. It therefore stands to reason that only answers to interrogatories made under oath may be used in support of or in opposition to a motion for summary judgment. Thus, we will not consider these unsworn documents as competent evidence. Additionally, the photo copies submitted by Shannon attached to Exhibit A are likewise un-authenticated, unverified, and unsworn and therefore not competent evidence.

We find the State met its burden to prove that Hodges Gardens is a State Park and recreational area owned by the State of Louisiana and is subject to the provisions of La.R.S. 9:2795, which provides statutory immunity against the claims made in Shannon's suit. The State submitted two affidavits in support of its motion for summary judgment. Through the affidavits of Melius and Kelly the State established that Hodges Gardens is a Louisiana State Park and it is "not a commercial park [ ] operated for profit." It also established through this affidavit that this State park is designed for recreational purposes, including bicycling, for public use, and that the "roadway" identified by Shannon in her petition is "a rural park trail" located in Hodges Gardens.

Even if Plaintiff's exhibits were admissible nothing in any of Shannon's exhibits offered in opposition to the State's motion for summary judgment suggests that Shannon can produce any evidence to show the State acted willfully or intentionally in causing her alleged injuries. Because the State made a prima facie case establishing it is entitled to statutory immunity the burden shifted to Shannon to bring the State under the only exclusion that could render the State liable for her alleged injuries suffered inside the State park. Shannon offered nothing in this regard. Shannon's own petition for damages alleges only that the State was negligent. It does not allege any intentional or willful acts and neither do any of the reports submitted even if they could be considered. We note, too, that Shannon offered an enlarged copy of the photo of the allegedly defective roadway at oral argument. If this photo was admissible, it does not support Shannon's claim because the large area depicted in the photo indicates in our view that Shannon should have noticed this hazard and taken appropriate action to avoid it, especially in a location that she alleges is familiar to her as a frequent visitor to the site.

For the reasons stated we affirm the trial court's judgment. All costs of this appeal are assessed against Shannon S. Dowdle.

AFFIRMED .

      A. As used in this Section:
      (1) "Land" means urban or rural land, roads, water, watercourses, private ways or buildings, structures, and machinery or equipment when attached to the realty.
      (2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
      (3) "Recreational purposes" includes but is not limited to any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized, or nonmotorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, roller skating, roller blading, skate boarding, sledding, snowmobiling, snow skiing, summer and winter sports, or viewing or enjoying historical, archaeological, scenic, or scientific sites.
      (4) "Charge" means the admission price or fee asked in return for permission to use lands.
      (5) "Person" means individuals regardless of age.
      B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
      (a) Extend any assurance that the premises are safe for any purposes.
      (b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
      (c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
      (2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.
      C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
      D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
      E. (1) The limitation of liability provided in this Section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or nonrecreational purposes. (2)(a) The limitation of liability provided in this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes.
      (b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any greater duty of care which may exist and does not create a duty of care or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Subparagraph (E)(2)(d) of this Section.
      (c) For purposes of the limitation of liability afforded to parks pursuant to this Section this limitation does not apply to playground equipment or stands which are defective.
      (d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.
      F. The limitation of liability extended by this Section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    Pemella WILLIAMS v. The BOARD OF SUPERVISORS, LOUISIANA COMMUNITY & TECHNICAL COLLEGE SYSTEMS, et al.
    18-554
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 2019
    Amanda G. Clark, Mason C. Johnson, Erica Schirling Aguillard, FORRESTER & CLARK, L.L.C., 4981 Bluebonnet Blvd., Baton Rouge, LA 70809, (225) 928-5400, COUNSEL FOR DEFENDANTS/APPELLANTS: The Board of Supervisors of the Louisiana Community and Technical College Systems Phyllis Dupuis
    J. Arthur Smith, III, 830 North Street, Baton Rouge, LA 70802, (225) 383-7716, COUNSEL FOR PLAINTIFF/APPELLEE: Alicia Williams, legal successor to Pemella Williams
    Court composed of Billy H. Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   KYZAR, Judge.

Defendants, the Board of Supervisors of the Louisiana Community and Technical College Systems (the Board) and Phyllis Dupuis, appeal the trial court judgment granting partial summary judgment to Plaintiff, Pemella Williams, finding that Defendants violated Ms. Williams' constitutional right to procedural due process. Defendants further appeal the trial court's denial of their motion for summary judgment, seeking to dismiss all of Plaintiff's claims against them with prejudice, as well as the trial court's denial of qualified immunity as to Phyllis Dupuis. For the following reasons, we affirm the judgment of the trial court in part, reverse in part, and remand for proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

This matter arose as a teacher/tenure claim after Plaintiff, Ms. Williams, was presented with a termination letter on July 11, 2011. Plaintiff began her employment with Acadiana Technical College (ATC) in 1979. ATC came under the jurisdiction of the Board on July 1, 1999, with a policy that all employees who were transferred to the employment of the Board on July 1, 1999 would retain all property interests and due process interests acquired prior to the transfer of jurisdiction. Phyllis Dupuis was the Regional Director of ATC at all times relevant herein.

Prior to receiving the July 11, 2011 letter, Plaintiff was the Department Head of Health Occupations at the Lafayette campus of ATC, as well as acting as a classroom/clinical nursing instructor. In this role, Plaintiff's job duties included providing career counseling to students, maintaining program credentials and licensing requirements, and providing academic advice to program students. In the fall of 2010, Plaintiff was made aware that the Louisiana State Board of Practical Nurse Examiners, which is responsible for establishing the minimum requirements prospective nurses must meet before sitting for the national nursing exam, instituted a new requirement that graduating students must obtain FBI background clearance before sitting for the exam. Plaintiff was also made aware that students would be required to request the FBI clearance at least six months before attempting to sit for their nursing exam to ensure all background check results would be timely. Despite this, Plaintiff failed to inform nursing students set to graduate in May 2011 of the new FBI background check requirements, as required by her duties as Department Head.

ATC and the Board became aware of Plaintiff's oversight in May 2011, when Ms. Dupuis began receiving complaints from students who had not been authorized to sit for the nursing board exams based upon their lack of FBI background clearance. This caused repercussions for both the graduating nursing students and the reputation of ATC's nursing program, as passing nursing boards is a pre-requisite to employment in the field. Ms. Dupuis and Plaintiff met several times regarding the incident, the significance of the incident, and any potential legal ramifications, as many students had threatened legal action. Ms. Dupuis also consulted with the Board's legal counsel, Leo Hamilton, the Board's assistant manager of Human Resources, Francis Killen, and ATC's manager of Human Resources, Trevor Menard.

Following discussions about the incident over the course of May and June of 2011, Plaintiff received a letter on July 11, 2011, referencing her termination, though advising her that she would be paid wages and benefits through July 29, 2011. Plaintiff requested instead that she be allowed to retire, which request was granted less than a week later. At that point, Plaintiff retained an attorney who asserted that she had suffered a due process violation. ATC determined that the formal procedures required for termination of employment did apply and had not been completed. Thereafter, ATC effectively revoked the July 11, 2011 letter and prepared to conduct the formal process for termination.

Instead, Plaintiff executed Teacher Retirement System of Louisiana (TRSL) paperwork on July 20, 2011 certifying that she planned to retire from ATC. She was continued on administrative leave with pay and full benefits and retained her title as Department Head until she retired effective August 31, 2011. Before this chosen retirement date, Plaintiff's attorney sent a letter to ATC demanding reinstatement, claiming that Plaintiff was not still employed. On August 25, 2011, Plaintiff notified ATC by letter from her attorney that she would retire on September 1, though she reserved her right to pursue any civil remedies. Plaintiff then filed the instant suit after her retirement date, claiming unlawful discharge without due process.

Plaintiff filed a motion for partial summary judgment, requesting a finding that the actions of Defendants violated her federal and state constitutional rights to Due Process. Defendants filed a cross motion for summary judgment, seeking the dismissal of Plaintiff's claims with prejudice. Following arguments on the motions, the trial court granted Plaintiff's motion for partial summary judgment and denied Defendants' cross motion. It is from this judgment that Defendants appeal, asserting five alleged errors.

ASSIGNMENTS OF ERROR

(1) The trial court committed legal error in finding that plaintiff suffered a deprivation of Procedural Due Process Rights when she was never terminated.
(2) The trial [court] committed legal error in failing to recognize plaintiff's retirement as a knowing and voluntary waiver of her Procedural Due Process Rights.
(3) In failing to consider whether plaintiff was afforded constitutionally sufficient pre-termination process based on the undisputed fact that the willful neglect forming cause for her termination was discussed with her informally and was set forth in her termination letter, the trial court committed legal error.
(4) Denying Defendants' Summary Judgment seeking dismissal of the official capacity claim against Phyllis Dupuis was legal error.
(5) The trial court was manifestly erroneous in failing to find Phyllis Dupuis is entitled to Qualified Immunity.

Standard of Review

An appellate court reviews a judgment granting or denying a motion for summary judgment de novo , using the same criteria which govern a trial court's consideration regarding the appropriateness of summary judgment. Menard v. City of Lafayette , 01-4 (La.App. 3 Cir. 5/23/01), 786 So.2d 354. Summary judgment may be granted only if the mover has proved, through the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there remain no genuine issues of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. A genuine issue of material fact, for summary judgment purposes, 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. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764.

"Despite the legislative mandate now favoring summary judgments, 'factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor.' " Menard , 786 So.2d at 356 (quoting Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 ).

Deprivation of Procedural Due Process Rights

Defendants' first three assignments of error all relate to the trial court's finding that Plaintiff's right to procedural due process was violated, and as such, we will address them together. Plaintiff asserts she was a tenured employee with ATC during all relevant times. Louisiana law is well settled that teacher tenure law vests a property right interest in the teacher employee. LaPointe v. Vermilion Par. Sch. Bd. , 15-432 (La. 6/30/15), 173 So.3d 1152. Once these property right interests have been created, said employees cannot be terminated without due process of law. Id. ; U.S. Const. amend. XIV ; La.Const. art. 1, § 2. The Due Process Clause provides that the substantive rights of life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures. U.S. Const. amend. XIV. "Once property interests are created, they may not be deprived without adequate legal process." LaPointe , 173 So.3d at 1158.

In addition to showing the deprivation of her due process rights, Plaintiff must also show that the same rights were not waived when she chose to retire. Russell v. Mosquito Control Bd. , 06-346 (La.App. 4 Cir. 9/27/06), 941 So.2d 634. The main issues at hand are whether Plaintiff's due process rights were violated when she was allowed to retire but was not given a full termination hearing and whether that retirement was voluntary.

The requirements of due process vary according to circumstance, as it is, by nature, an imprecise ideal. Lange v. Orleans Levee Dist. , 10-140 (La. 11/30/10), 56 So.3d 925. "The essential requirements of due process ... are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement." Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Therefore, the central questions in this case are whether Plaintiff was aware of the charges against her, whether she was afforded an adequate opportunity to respond to the charges against her, and whether her retirement was voluntary.

Ms. Dupuis claims to have met and communicated with Plaintiff many times through May and June 2011 regarding the incident that led to the eventual end of Plaintiff's employment with ATC. Plaintiff asserts that she discovered her error in failing to notify her students of the FBI background requirement immediately after graduation in May. The letter informing Plaintiff of ATC's decision to terminate her is signed July 11, 2011. Therefore, Plaintiff had at least thirty days' notice regarding the incident and potential repercussions, as is mandatory per ATC's removal policy. However, the question remains as to whether Plaintiff had an opportunity to respond before being deprived of her continued employment.

A pre-termination hearing need not be elaborate. Loudermill , 470 U.S. 532, 105 S.Ct. 1487. "In general, 'something less' than a full evidentiary hearing is sufficient prior to adverse administrative action." Id. at 545, 105 S.Ct. 1487. It has already been noted that the opportunity to present reasons against why a proposed action should not be taken can be in writing or verbal. Id.

Plaintiff contends that not only was her termination not warranted, which we do not address, she further asserts that she was never given an opportunity to give reasons why she should not be terminated before being presented with her termination letter on July 11, 2011, which referenced immediate termination. This is in direct contradiction to Ms. Dupuis's claims that she and Plaintiff discussed the error and potential consequences many times over the preceding two months. As there are no specific requirements to a pre-termination hearing outside of being provided notice and an opportunity to respond, these requirements were potentially met in Plaintiff's meetings and discussions with her supervisor, Ms. Dupuis.

Further, Defendants essentially argue that any error regarding the procedures necessary to satisfy Plaintiff's due process rights when she was originally given her termination letter on July 11, 2011 was cured by subsequent events. Defendants assert that while it is possible the July 11, 2011 termination letter did not comport with due process requirements, this letter was rescinded after ATC was alerted to this possibility by Plaintiff's attorney. ATC determined that procedures of termination did apply and was prepared to conduct the formal process for termination. Plaintiff admits that she was continued on administrative leave with pay and full benefits as the Department Head for this period and continuing as such until her selected retirement date. It is well established that "[p]lacement on paid administrative leave does not constitute deprivation of a property interest," and as such, does not implicate due process concerns. Devall v. Hammond Mun. Fire & Police Civil Serv. Bd. , 14-1381, p. 13 (E.D.La. 12/2/14), 2014 WL 6774249. Therefore, a question remains as to whether sufficient formal procedures for termination would have been implemented by ATC before adverse employment action was taken if Plaintiff had not requested to retire.

Based upon this, Defendants contend that Plaintiff could not have suffered a Due Process violation as she was never actually terminated. Alternatively, since Plaintiff requested to be allowed to retire and was granted said request, her retirement was voluntary, and thus, due process concerns are not implicated. "Because an employee's Loudermill rights are designed to protect his property right in continued employment, the employee relinquishes those rights when he voluntarily resigns or retires." Russell , 941 So.2d at 640 ; see also Abel v. Auglaize County Highway Dep't , 276 F.Supp.2d 724, 738 (N.D.Ohio 2003) (finding employee's resignation rendered Loudermill inapplicable). As such, "an employee has no right to appeal when the employee voluntary [sic] resigns or retires." Russell , 941 So.2d at 640. It is undisputed that Plaintiff completed the retirement process and paperwork and received retirement benefits.

Plaintiff argues that if it is found that she did retire, such retirement was not voluntary. Much like in Russell , 941 So.2d 634, Plaintiff argues that the only options available to her were either to be terminated or to retire. Defendants claim that Plaintiff's retirement choice was a voluntary one made for various reasons; the main one being that by choosing retirement rather than potential termination, Plaintiff would be allowed to stay on as an employee on administrative leave until the completion of her Deferred Retirement Option Plan (DROP). Plaintiff had enrolled in DROP some three years earlier and was scheduled to be fully vested by the Fall of 2011, which Defendants claim establishes that Plaintiff was already preparing for retirement before the subject incident. Plaintiff could have chosen to fight her termination and could have potentially been terminated before being fully vested in her DROP benefits. As the fourth circuit noted in Russell , 941 So.2d at 641 :

In determining whether an employee's retirement choice was voluntary, the federal jurisprudence has enumerated the following four factors for courts to consider: "(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether he was permitted to select the effective date of resignation."

Although Plaintiff was not initially offered the option of retirement, less than a week after being presented with her notice of termination, and before any actual termination or adverse employment action had been effectuated, Plaintiff was indeed offered the option of being allowed to retire. Plaintiff argues that the choice between retirement and termination did not offer viable alternatives to retirement, making it forced; however, the federal jurisprudence has repeatedly rejected this argument and upheld resignations that were made in order to avoid threatened termination. Id. ; Christie v. United States , 207 Ct.Cl. 333, 518 F.2d 584 (1975). In Christie , the court rejected the employee's argument that she was essentially forced to resign, reasoning "[s]he could stand pat and fight. She chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation." Christie , 518 F.2d at 587. Similarly, Plaintiff here could have chosen to fight her termination for cause.

The second prong of this test is whether Plaintiff understood the nature of the choice she was given. After Plaintiff was given notice that her request to retire would be granted, she retained counsel who asserted that she had suffered a due process violation. Defendants claim that it was after receiving this notice from Plaintiff's counsel that ATC revoked the July 11 termination letter and began preparing for the formal termination process. After this occurred, Plaintiff executed the necessary paperwork certifying that she planned to retire from ATC effective August 31, 2011. Plaintiff again notified ATC, by letter from her attorney dated August 25, 2011, that she would be retiring. Plaintiff retained counsel before her retirement was finalized and while she was still on administrative leave, before a hearing as to any actual adverse employment action had been taken.

The third and fourth factors for consideration are whether Plaintiff was given a reasonable time in which to make her decision to retire and select her date of retirement. The jurisprudence does not specifically state what such a reasonable time period is, and therefore, the issue must be considered on a case by case basis. While the July 11 letter references immediate termination, it also states that Plaintiff would continue to receive pay and benefits until July 29, 2011, thus delaying termination until then. However, Plaintiff was not informed that her request to retire was granted, thus making retirement a viable option, until the week after July 11, 2011. While we note that in Russell , 941 So.2d 634, the fourth circuit found two days to be sufficient time in which to allow Mr. Russell to make his decision, we find this to be a question that should be answered by the factfinder.

The final prong questions whether Plaintiff was permitted to select the effective date of her retirement. It is undisputed that, once retirement was certain, Plaintiff was able to select a date of her choosing and was continued on paid administrative leave until said date arrived.

In light of the above, we find that there remain questions of fact in the current case. Whether Plaintiff was given or would have been given an opportunity to respond adequately to the allegations against her such as to satisfy due process requirements had she not retired is clearly a contested, material fact, especially given Ms. Dupuis' affidavit stating that ATC was fully prepared to conduct formal termination proceedings, including a hearing, if Plaintiff chose not to retire. Whether Plaintiff's retirement was voluntary or forced based upon considerations such as whether she was genuinely given a choice, as she had to request the option to retire, is yet another material fact. Whether the period from July 11 to July 29 was a reasonable period in this case for Plaintiff to make the decision to retire and whether she understood her legal options at the time are unanswered questions of fact making summary judgment inappropriate. Making findings of fact requires a weighing of the evidence by the trier of fact, which is impermissible at the summary judgment stage of any legal proceeding. Tepper v. Red River Acad., L.L.C. , 14-1028 (La.App. 3 Cir. 2/4/15), 157 So.3d 1142. In ruling on summary judgments, "factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Menard , 786 So.2d at 356.

The trial court granted Plaintiff's motion for summary judgment and denied Defendants' motion for summary judgment, finding that Plaintiff's due process rights had been violated. Summary judgment may only be granted if there remain no genuine issues of material fact. La.Code Civ.P. art. 966. A material fact for the purpose of summary judgment is one that would matter at a trial on the merits. Johnson v. Concordia Bank & Trust Co. , 95-1187 (La.App. 3 Cir. 3/27/96), 671 So.2d 1093. Given the disputed evidence and the complexity of the questions, we find that the issue of liability was not suitable for summary judgment, as such questions are best left for decision following a trial on the merits. As such, we affirm the judgment of the trial court denying Defendants' motion for summary judgment, reverse the trial court's judgment granting Plaintiff's motion for summary judgment, and remand this issue back to the trial court for trial on the merits.

Qualified Immunity

Defendants' fourth and fifth assignments of error assert that the trial court erred in failing to find that Ms. Dupuis is entitled to qualified immunity and for failing to grant their motion for summary judgment on said immunity. Qualified immunity protects an individual state official from liability for money damages where the defendant acts within the course of his or her official capacity in a manner that is objectively reasonable and in good faith, even if the conduct or action, in and of itself, violates a plaintiff's constitutional rights. Richard v. Bd. of Sup'rs of La. State Univ. & A & M Coll. , 06-927 (La.App. 1 Cir. 3/28/07), 960 So.2d 953. "Whether an official protected by qualified immunity may be held personally liable for allegedly unlawful official actions generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken." Christian v. Fontenot , 28,175, pp. 13-14 (La.App. 2 Cir. 4/8/96), 672 So.2d 436, 445, writ denied , 96-1385 (La. 9/13/96), 679 So.2d 105 (citing Harlow v. Fitzgerald , 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).

In Moresi v. Dep't of Wildlife and Fisheries , 567 So.2d 1081 (La.1990), the Louisiana Supreme Court, in interpreting Harlow , 457 U.S. 800, 102 S.Ct. 2727, developed a two-part test to determine if a particular official was entitled to qualified immunity. "First, the court must determine whether the law was clearly established at the time the action occurred.

Second, if the law is clearly established, the defendant must show that, because of extraordinary circumstances, he neither knew nor should have known of the relevant standards." Christian , 672 So.2d at 446. This test generally turns on the "objective reasonableness of the action[.]" Tx. Faculty Ass'n v. Univ. of Tx. at Dallas , 946 F.2d 379, 389 (5th Cir.1991).

We have declined to determine whether Plaintiff's rights were clearly violated at this stage of the proceedings. However, we find that such an answer is rendered unnecessary for our current discussion of whether Ms. Dupuis is entitled to qualified immunity based upon the second prong of the test iterated by the supreme court in Moresi , 567 So.2d 1081. Plaintiff argues that Ms. Dupuis' actions were not objectively reasonable given the relevant jurisprudence regarding procedural due process rights of tenured faculty members. Plaintiff specifically states in brief that Ms. Dupuis could "have easily known, if she had bothered to ask any of the lawyers for the State." However, this argument appears in direct contradiction to Ms. Dupuis' affidavit testimony. Ms. Dupuis testified that she conducted a pre-termination investigation by consulting with the Board's attorney, the Assistant Human Resources Manager in the Systems office for the Board, and ATC Human Resources manager regarding what to do about the situation with Plaintiff and going so far as to get approval for the July 11, 2011 termination letter before presenting it to Plaintiff.

At the relevant time for the instant case, Ms. Dupuis had only been in her position as the appointing authority for a short while and had not yet been involved in the termination of a permanent employee. She, therefore, sought the advice of counsel and human resources to determine the correct course of action; all of whom agreed that the appropriate sanction would be to notify Plaintiff of their intention to terminate Plaintiff's employment. Given this information, a reasonable officer could not have clearly known that her actions were unlawful. Nor could her actions be considered plainly incompetent. Instead, Ms. Dupuis took precautionary measures to ensure that the best course of action was taken, and under the circumstances, we find that the decision to provide written notice of termination to Plaintiff was not "objectively unreasonable" based upon the information provided to Ms. Dupuis during her pre-termination investigation. See Richard , 960 So.2d 953.

Accordingly, we find that Ms. Dupuis is entitled to qualified immunity for her role in Plaintiff's end of employment decisions with ATC and reverse the trial court's denial of summary judgment on this issue.

DISPOSITION

Based upon the foregoing, we affirm the trial court's denial of summary judgment on the issue of liability to Defendants, the Board of Supervisors of the Louisiana Community and Technical College Systems and Phyllis Dupuis. We further reverse the trial court's grant of summary judgment to Plaintiff, Pemella Williams, that her constitutional right to procedural due process had been violated, finding that this issue is not ripe for summary judgment and remanding to the trial court for a full trial on the merits. We further reverse the trial court's denial of summary judgment on the issue of qualified immunity in regards to Defendant, Phyllis Dupuis, finding her entitled to qualified immunity in this instance. Costs of this appeal are assessed equally to both parties.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      Alicia Williams, the daughter of Pemella Williams, was substituted as party plaintiff after Pemella Williams passed away on September 27, 2016. All references herein to "Plaintiff" are meant to refer to Pemella Williams.

      It is important to note that though the July 11 letter does state that Plaintiff's termination is effective immediately, it also states that Plaintiff was to continue receiving pay and benefits until July 29, 2011, thus, effectively continuing her employment through that date.


author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Steven D. BRADLEY
    NO. 2018-KA-0734
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 15, 2019
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR APPELLANT
    Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, Assistant District Attorney, Orleans Parish, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )
   Judge Roland L. Belsome

This criminal appeal is taken from the conviction and sentencing of Steven Bradley for conspiracy to commit obstruction of justice and obstruction of justice in connection with the murders of Kenneth and Lakeitha Joseph. For the reasons that follow, Mr. Bradley's convictions and sentences are affirmed.

Statement of Facts

On February 18, 2014, Elosia Hayward loaned her silver Dodge Caravan van to her brother, Kenneth Joseph and his wife, Lakeitha Joseph (collectively "the Josephs"). When the van was not returned the following morning, Ms. Hayward telephoned the Josephs throughout the day but received no response. At around six or seven o'clock that evening, Ms. Hayward, her mother and her sister went to the Josephs' home in Reserve, Louisiana. Ms. Hayward's van was not there. Upon entering the residence and finding it ransacked, they filed a missing persons' report with the St. John the Baptist Parish authorities.

Detective Sergeant Brian Schum of the St. John the Baptist Parish Sheriff's Office responded to the missing persons' report and met with Ms. Ernestine Joseph, who supplied him with the pertinent information on the Josephs. Det. Schum entered the Josephs' ransacked residence, and called the crime scene unit to process the residence. In the course of investigating the Josephs' disappearance, Detective Kirsten McAbee obtained cell phone records, which indicated that Lakeitha Joseph's last outgoing call was made the night of February 18, 2014. Further, the detective's analysis of the records indicated that Lakeitha's phone traveled from Reserve to LaPlace to Lutcher and, finally, to Kenner, Louisiana on that date. Det. McAbee confiscated a laptop computer and iPad from the Josephs' residence. During the course of her investigation, Det. McAbee obtained a search warrant for Horatio Johnson's residence at 2412 Van Arcle Drive in LaPlace, as well as the home of Brittany Martin, Horatio Johnson's girlfriend.

During the investigation, Ms. Hayword's van was located in an apartment complex parking lot by the Fulton County Georgia Police Department. The van was impounded and processed for forensic evidence. The forensic examiner located large blood stains on and under the second and third row seats, the floor mats and behind the side interior paneling. DNA evidence was also collected from the van.

On March 10, 2014, Det. McAbee learned that Lakeitha Joseph's body was recovered from the Intracoastal Waterway in New Orleans. At that point, the matter became a murder investigation and was turned over to New Orleans Police Department Detective Ryan Vaught. Later, on March 22, 2014, Kenneth Joseph's body was recovered from the Intracoastal Waterway. The Josephs' ankles were bound by blue nylon rope, and a thirty-pound kettlebell was attached to the rope binding Kenneth Joseph's ankles. It was later determined by a forensic pathologist that Mrs. Joseph suffered several injuries including a subscapular hemorrhage on the left side of the head, indicative of blunt trauma, but she died of asphyxia by drowning. It was determined that Mr. Joseph had also died by drowning.

The investigation led to the arrest of Horatio Johnson, Brittany Martin, Frank Mike and Steven Bradley. After a jury trial, Horatio Johnson was found guilty of two counts of second degree murder, conspiracy to commit obstruction of justice, and obstruction of justice. Brittany Martin pled guilty to obstruction of justice. Frank Mike pled guilty to conspiracy to commit obstruction of justice, and two counts of obstruction of justice. Steven Bradley's jury trial resulted in his conviction for conspiracy to commit obstruction of justice, and obstruction of justice. He was sentenced to fifteen years and thirty-five years respectively. Steven Bradley (hereinafter "the Defendant") appealed.

Assignments of Error

On appeal, the Defendant maintains that there was insufficient evidence to support his conviction for conspiracy to obstruct justice and his sentences are excessive.

Sufficiency of the Evidence

A claim that the evidence at trial was insufficient to support a conviction is reviewed by an appellate court applying the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). "Under this standard, the appellate court 'must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt.' " Id.

"The principal criteria of a Jackson v. Virginia review is rationality." State v. Mussall , 523 So. 2d 1305, 1310 (La. 1988). Upon review of the record as a whole, if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence must be adopted. Id. ; State v. Egana , 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 228. It is not the role of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott, 2012-1603 (La. App. 4 Cir. 12/23/13), 131 So. 3d 501, 508, writ denied, 2014-0221 (La. 8/25/14), 147 So. 3d 701, and writ denied sub nom. State v. Williams , 2014-0222 (La. 8/25/14), 147 So. 3d 701. "Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact." Id. "Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness." Id. "Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. Leonard, 2018-0142 (La. App. 4 Cir. 12/26/18), 262 So. 3d 378, 385-386, writ denied , 2019-0209 (La. 4/15/19).

La. R.S. 14:26(A) defines general criminal conspiracy as "the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination."

La. R.S. 14:130.1(A) defines the crime of obstruction of justice as any of the following when committed "with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding":

(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any such evidence.

The knowledge requirement of La. R.S. 14:130.1(A) is met if the perpetrator merely knows that an act "reasonably may" affect a "potential" or "future" criminal proceeding. State v. Jones, 2007-1052, p. 9 (La. 6/3/08), 983 So.2d 95, 101. "The defendant must also have tampered with evidence 'with the specific intent of distorting the results' of a criminal investigation." State v. Powell , 2015-0218, p. 11 (La. App. 4 Cir. 10/28/15), 179 So.3d 721, 728 (quoting La. R.S. 14:130.1(A)(1) ). However, "nothing beyond 'movement' of the evidence is required by the statute if accompanied by the requisite intent and knowledge." Id. (citing Jones, 2007-1052, p. 10 (La. 6/3/08), 983 So.2d at 101 ).

Brittany Martin and Frank Mike both pled guilty to obstruction of justice charges. At the Defendant's trial, their testimony provided the facts and circumstances of the Defendant's involvement in the conspiracy. Ms. Martin testified that she had been in a romantic relationship with Horatio Johnson for approximately two years at the time of the murders. On February 18, 2014, Mr. Johnson requested that she meet him at a recording studio on David Drive in Kenner, Louisiana. She witnessed the Defendant and Mr. Johnson standing outside of the studio. Then, Ms. Martin drove Mr. Johnson to a warehouse near the airport. The Josephs arrived at the warehouse driving a silver van. From there, Ms. Martin and Mr. Johnson drove back to the studio with the Josephs following them. Mr. Joseph entered the studio with Mr. Johnson. A few minutes later, Mr. Johnson exited the studio and summoned Ms. Martin and Mrs. Joseph into the studio. Ms. Martin testified that as they walked into the studio Mr. Johnson began strangling Mrs. Joseph.

After this incident occurred, Ms. Martin stated that she drove Mr. Johnson to several locations including a Walmart store where the couple purchased tape, kettlebells, three pairs of gloves, two hoodies, and degreaser. She also informed the jury that Mr. Johnson changed his clothes at a residence in LaPlace, Louisiana, and at another location he set the clothes he had changed out of on fire. They returned to the studio and she witnessed the Defendant exit the studio and move the silver van, that had been driven by the Josephs, to the front of the building. Shortly thereafter, the Defendant and Mr. Johnson, accompanied by "Blue" loaded two large items, which Mr. Martin suspected were the victims' bodies, into the rear of the van. The Defendant drove the van accompanied by "Blue," in the front passenger seat. Mr. Johnson got into Ms. Martin's vehicle and both vehicles were driven to New Orleans East where the bodies were tossed into the Intercoastal Waterway.

Subsequent to dumping the bodies, the four drove to the Defendant's mother's home in Baton Rouge, Louisiana. Later the van was driven to another house where they cleaned the interior and exterior. Next, "Blue" and the Defendant drove the van back to New Orleans after dawn and parked it in the backyard of Frank Mike's house. Mr. Mike is the Defendant's uncle. After they spoke to Mr. Mike, the Defendant, Mr. Johnson, "Blue" and Ms. Martin returned to the New Orleans area.

Mr. Mike testified as to his participation in the conspiracy to obstruct justice and corroborated Ms. Martin's account of the van being left at his home. He further testified that the Defendant gave him permission to drive the van to Atlanta on business, but he cautioned Mr. Mike not to put anything in the back of the van because it might be stained by blood. The Defendant told Mike that he robbed the victims and "had to hit a Bitch in the head with a weight." The Defendant also told Mike that "they" got $ 200,000.00 and a "few" bricks of cocaine. When Mike opened the van door, he saw blood in the back. Mike believed that the Defendant allowed him use of the van to allow it to "cool" off. While in Atlanta, Mr. Mike washed, vacuumed, and wiped down the interior of the van prior to abandoning it in the parking lot of an apartment complex. The Defendant instructed Mr. Mike to burn the van, but he did not.

Trial testimony established that the Defendant, Ms. Martin and Mr. Mike entered into an agreement to tamper with evidence and that the Defendant or Ms. Martin or Mr. Mike committed at least one of the following overt acts in furtherance of the conspiracy: (1) removing evidence from the recording studio, including the victims' bodies, their van, and the content of the van; 2) removing biological evidence from the studio by cleaning the floors and walls; 3) moving the van at Mr. Mike's house to "cool off" or hide it from the police with the knowledge it had been used in a crime; and 4) abandoning the van in Atlanta, Georgia.

The evidence presented at trial clearly shows the Defendant's participation in conduct intended to hide, remove, and destroy evidence to disrupt the murder investigation. Viewing the testimony presented at trial in the light most favorable to the State, a rational juror could conclude that the Defendant was guilty of conspiracy to obstruct justice.

Excessive Sentences

"The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed." State v. Williams , 2015-0866, pp. 12-13 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, 250, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive and cruel punishment. State v. Wilson , 2014-1267, p. 23 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150, 1165. A sentence is excessive, even when it is within the applicable statutory range, if it is " 'grossly disproportionate to the seriousness of the offense or imposes needless and purposeless pain and suffering.' " Id. , 2014-1267, 165 So.3d at 1166 (quoting State v. Hackett , 13-0178, p. 14 (La. App. 4 Cir. 8/21/13), 122 So.3d 1164, 1174 ). In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice. State v. Wilson , 2011-0960, p. 9 (La. App. 4 Cir. 9/5/12), 99 So.3d 1067, 1073. The excessiveness of a sentence is a question of law, and a reviewing court will not set aside a sentence absent a manifest abuse of discretion by the trial court. State v. Alridge, 2017-0231 (La. App. 4 Cir. 5/23/18), 249 So. 3d 260, 287-288, writ denied, 2018-1046 (La. 1/8/19), 259 So. 3d 1021.

The Defendant herein was convicted of one count each of obstruction of justice and conspiracy to obstruct justice by tampering with evidence in a homicide investigation, violations of La. R.S. 14:130.1 and La. R.S. 14:26, respectively. On the obstruction of justice conviction, the Defendant faced a sentencing range of zero to forty years and was sentenced to thirty-five years. The conviction for conspiracy to commit obstruction of justice carries a sentence range of zero to twenty years; the Defendant received fifteen years.

Although the trial judge in this case did not articulate reasons for the sentence, in reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Boudreaux, 2011-1345 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, writ den. 2012-1907 (La. 11/9/12), 100 So.3d 841. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Article 894.1. Id., 2011-1345 p. 5, 98 So.3d at 885. The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D) ; State v. Gibson , 2015-1390 (La. App. 4 Cir. 7/6/15), 197 So. 3d 692, 699.

Considering the facts of this case, the Defendant's thirty-five-year sentence is not unconstitutionally excessive. The Josephs suffered cruel, prolonged, and painful deaths by drowning. Their bodies were meticulously bound and weighted and then callously thrown into the Intracoastal Waterway. The Defendant thwarted police investigation in this case and obstructed justice by moving, destroying, and hiding evidence to conceal his and his co-conspirators' participation in the homicides and stymying the missing persons' investigation. Moreover, the record reflects that the Defendant has a lengthy criminal history, which includes convictions for attempted armed robbery and possession with the intent to distribute narcotics.

The record supports the Defendant's sentences.

Conclusion

For the reasons discussed, the Defendant's conviction and sentences are affirmed.

AFFIRMED.

      Horatio Johnson and Kenneth Joseph were cousins.

      A fifth suspect, Amir "Blue" Ybarra, is a fugitive.

      The sentences run concurrently with credit for time served.

      "Blue" refers to the fifth suspect in this crime, Amir Ybarra, who remains a fugitive.


author: GUIDRY, J.

text:
    Susan Russo MARCHAND, et al v. TEXAS BRINE COMPANY, LLC, et al
    NUMBER 2018 CA 0621 2017 CW 1713
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 28, 2019 Rehearing Denied February 15, 2019
    Leopold Z. Sher, James M. Gamer, Peter L. Hilbert, Jr., Neal J. Kling, Jeffrey D. Kessler, Jonathan B. Cerise, Martha Y. Curtis, Christopher T. Chocheles, New Orleans, LA, Robert Ryland Percy III, Travis J. Turner, Gonzales, LA, Katie D. Bell, Bradley C. Myers, Troy J. Charpentier, Baton Rouge, LA, Dane S. Ciolino, Metairie, LA, Eric J. Mayer, Houston, TX, Counsel for Third-Party Plaintiff/Appellant, Texas Brine Company, LLC
    Roy C. Cheatwood, Kent A. Lambert, Adam B. Zuckerman, Paul C. Thibodeaux, Matthew S. Chester, Colleen C. Jarrott, Matthew C. Juneau, Joseph A. Atiyeh, Tyler L. Weidlich, New Orleans, LA, Tony M. Clayton, Port Allen, LA, Counsel for Third-Party Defendant/Appellee, Vulcan Materials Company
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

This appeal, and related supervisory writ application, stem from a judgment denying a request for the issuance of a preliminary injunction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1975, Texas Brine Company, LLC acquired a lease to produce salt from a salt dome located under 40 acres of land in Assumption Parish ("Salt lease"), which land belongs to Occidental Chemical Corporation ("Oxy Chem"). Texas Brine later assigned its interest in the Salt lease to Vulcan Materials Company in 1976, but remained the operator of the brine production wells and related facilities pursuant to certain operating and supply agreements executed by Texas Brine and Vulcan Materials Company in 1975 and 2000.

In 2004, Basic Chemicals Company purchased the assets, properties, rights, contracts, and claims of Vulcan Materials Company. Then in 2005, Vulcan Materials Company assigned to Basic Chemicals Company all of its legal and beneficial rights, title, and interest of any kind or character in all business contracts. At the time of the acquisitions from Vulcan Materials Company, Oxy Chem held all of the outstanding equity interest in Basic Chemicals Company.

In 2012, a large sinkhole appeared on the aforementioned Oxy Chem land in Assumption Parish following the collapse of a portion of the salt dome beneath the land. Several persons and entities claiming personal injuries and loss of property and business due to the sinkhole filed a petition for damages on May 29, 2013, naming as defendants Texas Brine, Oxy Chem, the State of Louisiana through the Department of Natural Resources, and Miller Engineering & Associates, Inc. Texas Brine and Oxy Chem filed separate answers to the petition, generally denying liability and raising various affirmative defenses to the plaintiffs' claims. Oxy Chem additionally filed a separate cross claim against Texas Brine for damages sustained to its property, for breach of contract, and for contribution and indemnification to the extent it is found liable to the plaintiffs. Texas Brine, in turn, filed a demand to arbitrate certain disputes between it and Oxy Chem pursuant to the provisions of the 2000 Amended and Restated Operating and Supply Agreement that Texas Brine had executed with Vulcan Materials Company. Years later, however, Texas Brine sought to terminate the arbitration.

On July 5, 2017, Texas Brine filed a request for injunctive relief in the instant action, seeking the issuance of preliminary and permanent injunctions, after due proceedings, to enjoin Oxy Chem from proceeding with the arbitration. Texas Brine then filed a motion for preliminary injunction on July 7, 2017, again requesting that Oxy Chem be enjoined from proceeding with arbitration. The basis for both pleadings is Texas Brine's assertion that Oxy Chem is not a valid assignee of the 2000 Amended and Restated Operating and Supply Agreement between Texas Brine and Vulcan Materials Company, which contains the provision for arbitration.

A hearing on the request for a preliminary injunction was held October 23, 2017. After taking the matter under advisement, the trial court issued written reasons and signed a judgment on November 15, 2017, denying Texas Brine's motion for preliminary injunction. Pursuant to La. C.C.P. art. 3612, Texas Brine devolutively appeals the November 15, 2017 judgment denying its motion for preliminary injunction. Texas Brine also filed an application for supervisory writs challenging the judgment, which application was referred to this panel to decide in conjunction with the related appeal. See Marchand v. Texas Brine Company, LLC, 17-1713 (La. App. 1st Cir. 5/14/2018) (unpublished writ action).

DISCUSSION

A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. It is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of a controversy.

Farmer's Seafood Co., Inc. v. State ex rel. Department of Public Safety, 10-1746, p. 4 (La. App. 1st Cir. 2/14/11), 56 So.3d 1263, 1266.

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. La. C.C.P. art. 3601(A). Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Adler v. Williams, 16-0103, p. 9 (La. App. 1st Cir. 9/16/16), 203 So.3d 504, 512-13.

Although a trial court's judgment on a preliminary injunction constitutes an interlocutory ruling, a party aggrieved by a judgment granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612(B) ; Tobin v. Jindal, 11-0838, p. 4 (La. App. 1st Cir. 2/10/12), 91 So.3d 317, 320. Appellate review of a trial court's issuance of a preliminary injunction will not be disturbed on review unless a clear abuse of discretion is shown. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270, p. 5 (La. App. 1st Cir. 3/24/05), 906 So.2d 660, 663.

In its reasons for judgment, the trial court found that Texas Brine did not establish that it would suffer irreparable injury, loss, or damage nor that it was entitled to the relief requested. Relying on a decision of the federal Fifth Circuit, the trial court essentially concluded that Texas Brine would not suffer irreparable harm by arbitrating a dispute that it did not contractually agree to arbitrate. See City of Meridian, Mississippi v. Algernon Blair, Inc., 721 F.2d 525, 529 (5th Cir. 1983). As the trial court held, "whether a claim is properly within the scope of the parties' contractual agreement is a matter than can be reviewed on appeal after [the] conclusion of arbitration, and a party's right to a trial in court is not irretrievably lost, even if the trial court erred in ordering arbitration in the first instance."

In this appeal, Texas Brine argues that the preliminary injunction should have been granted because this court has held that injunctive relief is properly granted to enjoin arbitration where a party has not agreed to the same, citing the case of W.E. Parks Lumber Co., Inc. v. Ronald A. Coco, Inc., 297 So.2d 925, 927 (La. App. 1st Cir.), writ denied, 302 So.2d 23 (La. 1974). Notably, in that case, the parties did not dispute that an agreement to arbitrate existed between the parties; rather, the issue was whether the particular dispute between the parties was one of the issues that the parties agreed to submit to arbitration. This court upheld the trial court's determination that the dispute at issue was not included in the scope of the issues that the parties agreed to submit to arbitration. Hence, this court agreed that the party objecting to arbitration would be irreparably harmed by being forced to arbitrate "in a proceeding not required by the contract." W.E. Parks Lumber Co., Inc., 297 So.2d at 927.

In the matter before us, however, the evidence does not clearly show there was no agreement between the parties to submit the underlying disputes to arbitration. Unlike in W.E. Parks Lumber Co., Inc., where a valid agreement to arbitrate did exist, but it was found that the parties' dispute was not encompassed within the scope of that agreement, Texas Brine contends herein that no valid agreement to arbitrate exists between the parties because the assignment agreement between Basic Chemicals Company and Vulcan Materials Company, whereby the provisions of the 2000 Amended and Restated Operating and Supply Agreement would be made applicable to Oxy Chem, is invalid. Texas Brine argues that the assignment from Vulcan Materials Company to Basic Chemicals Company was only a partial assignment and that the 2000 Amended and Restated Operating and Supply Agreement allowed for only a full assignment of Vulcan Materials Company's rights and obligations under the agreement. Oxy Chem, on the other hand, argues that there was no partial assignment, but even if there was a partial assignment, the 2000 Amended and Restated Operating and Supply Agreement allows for such.

We observe that Texas Brine's argument is premised on its attack of the contract whereby the provision for arbitration would be made applicable to the parties. The United States Supreme Court, applying provisions of the Federal Arbitration Act, held that a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator, whether the challenge is brought in federal or state court. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 1210, 163 L.Ed.2d 1038 (2006) ; see also Vishal Hospitality, LLC v. Choice Hotels International Inc., 04-0568, p. 6 (La. App. 1st Cir. 6/28/06), 939 So.2d 414, 417-18, writ denied, 06-2517 (La. 1/12/07), 948 So.2d 152.

Based on the foregoing, we find that the trial court did not abuse its discretion in denying Texas Brine's request for a preliminary injunction. Moreover, as the preliminary injunction is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of the controversy, and the record before us shows that the parties have been engaged in arbitration proceedings for several years, issuance of a preliminary injunction in this instance would not be appropriate. See Barber v. Louisiana Workforce Commission, 15-1598, p. 8 (La. App. 1st Cir. 6/2/16), 2016 WL 3150176, at *3 ; Concerned Citizens for Proper Planning, LLC, 04-0270 at pp. 6-8, 906 So.2d at 664-65.

CONCLUSION

For the foregoing reasons, we affirm the November 15, 2017 judgment of the trial court denying Texas Brine's request for the issuance of a preliminary injunction to enjoin the arbitration proceedings between it and Occidental Chemical Corporation and deny the application for supervisory writs seeking to overturn the same. All costs of this appeal are cast to the appellant, Texas Brine Company, LLC.

JUDGMENT AFFIRMED; WRIT DENIED.

      The parties actually named in the lease were Texas Brine Corporation, the predecessor to Texas Brine Company, LLC, and Hooker Chemicals & Plastics Corporation, the predecessor of Oxy Chem.

      The 2004 Asset Purchase Agreement executed by Basic Chemicals Company and Vulcan Materials Company states, in pertinent part:
      Whereas, concurrently with the execution and delivery hereof ... Occidental Chemical Corporation, ... holder of all of the outstanding equity interests of [Basic Chemicals Company], has agreed to guarantee the representations, warranties, covenants, agreements and other obligations of [Basic Chemicals Company] herein pursuant to the terms and conditions of a guarantee, the form of which is attached as Exhibit B-1 hereto[.]
      In its cross claim against Texas Brine in the underlying litigation, Oxy Chem averred that Basic Chemicals Company later merged into Oxy Chem.

      Section 12.10 of the 2000 Amended and Restated Operating and Supply Agreement is titled "Arbitration" and states in part, "[a]ny dispute, controversy or claim arising out of or relating to this Agreement or the breach, validity or termination thereof shall be finally settled by arbitration."

      The request was contained in a pleading titled "Texas Brine Company, LLC's Amended & Supplemental Incidental Demand and Petition for Injunctive Relief."

      Section 11.1 of the 2000 Amended and Restated Operating and Supply Agreement states:
      Assignment by Vulcan. This Agreement and all rights and obligations hereunder may be assigned by Vulcan to any person, firm or corporation acquiring the facilities of Vulcan at Geismar, Louisiana. This Agreement shall be binding upon the successors and assigns of Vulcan. No transfer or assignment hereof shall relieve Vulcan of its obligations hereunder.

      See 9 U.S.C. §§ 1 -16. Section 12.10, the arbitration provision of the 2000 Amended and Restated Operating and Supply Agreement, states in part that "[t]he arbitration shall be governed by the U.S. Federal Arbitration Act."


text:
    Jennifer Marvel CHRISTOPHE and Amber Nicole Hicks v. Brienne Elisse WASHINGTON, Allstate Property and Casualty Insurance Company, Kiawana Miller, ABC Insurance Company, and the City of Maringouin
    NUMBER 2017 CA 0512 NUMBER 2018 CW 0691
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 14, 2019
    Chad A. Aguillard, New Roads, LA, Counsel for Plaintiff/Appellant, Jennifer Marvel Christophe
    R. Layne Royer, Heather M. Royer, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Amber Nicole Hicks
    Candice L. Rodgers, Baton Rouge, LA, J. Scott Thomas, Baton Rouge, LA, Counsel for Defendant/Appellee, The Town of Maringouin
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

      The Town of Maringouin was erroneously referred to as the City of Maringouin in plaintiffs' petition.

   GUIDRY, J.

Plaintiff/Appellant, Amber Nicole Hicks, appeals from an August 11, 2016 trial court judgment granting summary judgment in favor of defendant, Town of Maringouin, and dismissing her claims against it with prejudice. Additionally, the Town of Maringouin filed an application for supervisory review, seeking review of a separate trial court judgment signed on April 25, 2018, denying its motion to strike and exception raising the objection of prescription. For the reasons that follow, we affirm the August 11, 2016 judgment and deny the Town's application for supervisory review.

FACTS AND PROCEDURAL HISTORY

On April 13, 2013, Jennifer Christophe was operating a 2005 Hyundai westbound on Landry Drive approaching its intersection with Railroad Avenue in the Town of Maringouin (the Town). Hicks was a passenger in Christophe's vehicle. At the same time, Brienne Washington was operating a 1997 Toyota owned by Morris Miller, the father of Washington's passenger, Kiawana Miller, heading southbound on Railroad Avenue. Washington executed a left turn, entered the intersection of Landry Drive and Railroad Avenue, and collided with the vehicle operated by Christophe.

Thereafter, Christophe and Hicks filed a petition for damages, seeking damages for injuries sustained as a result of the accident and naming as defendants: Washington and her insurer, Allstate Property and Casualty Insurance Company (Allstate); Kiawana Miller and her insurer, ABC Insurance Company (ABC); and the Town. As to the Town, plaintiffs asserted that it is liable for plaintiffs' damages because a stop sign that was supposed to be at the end of Railroad Avenue was not where it should have been and therefore, the Town is liable for failure to maintain the traffic control system in a reasonably prudent manner.

Plaintiffs filed a supplemental and amending petition on April 30, 2015, naming James D. "Buddy" Caldwell, Louisiana Attorney General; Sherri H. Lebas, Secretary, Louisiana Department of Transportation and Development; and Bud Thompson, Director, Louisiana Office of Risk Management, as additional defendants. Plaintiffs asserted that, alternatively, the State of Louisiana, through the Department of Transportation and Development, is the legal entity responsible for the maintenance and control of traffic signals on Louisiana roadways and is liable for its failure to maintain the traffic control system in a reasonably prudent manner. Plaintiffs also filed a second supplemental and amending petition naming Christophe's uninsured/underinsured motorist insurer, Republic Fire and Casualty Insurance, as a defendant.

On April 1, 2016, the Town filed a motion for summary judgment, asserting that plaintiffs are unable to establish that the Town had custody and control of the roadway and stop sign at issue and alternatively, that plaintiffs cannot establish that the Town had actual or constructive notice that the stop sign was missing. The Town attached a copy of the deposition of Lee Butler, utility superintendent for the Town, to its motion. Thereafter, plaintiffs filed an opposition, attaching an affidavit from Hicks and several pictures of the road, intersection, and street sign.

The hearing on the Town's motion was set for June 2, 2016. However, the trial court continued the matter to July 21, 2016. Thereafter, the Town filed a supplemental and amended memorandum in support of its motion for summary judgment, asserting that the affidavit signed by Hicks and filed in response to its motion for summary judgment conflicts with her prior deposition testimony, that she offers no explanation or justification for any inconsistency, and as such, it does not create a genuine issue of material fact where one did not previously exist. The Town also requested that the photographs attached to plaintiffs' opposition be stricken as not complying with La. C.C.P. art. 966(A)(4). The Town attached a copy of Hicks's deposition to its supplemental memorandum.

The plaintiffs filed a supplemental opposition on July 12, 2016, asserting that Hicks's affidavit was not a material change from her previous deposition testimony and arguing that the photographs were properly before the court on the motion for summary judgment, because they were attachments to Christophe's deposition. Plaintiffs attached a copy of Christophe's deposition to their supplemental opposition in addition to the deposition testimony of Hicks and an affidavit from Anitra Anderson.

The Town thereafter filed a reply to plaintiffs' supplemental opposition. The Town moved to strike plaintiffs' response as an expansion of the pleadings, due to its non-conformity with La. C.C.P. art. 966, and as being in violation of the trial court's instructions on June 2, 2016. The Town claimed that the June 2, 2016 hearing was continued to allow the parties additional time to brief the issue of subsequently filed affidavits, but that plaintiffs had taken the opportunity to expand the pleadings, submit new evidence that had not been disclosed during discovery, and to submit additional evidence not compliant with La. C.C.P. art. 966.

Following a hearing on July 21, 2016, the trial court signed a judgment granting the Town's motion to strike the photographs attached to plaintiffs' opposition as not in conformity with La. C.C.P. art. 966 ; granted the Town's motion to strike the affidavit of Hicks as it was not filed timely and falls within the subsequently filed affidavit rule; and granted the Town's motion for summary judgment, dismissing all of plaintiffs' claims against it with prejudice. Hicks filed a motion for devolutive appeal from the trial court's judgment.

After Hicks filed her motion for appeal, she filed in this court a Motion to Continue Date to File Appellant's Brief and Supplement the Record, individually and on behalf of her minor child, Dustin O'Brien Dixon, Jr. After this court granted Hicks's motion, she thereafter filed a Second and Third Motion to Continue Date to File Appellant's Brief and Supplement the Record, also individually and on behalf of her minor child. Hicks also filed a motion to stay the appeal and correspondence, all individually and on behalf of Dixon.

Thereafter, Hicks filed in the trial court, individually and on behalf of Dixon, a petition to annul judgment and a Second Ex-Parte Motion to Supplement the Appellate Record. The Town responded by filing a motion to strike the petition and any reference to Dixon in these proceedings and also filed an exception raising the objection of prescription, claiming Hicks's claims on behalf of Dixon, raised for the first time in Hicks's Motion to Continue Dates to File Appellant's Brief, are prescribed. Thereafter, the trial court signed a judgment on April 25, 2018, denying Hicks's motion to supplement the appellate record; denied the Town's motion to strike Hicks's Second Ex-Parte Motion to Supplement the Appellate Record, finding that the appellate court should decide this issue; and denied the Town's exception raising the objection of prescription, finding that it lacked jurisdiction to consider the exception because the matter was on appeal.

On May 23, 2018, the Town filed a motion to strike in this court, requesting that this court strike any reference to Dixon in the prior motions filed by Hicks in this court and also filed an exception raising the objection of prescription, seeking to dismiss all claims for damages of Hicks on behalf of her minor child, Dixon. Additionally, the Town filed an application for supervisory writs seeking review of the trial court's April 25, 2018 judgment denying its motion to strike and exception raising the objection of prescription. The writ application was referred to the panel hearing the appeal, and we now consider the merits of the appeal, as well as the Town's writ application, motion to strike, and exception raising the objection of prescription.

DISCUSSION

Motion for Summary Judgment

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. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly 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). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F).

On a motion for summary judgment, the burden of proof is on 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).

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact. Clark v. J-H-J Inc., 13-0432, pp. 3-4 (La. App. 1st Cir. 11/1/13), 136 So.3d 815, 817, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Nash v. Rouse's Enterprises, LLC, 15-1101, p. 3 (La. App. 1st Cir. 2/26/16), 191 So.3d 599, 600-601.

A plaintiff may recover damages from a public entity, such as the Town, under a theory of negligence based on La. C.C. art. 2315 or a theory of custodial liability based on La. C.C. art. 2317, as modified by article 2317.1 and La. R.S. 9:2800. Morgan v. City of Baton Rouge, 06-0158, p. 5 (La. App. 1st Cir. 4/4/07), 960 So.2d 1013, 1016, writ denied, 07-1239 (La. 9/21/07), 964 So.2d 342. The burden of proof is the same under either negligence or custodial liability. The plaintiff must prove: (1) the public entity had custody of the thing that caused the plaintiffs damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause in fact of the plaintiff's injuries. Morgan, 06-0158 at pp. 5-6, 960 So.2d at 1016.

In seeking summary judgment, the Town asserted that the plaintiffs are unable to establish that the Town had custody of the stop sign or that it had notice of the missing stop sign prior to plaintiffs' accident. In support of its summary judgment, the Town submitted the deposition testimony of Lee Butler, the utility superintendent for the Town. Butler stated that the stop sign at Railroad Avenue was a state stop sign. Butler further stated that prior to the accident at issue, he had never received a complaint or any notification that the stop sign was down. On the date of the accident, Butler stated that he was contacted by a police officer, went to the accident scene, noticed that the stop sign on the north side of Railroad Avenue was missing, and replaced the sign at the request of the officer. However, Butler stated that the State later replaced the sign temporarily put up by the Town after the accident with one of its own signs.

Accordingly, the Town pointed out that plaintiffs are unable to establish that the Town either had custody of the stop sign at issue or that it had notice that the stop sign was missing prior to the accident, and the burden shifted to the plaintiffs to come forward with evidence demonstrating that they would be able to meet their burden of proof at trial. In an effort to meet this burden, the plaintiffs submitted the affidavit of Hicks, wherein she states:

I personally observed Lee Butler and another city employee known only to me as Moe, taking down the standard grey steel poled stop signs throughout the City and replacing them with the black New Orleans style poles approximately one-week prior [to] the accident that occurred on April 13, 2013 ... [and] particularly remember them replacing the sign located at the intersection of Railroad Avenue and Landry Drive.

However, Hicks's affidavit contradicts her prior deposition testimony, wherein she stated that "they were changing-painting the stop signs/[poles]" around the time of the accident, but she did not know who was painting the poles.

A subsequent affidavit in contradiction to prior deposition testimony is not sufficient to create an issue of fact precluding summary judgment without some explanation or support for the contrary statement. McCastle-Getwood v. Professional Cleaning Control, 14-0993, p. 7 (La. App. 1st Cir. 1/29/15), 170 So.3d 218, 222 ; see also Douglas v. Hillhaven Rest Home, Inc., 97-0596, p. 6 (La. App. 1st Cir. 4/8/98), 709 So.2d 1079, 1083, writ denied, 98-1793 (La. 10/30/98), 727 So.2d 1161 ; LeBlanc v. Dynamic Offshore Contractors. Inc., 626 So.2d 16, 21 (La. App. 1st Cir. 1993). Because Hicks does not offer any explanation for her inconsistent testimony, we find that the affidavit is not sufficient evidence to establish that she will be able to satisfy her evidentiary burden of proof at trial and therefore, the Town is entitled to summary judgment as a matter of law.

Motions to Strike

As previously noted, Hicks has filed several motions and correspondence in this court individually and on behalf of her minor child, Dixon. Additionally, subsequent to the lodging of her appeal with this court, Hicks filed a Second Ex-Parte Motion to Supplement the Appellate Record in the trial court, also individually and on behalf of Dixon. However, Hicks had not previously raised any claims on behalf of Dixon in the trial court, and any such claims were not before the trial court at the time the Town filed its motion for summary judgment. As such, the Town filed with this court a motion to strike any references to Dixon in the motions filed with this court and also filed a motion to strike Hicks's Second Ex-Parte Motion to Supplement the Appellate Record in the trial court, because Dixon is not a proper party to these proceedings.

A motion to strike is provided for in La. C.C.P. art. 964, which states that "[t]he court on motion of any party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to strike is a means of cleaning up the pleadings, not a means of eliminating causes of action or substantive allegations. State, by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd., 17-0448, p. 16 (La. App. 1st Cir. 2/8/18), 242 So.3d 597, 607.

Because Hicks failed to assert any claims on behalf of Dixon in the trial court prior to trial court's judgment granting summary judgment in favor of the Town, we find that any such claims are not a part of the judgment and therefore, any reference to them on appeal is impertinent. Therefore, we grant the motion to strike filed by the Town with this court, seeking to strike any references to Dixon in the motions filed with this court.

With regard to the Town's motion to strike Hicks's Second Ex-Parte Motion to Supplement the Appellate Record, the trial court denied the Town's motion, and the Town now seeks supervisory review of the trial court's decision. As evidenced by the trial court's judgment denying the Town's motion and the Town's argument in its writ application, the Town limited its motion to strike to one pleading, namely, Hicks's Second Ex-Parte Motion to Supplement the Appellate Record. In the same judgment denying the Town's motion to strike, the trial court also denied Hicks's Second Ex-Parte Motion to Supplement the Appellate Record. Accordingly, to the extent that the trial court denied the motion filed by Hicks, and Hicks did not seek supervisory review of the trial court's decision or file any request for supplementation with this court, we find the Town's motion to strike this pleading moot. See In re E.W., 09-1589, pp. 4-5 (La. App. 1st Cir. 5/7/10), 38 So.3d 1033, 1036-37.

Prescription

The Town has also filed an exception raising the objection of prescription, both in this court and in the trial court, claiming that Hicks has raised claims on behalf of Dixon for the first time in a motion to continue dates to file appellant's brief, and that any such claim is prescribed. The trial court denied the Town's exception filed in the trial court, finding that it lacked jurisdiction to consider the matter as it was on appeal, and the Town seeks supervisory review of the trial court's decision.

To the extent that the Town argues that reference to any claim on behalf of Dixon in Hicks's motions to continue dates to file appellant's brief somehow asserts a claim on behalf of the minor child, we note that we have stricken those references in the motions at issue pursuant to the Town's motion to strike filed with this court. Accordingly, because we have granted the Town's motion to strike any references to Dixon in the motions to continue dates to file appellant's brief, we find the Town's exception filed with this court and review of the exception filed with the trial court is moot.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of the Town and dismissing Hicks's claims against it with prejudice. We also grant the Town's motion to strike filed with this court, but we deny as moot the Town's exception raising the objection of prescription and the Town's request for supervisory review. All costs of this appeal are assessed to appellant, Amber Nicole Hicks.

JUDGMENT AFFIRMED; MOTION TO STRIKE ON APPEAL GRANTED; PEREMPTORY EXCEPTION DENIED; WRIT DENIED.

      On December 3, 2015, the trial court signed an order dismissing Washington, Allstate, and Miller as defendants.

      We note that the record demonstrates that the Town objected to consideration of the Hicks's affidavit as evidence in opposition to the Town's motion for summary judgment. However, it does not contain a formal motion to strike.

      We note that the motion to strike contained in the Town's writ application indicates that the Town sought to strike a petition to annul judgment filed by Hicks in the trial court, which also stated that it was filed by Hicks individually and on behalf of Dixon. However, the judgment from which the Town seeks supervisory review, as well as the Town's argument in its writ application, relates solely to a motion to strike the Second Ex-Parte Motion to Supplement the Appellate Record. As such, our review is limited to this issue.