author: AMY, Judge.

text:
    STATE of Louisiana v. Christopher Lee WAGNON
    18-446
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Annette Fuller Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Christopher Lee Wagnon
    Asa A. Skinner, District Attorney, Post Office Box 1188, Leesville, LA 71496-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Terry W. Lambright, 118 S. Third Street, Suite A, Leesville, LA 71446, (337) 239-6557, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   AMY, Judge.

Pursuant to a plea agreement, the defendant entered guilty pleas to three counts of oral sexual battery and to one count of third degree rape. The trial court subsequently imposed seven-year, hard labor sentences for each of the three convictions for oral sexual battery and ordered that they be served without benefit of parole, probation, or suspension of sentence. The trial court further imposed a twenty-year sentence, also to be served at hard labor and without benefit of parole, probation, or suspension of sentence, for the third degree rape conviction. The trial court ordered that all sentences are to be served concurrently. The defendant appeals. For the following reasons, we affirm. We further remand this matter with instructions regarding registration and notification requirements.

Factual and Procedural Background

By October 2017 bill of information, the State charged the defendant, Christopher Lee Wagnon, with five counts or oral sexual battery, violations of La.R.S. 14:43.3(A)(1) ; one count of sexual battery, a violation of La.R.S. 14:43.1 ; one count of indecent behavior with juveniles, a violation of La.R.S. 14:81(A)(1) ; and one count of third degree rape, a violation of La.R.S. 14:43(A)(1). Although initially entering a plea of not guilty, the defendant entered into a plea agreement in January 2018. Thereby, the defendant changed his plea to guilty of three counts of oral sexual battery and guilty of one count of third degree rape. The State offered the following factual background for the plea:

On the Bill of Information 91,693, Judge, generally it is contended that back between the period of time of July, 2016 through a period of time of January of 2017 that on a number of occasions, numerous occasions, that this defendant did travel to the grandparents['] home of the young victim, M.T.,[ ] who at the time - - his date of birth was 10/18/02, and on those occasions did solicit this 14 year old at the time by enticing him with tobacco, alcohol, for sexual favors. That occurred on numerous times with this young victim. With respect to the other victim, C.V., whose date of birth was 10/13/2002, on at least several of those occasions this victim was present and this defendant did also through solicitation with alcohol and tobacco did engage this young man to engage in sexual acts. For purposes particularly of the counts the State would contend in Count Number 1 that this defendant did commit oral sexual battery upon M.T., a male juvenile, whose date of birth was 10/18/02 and that he did intentionally touch the genitals of the victim, M.T., with his mouth. The victim was not the spouse of the offender and the victim was under the age of 15 and the victim was at least three years younger than the offender. That occurred on July - - in July of 2016. Under Count Number 2 of that Bill of Information the State would again contend that this defendant did commit oral sexual battery upon M.T., a male juvenile, whose date of birth was 10/18/02 in that he did intentionally touch the genitals of the victim, M.T., with his mouth. The victim again was not the spouse of the offender and the victim was under the age of 18 and the victim was at least three years younger than the offender. Again, under Bill of Information 91,693, Count Number 7, the State would contend that this defendant committed oral sexual battery upon C.V., a male juvenile, whose date of birth was 10/13/02 in that he did intentionally touch the genitals of the victim, C.V., with his mouth. The victim was not the spouse of the offender and the victim was under the age of 15 and the victim was at least three years younger than the offender. Under Count 8 of Bill of Information 91,693 it's contended that this defendant committed third degree rape in that he did engage in anal sexual intercourse with C.V. whose date of birth was 10/13/02, a male juvenile, without lawful consent because the victim, C.V., was incapacitated at the time and incapable of resisting or understanding the nature of the act by reason of a stupor or some abnormal condition of the mind produced by intoxicating agents. The offender knew or should have known that the victim was incapacitated at the time. All of these events occurred in Vernon Parish, State of Louisiana....

Pursuant to the plea agreement, the State dismissed the remaining charges.

In March 2018, the trial court sentenced the defendant to seven years at hard labor without benefit of parole, probation, or suspension of sentence for each count of oral sexual battery and to twenty years at hard labor without benefit of parole, probation, or suspension of sentence for third degree rape, with credit for time served. The sentences are to run concurrently.

The defendant thereafter filed a motion to reconsider sentence, claiming that the twenty-year sentence for third degree rape-to be served without benefit of parole, probation, or suspension of sentence-was excessive for a first felony offender who cooperated with authorities and gave a voluntary statement admitting the crimes. The trial court denied that motion by order explaining that: "Considering the record, PSI, law, specifically both mitigating and aggravating factors in CCr.P. Art. 894.1 the defendant's motion lacks merit."

The defendant appeals, assigning the following as error:

1) The sentences imposed by the trial court violate[ ] the Eighth Amendment of the Constitution of the United States and La. Const[.] Art. I, § 20, as they are nothing more than cruel and unusual punishment and, thus, excessive.
2) The trial court erred in failing to properly advise Appellant of the lifetime reporting requirements required by La. R.S. 15:544(B)(2)(a).

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. An error patent is one "that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La.Code Crim.P. art. 920(2). On review, we find no errors patent.

Excessiveness of the Sentence

In his first assignment of error, the defendant contends that his sentences are excessive, representing unconstitutional cruel and unusual punishment. See U.S. Const. amend. VIII ; La.Const. art. I, § 20. Asserting that "[a]ll four sentences are in the upper-range of sentencing possibilities[,]" the defendant contends that such an imposition was inappropriate under the circumstances of the case. He argues that the underlying offenses were not the most egregious violations of the statutes. The defendant further references various mitigating factors, including his young age (twenty seven at the time of sentencing), his first felony offender status, his cooperation as reflected by his participation in the plea agreement, and his own history as a victim of sexual abuse.

Before turning to consideration of the defendant's assignment, we address the State's contention that the defendant waived his right to appeal his sentence as part of his plea agreement. Reference to the signed "Plea Agreement" contained within the record indicates that:

By accepting this plea agreement, the defendant waives, releases and relinquishes any and all rights to appeal the conviction and sentence resulting from this plea agreement, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise.

However, the record further includes the "Waiver of Constitutional Rights and Plea of Guilty" form providing that:

I understand that I have thirty days after the rendition of the judgment to file a motion to appeal my sentence or any other orders or judgments of the court.

Additionally, at the sentencing hearing, the trial court informed the defendant that: "You have 30 days after the judgment or ruling from which the appeal is taken [sic] either in open court or by written motion."

In State v. McAdory , 17-571 (La.App. 3 Cir. 1/4/18), 237 So.3d 539, a panel of this court recently considered the waiver argument advanced by the State. Comparison indicates that the defendant in that case ostensibly waived his right to raise sentencing issues on appeal by signing a plea agreement form using the same language as that now under consideration. The panel explained:

[T]he question is whether the clause stating that Defendant waives his right to appeal his conviction and sentence should be upheld as valid. The State argues that because the supreme court found in State v. Bordelon , 07-525 (La. 10/16/09), 33 So.3d 842, that even a capital defendant sentenced to death may waive his right to appeal, the waiver should be considered valid so long as it was given knowingly and intelligently. We caution, however, that the Bordelon court also noted it was still required to review the defendant's capital sentence for excessiveness under La.Code Crim.P. art. 905.9. Although the excessiveness issue in Bordelon is not relevant in the instant matter, we note that the trial court instructed Defendant at sentencing that, "[y]ou have two years from the date this sentence becomes final to assert any claim for post conviction relief and you have 30 days in which to file an appeal." We will, therefore, address Defendant's appeal.

Id. at 543. Given the record before the court, we find that the circumstances of this case similarly render consideration of the defendant's sentence for excessiveness appropriate. Accordingly, we turn to that review.

First, and while the terms of imprisonment imposed in this matter are within the applicable statutory range, such a sentence may be excessive under certain circumstances, i.e. , when it is found to be "so grossly disproportionate to the severity of the crime as to shock our sense of justice" or "makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering." State v. Guzman , 99-1528, 99-1753, p. 15 (La. 5/16/00), 769 So.2d 1158, 1167.

In State v. Fruge , 14-1172, p. 6 (La. 10/14/15), 179 So.3d 579, 583 (citations omitted), writ denied , 14-1180 (La. 10/14/15), 179 So.3d 595, the supreme court further explained that:

In determining whether the penalty is grossly disproportionate to the severity of the crime, a reviewing court must consider the punishment and the crime in light of the harm to society caused by its commission and decide whether the penalty is so disproportionate to the crime committed as to shock the sense of justice.
The following factors are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime: the nature of the offense and the offender, a comparison of the punishment in this case with the sentences imposed for similar crimes, the legislative purpose behind the punishment, a comparison of the punishment with sentences imposed for similar crimes, and a comparison of the punishment provided for this crime in other jurisdictions.

Also, as urged by the defendant in his brief to this court, sentences that are "at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense." State v. LeBlanc , 09-1355, p. 10 (La. 7/6/10), 41 So.3d 1168, 1173. Importantly, an "appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D).

Following review, we find that the record supports the sentences imposed. At the sentencing hearing, the trial judge explained that it considered letters written on the defendant's behalf, including one written by the defendant, along with a pre-sentence investigation, and the sentencing guidelines of La.Code Crim.P. art. 894.1. After it filed the PSI and letters into the record, the trial court explained that:

In the pre-sentence investigation, Mr. Wagnon was charged with ... eight different felony counts, all involving some type of inappropriate and illegal sexual contact between a male person and somebody who is a juvenile and, so, he plead guilty to four of those as I went over earlier. And, Mr. Wagnon, as far as criminal history, is a first felony offender, so he has a pending theft charge in Allen Parish as well, according to the pre-sentence, that has not been dealt with at this point.
Substantial grounds do not exist to justify or excuse Mr. Agnon's conduct in this matter. He did not act under strong provocation by the victim or others, matter of fact, he either - - he bought them alcohol and got them drunk and then he would perform oral sex or anal sex on the victim.
He's approximately 27 years old, he seems to be in good health, his employment is with Cajun Dave's in Oberlin from the PSI, he graduated high school and attended some college at McNeese State University, does not - - PSI does not reveal any type of history of drugs or alcohol abuse. He had not received any treatment in the past, he is a first time felony offender, though he does have another current pending felony charge. Mr. Wagnon is not likely to respond favorably to probationary treatment. There is an undue risk that during the period of a suspended sentence or any type of probation that the defendant will commit another crime. The defendant is in need of correctional treatment or a custodial environment will be the most effective means to this case and a lesser sentence will deprecate the seriousness of the defendant's offense.

Reference to jurisprudence involving similar considerations as that remarked upon by the trial court reflects commensurate sentences. For example, in State v. Jones , 15-0123 (La.App. 4 Cir. 12/2/15), 182 So.3d 251, writ denied, 16-0027 (La. 12/5/16), 210 So.3d 810, the defendant was originally charged with aggravated rape and second degree kidnapping in the beating and rape of his former girlfriend, but the charges were amended to aggravated second degree battery and forcible rape. A jury convicted the defendant of second degree battery and simple rape. After the attack, the victim suffered panic attacks, post-traumatic stress syndrome, depression, anxiety, and required extensive therapy and medication. The defendant in that case had no prior felony convictions, was thirty-two years old, had earned a high school diploma, and had job prospects as a restaurant manager. The defendant received the maximum sentence of twenty-five years for simple rape and five years for second degree battery. The trial court ordered that the sentences be served concurrently.

In State v. Martinez , 39,332 (La.App. 2 Cir. 12/22/04), 890 So.2d 761, the seventeen-year-old defendant was charged with two counts of oral sexual battery involving two female juveniles. He entered a plea of guilty to one count, and the State dismissed the other count. The defendant had no criminal history, but the trial court found no other mitigating factors. He had been drinking on the evening of the single incident. The second circuit noted the significant reduction in sentencing exposure the defendant gained from his plea agreement and affirmed the trial court's imposition of the maximum ten-year sentence.

Finally, in Fruge , 179 So.3d 579, the defendant was convicted of the forcible rape of one victim and the simple rape of a second victim two years later. On review, the supreme court considered whether the trial court abused its sentencing discretion by imposing the maximum, twenty-five year sentence for simple rape. In addition to the observation that the defendant's conduct in that case was violent, brutal, and manifested deliberate cruelty, the supreme court pointed out that he was convicted of "separate incidents during which he took advantage of different intoxicated young women years apart." Fruge , 179 So.3d at 584. The supreme court continued, explaining:

Important to the consideration of the excessiveness of the simple rape sentence is the fact that the district court ordered the sentences in this case to run concurrently. Under La.C.Cr.P. art. 883,[ ] it is presumed that consecutive sentences are ordinarily appropriate for crimes, as in the instant case, that do not form part of the same transaction or series of transactions. Apparently because defendant was a first-time felony offender, the district court, after considering the sentences imposed for the forcible rape conviction and the simple rape conviction, believed that the imposition of concurrent rather than consecutive sentences was proper.
The crime of simple rape presupposes that the defendant has taken advantage of the victim's abnormal state of mind induced by intoxication or any other cause. See La.R.S. 14:43(A). That a defendant may have taken advantage of an unconscious or sleeping victim alone does not place him among the most blameworthy of offenders committing the crime of simple rape. Nevertheless, the evidence related to the similar sexual assaults in this case shows that this defendant had engaged in a pattern of preying on young, incapacitated women, a factor the district court was free to consider in rendering the sentences in this case. Considering defendant's 2006 rape of J.H. in the context of his behavior over an extended period of time, rather than in isolation, we are unable to find that the district court manifestly abused its broad sentencing discretion by imposing the maximum term of imprisonment for the rape of J.H., particularly since the district court would have been justified in ordering consecutive sentences in this case, thus, extending the period for parole ineligibility. Under the facts of this particular case, the reduction in sentencing exposure that defendant received by the district court's decision to order the sentences to run concurrently supports the constitutionality of defendant's simple rape sentence.

Id. at 584-86 (footnotes omitted).

Similar to Fruge , 179 So.3d 579, the defendant in this case received substantial benefit from his plea agreement. Had he been convicted as originally charged, he would have been exposed to possible sentences of up to ten years on each of five counts of oral sexual battery, up to ten years for sexual battery, up to seven years and a $5,000 fine for indecent behavior with a juvenile, and up to twenty-five years for third degree rape. Thus, the defendant was exposed to a total possible sentence of ninety-two years in prison and a $5,000 fine. Even on the charges to which the defendant pled guilty, he was exposed to possible sentences totaling fifty-five years in prison. However, and despite the time period over which the separate offenses occurred, the trial court imposed concurrent sentences, resulting in a significant benefit to the defendant. See La.Code Crim.P. art. 883. See also Fruge , 179 So.3d 579.

Given the circumstances of the offenses as reflected in the record, the trial court's articulation of aggravating and mitigating circumstances, and the benefit obtained through the defendant's plea, we find that the trial court did not abuse its sentencing discretion. Rather, the record reveals an adequate factual basis for its imposition of the defendant's sentences.

Offender Notification Requirements

In his final assignment, the defendant argues that the trial court failed to advise him of the lifetime reporting requirements of La.R.S. 15:544(B)(2)(a) for those convicted of third degree rape. The defendant requests that this matter be remanded to the trial court with instructions to provide him with the proper written notification of the duration and frequency of his sex offender registration.

With regard to registration and notification requirements, Louisiana Revised Statutes 15:543(A) requires the trial judge to "provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements ...." The record in this case includes a "Notification to Sex Offender" form that sets out four options for the trial court to indicate the length of time a defendant must register as a sex offender. Additionally, the defendant acknowledged his signature on the form at the plea hearing and responded "No, sir[,]" when the trial court inquired whether he had any questions concerning that form, or others, pertinent to the hearing. However, the included form does not reflect the designation of any of the four time periods applicable to various offenses. Given that silence, we find merit in the defendant's assertion that the trial court did not provide adequate notice to him that his guilty plea to third degree rape requires lifetime registration.

For that reason, we remand this matter with instructions to the trial court to notify the defendant of his notification and registration requirements by sending written notice to him within ten days of this opinion and to file written proof of the defendant's receipt of the notice in the record. See, e.g. , State v. Trice , 14-636 (La.App. 5 Cir. 12/16/14), 167 So.3d 89 ; State v. Morning , 49,300 (La.App. 2 Cir. 10/1/14), 149 So.3d 925, writ denied , 14-2354 (La. 2/19/16), 186 So.3d 1179.

DECREE

For the foregoing reasons, the convictions and sentences of the defendant, Christopher Lee Wagnon, are affirmed. We remand this matter with instructions to the trial court to notify the defendant of his notification and registration requirements for sex offenders by sending written notice to him within ten days of rendition of this opinion and to file written proof of the defendant's receipt of the notice in the record

AFFIRMED. REMANDED WITH INSTRUCTIONS.

      Initials of the victims are used to protect their identity in accordance with La.R.S. 46:1844(W).

      As reported above, the trial court sentenced the defendant to concurrent, seven-year, hard labor sentences for each of the oral sexual battery convictions. In pertinent part, La.R.S. 14:43.3 provides: "C. (1) Whoever commits the crime of oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years."
      Further, and relevant to consideration of the twenty-year, hard labor sentence for third degree rape, La.R.S. 14:43(B) provides: "Whoever commits the crime of third degree rape shall be imprisoned at hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years."

      Louisiana Revised Statutes 14:43 now refers to "simple rape" as "third degree rape," the crime to which Defendant pled guilty.

      Louisiana Code of Criminal Procedure Article 883 provides:
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

      The defendant was convicted of two counts of oral sexual battery occurring in July of 2016 and November of 2016 involving M.T. and a third count of oral sexual battery in January of 2017 involving C.V. Additionally, he was convicted of the third degree rape of C.V. in January of 2017.

      Titled "Duration of registration and notification period [,]" La.R.S. 15:544(B) provides, in pertinent part:
      (2) Any of the following persons required to register pursuant to this Chapter shall register and provide notification for the duration of their lifetime, even if granted a first offender pardon, unless the underlying conviction is reversed, set aside, or vacated, except for those convictions that were reversed, set aside, or vacated pursuant to Code of Criminal Procedure Article 893 or 894, or a similar provision of federal law or law from another state or military jurisdiction:
      (a) A person required to register pursuant to this Chapter who was convicted of an aggravated offense as defined in R.S. 15:541.
      Under La.R.S. 15:541(2)(c)(ii), "[a]ggravated offense" includes a conviction of "third degree rape under the provisions of R.S. 14:43 which occurred on or after August 1, 2015."


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    June COOLEY and Dwayne Cooley v. Dr. Ernesto KUFOY, et al.
    18-375
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Randall Scott Iles, P. O. Box 3385, Lafayette, LA 70502, Telephone: (337) 234-8800, COUNSEL FOR: Plaintiffs/Appellants - June Cooley and Dwayne Cooley
    Kathryn Montez Caraway Caraway, LeBlanc, L.L.C., 3936 Bienville Street, New Orleans, LA 70119, Telephone: (504) 566-1912, COUNSEL FOR: Defendant/Appellee - Dr. Ernesto Kufoy
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   THIBODEAUX, Chief Judge.

Plaintiffs, June and Dwayne Cooley, filed suit against Dr. Ernesto Kufoy for his alleged malpractice in treating Ms. Cooley with excessive psychotropic pharmaceutical intervention. Dr. Kufoy filed a motion for summary judgment on the ground that Plaintiffs had no expert to carry their burden of proof. After twice continuing the hearing, the trial court ultimately granted Dr. Kufoy's motion, specifically noting that Plaintiffs presented no evidence in opposition.

Reviewing the record, we find Dr. Kufoy is entitled to judgment as a matter of law because, in the absence of expert evidence in support of their claims, Plaintiffs have not proven that they could meet their burden of proof at trial. Accordingly, we affirm the trial court judgment.

I.

ISSUES

Plaintiffs raise the following issues for review:

(1) did the district judge err in granting Dr. Ernesto Kufoy's motion for summary judgment thereby dismissing Plaintiffs' claims as to medical negligence in this matter, considering Plaintiffs did not have an opportunity to complete adequate discovery?
(2) did the district judge err in granting Dr. Ernesto Kufoy's motion for summary judgment thereby dismissing Plaintiffs' claims as to medical negligence in this matter considering that Dr. Kufoy offered no supportive evidence from any internal medicine specialist or overlapping practitioner in support of his dispositive motion?

II.

FACTS AND PROCEDURAL HISTORY

This medical malpractice action arises out of complications involving abdominal surgery Ms. Cooley underwent in December 2011. At that time, Ms. Cooley complained about generalized abdominal pain to her internal medicine specialist, Dr. Ernesto Kufoy. After performing an examination and an abdominal ultrasound, Dr. Kufoy diagnosed Ms. Cooley with gallstones and referred Ms. Cooley to Dr. David Brown, a board certified general surgeon, who removed her gallbladder at Beauregard Memorial Hospital, on December 22, 2011. Following the procedure, Ms. Cooley complained of excessive abdominal pain and began experiencing levels of disorientation, with alarming bowel and bladder output.

Though Ms. Cooley was discharged on December 23, 2011, she was readmitted to the hospital on December 26, 2011. An exploratory laparotomy, performed on December 27, 2011, revealed Ms. Cooley had suffered a bowel perforation during her previous gallbladder procedure, for which Ms. Cooley was required to undergo a colostomy, performed by Dr. Brown. Following this procedure, Ms. Cooley became catatonic and unresponsive and remained hospitalized for a period substantially longer than required for the colostomy.

In their petition, Plaintiffs allege that Ms. Cooley's abnormal response was due to the cessation of anti-depressant medications prescribed and administered by Dr. Kufoy. They further allege that the medications and the amounts of said medications prescribed by Dr. Kufoy exceeded all known Physicians' Desk Reference suitable levels for administration by an internal medicine physician.

According to Plaintiffs, Ms. Cooley was restored to a normal state once she became acclimated to the withdrawal. In contrast, Plaintiffs claim that, in the months prior to the surgeries, Ms. Cooley had allegedly exhibited signs and symptoms of intolerance to the excessive medications that affected her home life, work life, and daily activities.

Plaintiffs filed their medical malpractice complaint with the Patient's Compensation Fund against Dr. Kufoy and Dr. Brown. As to Dr. Kufoy, Plaintiffs alleged "the care received [from] Dr. Ernesto Kufoy was substandard in that the excessive pharmaceutical intervention resulted in the patient having a far more complicated post-operative course than that which would be normally expected under the same or similar circumstances." Plaintiffs further alleged that Ms. Cooley's comatose state was "due to the extensive pharmaceuticals prescribed by Dr. Kufoy and taken by Ms. Cooley which were either known or should have been known by Dr. Brown."

The medical review panel (MRP) initially met and thereafter requested additional information from a psychiatrist. This information was provided by the affidavit of psychiatrist, Dr. James Blackburn. On March 3, 2015, the MRP rendered its opinion, unanimously finding no malpractice as to Dr. Kufoy. In its reasons, the MRP opined:

It is the opinion of the Medical Review Panel that the evidence submitted does not support the conclusion that the defendant, Dr. Kufoy, failed to meet the applicable standard of care which is required of health care providers, their staff, and/or employees of the same specialty for the following reasons:
There was no breach of the standard of care for a physician such as Dr. Kufoy in the prescribing of psychotropic medications for the management of treatment resistive depression in June Cooley because the combination of medications she was on resulted in adequate management of her depression. It is appropriate for an Internist to prescribe psychotropic medications and well within their field of practice. The patient responded appropriately to the medications pre-operatively and once they were able to restart the medications post-operatively she responded appropriately. The evidence submitted shows the choice of medications and dosages were appropriate and within the standard of care.

Thereafter, Plaintiffs filed the present suit against Dr. Kufoy and Dr. Brown on June 22, 2015. On June 23, 2016, Dr. Kufoy filed a motion for partial summary judgment on the ground that Plaintiffs had no expert to carry their burden of proof under La.R.S. 9:2794. Although the hearing on the motion was set for August 10, 2016, there is no indication in the record that this motion was ever heard.

On July 18, 2017, Dr. Kufoy filed a second motion for summary judgment on the ground that Plaintiffs had no expert to testify against Dr. Kufoy. He attached as an exhibit to the motion the affidavit of Dr. Daniel J. Carroll, a member of the MRP, attesting to the MRP opinion. The hearing on the motion was set for August 10, 2017.

Three days before the hearing, Plaintiffs' counsel filed an "Exception of Motions for Summary Judgment and Motion to Continue" arguing that he had temporarily not represented his clients from September 9, 2016 until April 20, 2017. According to the motion, Plaintiffs' counsel began trying to schedule the depositions of Dr. James Quillen, Dr. Blackburn, and Dr. Keith Colomb, another member of the MRP, in April 2017, but had difficulty doing so based on lack of response from Dr. Kufoy's prior counsel to any "requests for available deposition dates."

In this exception, Plaintiffs' counsel indicated that two members of the MRP testified in deposition that they were unaware of the standard of care applicable to Dr. Kufoy but would defer to Dr. Blackburn who was hired by the defense. Plaintiffs, however, did not attach any supporting deposition testimony to their exception. Moreover, Dr. Blackburn provided his affidavit to the MRP in direct response to the MRP's request for additional information.

The trial court continued the hearing to October 5, 2017. Upon Plaintiffs' unopposed motion, the trial court again continued the hearing to December 4, 2017.

Plaintiffs filed no opposition to Dr. Kufoy's motion, nor did they file a motion to continue prior to the hearing on Monday, December 4, 2017. However, during the hearing, Plaintiffs' counsel explained that he did not file an opposition to Dr. Kufoy's motion because he had just received Dr. Blackburn's deposition on Thursday, even though the deposition was taken more than two weeks earlier, on November 17, 2017. Moreover, he stated that Dr. Blackburn testified in his deposition that he disagreed with Dr. Thomas Dobbins who allegedly said, "the care was substandard."

Ruling from the bench, the trial court stated:

Based on the information I have before me, we did allow [Plaintiffs' counsel] a period of time to move forward with taking these depositions based on his exception of the motions for summary judgment and motion to continue filed August 7, 2017. There were issues between [him] and his clients, but he stated that it was not until April 20, 2017 that plaintiffs advise[d] that they wish[ed] for [him] to continue in [his] representation of them. So, [Plaintiffs' counsel] has had from April 20, 2017 until today[']s date to follow through with this information. He did do that in November and did not file appropriate information timely. Nor do I find that the information provided today meets the requirements of motion for summary judgment. And based on all of these lack of procedural technicalities, as well as the fact that there is no evidence presented in opposition to Dr. Kufoy's motion for summary judgment[,] [t]he Court will grant the motion for summary judgment [in favor of] Dr. Kufoy.

Plaintiffs' counsel then proffered Dr. Blackburn's testimony, but not the testimony of Dr. Dobbins, whose deposition had been submitted on Plaintiffs' behalf to the MRP. By written judgment dated January 22, 2018, the trial court granted Dr. Kufoy's motion for summary judgment, thereby dismissing, with prejudice, Plaintiffs' claims against him.

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. Therefore, just like the trial court, we are tasked with determining whether "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.Code Civ.P. art. 966(A)(3).

Initially, the burden of producing evidence at the motion hearing is on the mover. Schultz v. Guoth , 10-343 (La. 1/19/11), 57 So.3d 1002.

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.

La.Code Civ.P. art. 966(D)(1). If we determine that the moving party has met this burden, the burden then shifts to "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." Id. "At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial." Babin v. Winn-Dixie La., Inc. , 00-78, p. 4 (La. 6/30/00), 764 So.2d 37, 39. However, "[o]nce the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion." Id. at 40.

IV.

LAW AND DISCUSSION

The motion for summary judgment at issue herein arises in the context of a suit for medical malpractice. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794(A).

Jurisprudence has long held that expert testimony is generally required to establish the applicable standard of care, its breach, and causation. Samaha , 977 So.2d 880. The only recognized exception is where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged.

Pfiffner v. Correa , 94-924, 94-963, 94-992, pp. 9-10 (La. 10/17/94), 643 So.2d 1228, 1234.

At the outset, we note that this case is not one of obvious negligence, which would not require expert testimony to prove the elements of Plaintiffs' malpractice claim. Whether Dr. Kufoy breached the applicable standard of care and whether that breach caused Ms. Cooley's injury will turn on complex medical issues involving internal medicine, psychiatric, and pharmaceutical protocols which, by their very nature, are not within the purview of the average layperson. The medical terms, medications, and dosage notations alone are not within the lexicon of an average lay jury, which could very well require expert translations at trial. Given these circumstances, Plaintiffs will not be able to carry their burden of proof at trial without a medical expert. It logically follows, therefore, that without expert medical testimony as to the applicable standard of care as well as causation, Plaintiffs could not withstand Dr. Kufoy's motion for summary judgment.

As the record before us shows, Plaintiffs did not produce any expert medical testimony in support of their position as to standard of care, breach, or causation. In fact, Plaintiffs did not oppose or even timely submit supporting documentation in response to Dr. Kufoy's summary judgment motion. All we have before us is an affidavit of an MRP member and the MRP opinion, which opines that Dr. Kufoy did not breach the standard of care. Although Plaintiffs did proffer Dr. Blackburn's deposition, nothing in that deposition lends support for their claims.

Because Dr. Kufoy will not bear the burden of proof at trial, La.Code Civ.P. art. 966(D)(1) merely required him "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." By demonstrating Plaintiffs' lack of expert testimony to establish the essential elements of their malpractice claim, Dr. Kufoy satisfied his statutory burden of proof on summary judgment. At that point, Plaintiffs were required to put forth evidence demonstrating that they could be able to meet their burden at trial. Plaintiffs, however, did not present any evidence in support of their claims.

Although Plaintiffs place their failure to produce sufficient evidence on their inability to conduct adequate discovery, we note that the motion was not heard until five years after the initial complaint was filed and after the trial court twice continued the hearing to allow for such discovery. Accordingly, we find no merit to their argument that the motion was prematurely granted.

Having reviewed the record, we find that Dr. Kufoy is entitled to summary judgment as a matter of law because Plaintiffs have not demonstrated that there exists a material factual dispute as to the essential elements of their malpractice claim, i.e., standard of care, breach, and causation. Therefore, we affirm the judgment of the trial court.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to the Plaintiffs/Appellants, June Cooley and Dwayne Cooley.

AFFIRMED.

      Plaintiffs' claims against Dr. Brown were dismissed on December 14, 2017, when the trial court, in its written judgment, granted Dr. Brown's unopposed motion for summary judgment.

      Dr. Brown explained in his memorandum in support of his motion for summary judgment that he "contacted Dr. David [sic] Dobbins for a consultation and medical management of the patient." Other than this statement, there is little information in the record about Dr. Dobbins.


text:
    SUCCESSION OF Lawrence HEYD
    18-385
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Kenneth Michael Wright, 203 West Clarence Street, Lake Charles, LA 70601, (337) 439-6930, COUNSEL FOR APPELLANT: Lawrence Heyd, Jr.
    Russell J. Stutes, Jr., Stutes & Lavergne, LLC, 600 Broad Street, Lake Charles, LA 70601, (337) 433-0022, COUNSEL FOR APPELLEE: Roy Brent Young
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   AMY, Judge.

The appellant contested his father's will to the extent it included a provision by which his father expressly disinherited his children. Citing a head injury and associated seizure activity, the appellant asserted that he is a forced heir. The trial court rejected the plaintiff's argument, finding no merit in his claim of permanent incapacity to take care of his person or administering his estate. The trial court also concluded that, even if a forced heir, the decedent had just cause for disinherison. The present appeal followed. For the following reasons, we affirm.

Factual and Procedural Background

This matter arises within the succession proceeding of Lawrence Heyd, Sr., opened following his May 2013 death. Upon the appointment of a succession representative, the appellant, Lawrence "Tee" Heyd, Jr., filed a Rule to Invalidate Testament. Specifically, Tee challenged that aspect of Mr. Heyd's 2008 last will and testament by which he stated that:

I further declare that all of My Children are physically and mentally capable of taking care of themselves and are not forced heirs pursuant to La. Civ. Code art. 1493 (or any successor provision).
In the event any court were to judicially determine that any of my children are forced heirs pursuant to La. Civ. Code art. 1493 (or any successor provision), I further declare that My Children are intentionally disinherited and omitted from this Will as a result of a lack of contact in excess of two years, and the fact that My Children have been guilty of cruel treatment towards me as they filed a lawsuit against me during my lifetime and received a sizable settlement from me related to the lawsuit.

In his rule, Tee noted that he was "gored by a goat in the left frontal area of his cranium" and that he underwent a craniotomy in 2001. He alleged that, due to the incident and the surgery, he "suffered a traumatic brain injury, with personality change, and cognitive impairment." Tee further contended that "[h]e is also subject to seizures as a result of the accident and the surgery" and explained he "has been determined to be disabled by the Social Security Administration, the State of Louisiana, and the insurer for his then employer, Citgo Petroleum Corporation." Tee also denied Mr. Heyd's suggestion that he failed to communicate with his father. Due to these factors, Tee asserted, he was entitled to have the provision of the will purporting to disinherit him declared null and void pursuant to La.Civ.Code art. 1626.

Upon the Succession's challenge to Tee's claim, the matter proceeded to a two-day trial in September 2017. The trial court ultimately ruled in favor of the Succession and rejected Tee's assertion of incapacity as explained in its written reasons for ruling:

Mr. Heyd, Jr., is not a forced heir. Pursuant to the Louisiana Civil Code article 1493, [forced heirs are descendants] of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because off mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent. Subsection E elaborates that the definition of "permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent" shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future. A descendant's condition may fluctuate in severity and still be considered a permanent incapacity. Succession of Ardoin , 07-43 (La.App. 3 Cir. 5/30/07)[,] 957 So.2d 937.
The Plaintiff suffered from seizures resulting from a 2001 injuring when a goat horn penetrated his head. The Plaintiff's own evidence [e]stablishes that the episodes average three times per month and can last between seventeen (17) and forty-six (46) minutes. During these episodes, the degree of any incapacity is disputed, and Plaintiff's own testimony is inconsistent and creates credibility issues.
Mr. Heyd, Jr.'s disability, if currently existent, is minimal and does not materially affect the handling of his affairs. Dr. Domingue opined Mr. Heyd, Jr. was less than candid on his intake forms. No medical limitations have been placed on Mr. Heyd, Jr. Vocational experts also support that Mr. Heyd, Jr. does not belong to the protected categories La. C.C. art 1494 envisioned. In addition, Mr. Heyd, Jr. has not refilled his seizure medication in years.
The evidence[ ] adduced at trial does not meet the burden set out in La. C.C. 1493 or the case law. Mr. Heyd, Jr.'s condition is not inherited and does not render him permanently incapable of taking care of his person. While Mr. Heyd, Jr. has been diagnosed with a permanent condition that leads to short spells of incapacity, there was no evidence these spells lasted for more than an hour. Mr. Heyd, Jr. owns and operates an exotic animal breeding and sales business. This business has been run for years and has grown and expanded since conception while assisted by his wife even though she has other employment. Some of Mr. Heyd's Jr.'s work duties include traveling far distances to attend animal auctions, bidding and buying animals at these auctions, and transporting them to his farm after purchase. He is responsible for the care of these animals, which requires him to regularly feed the animals, dispense medication to the animals, and to tranquilize the animals in order for safe transport. Because these activities reflect capabilities and skills exceeding that of a person "incapable of taking care of their person or administering their estate," it is clear that Mr. Heyd, Jr. does not meet the criteria of a forced heir.

Although the trial court rejected Tee's claim of forced heir status, it found, alternatively, that even if a forced heir, his father had just cause for disinheriting him due to cruel treatment and failure to communicate. See La.Civ.Code art. 1621.

Tee appeals that judgment, arguing that:

I. The [T]rial Court erred in its application of [ La.Civ.Code art.] 1493 to the facts it found in light of the jurisprudence of the Third Circuit Court of Appeal[.]
II. The Trial Court was manifestly erroneous in several of its findings of fact in regard to the medical issues which relate to finding Lawrence Heyd, Jr. was not a forced heir pursuant to [ La.Civ.Code art.] 1493 [.]
III. The Trial Court erred in its application of [ La.Civ.Code art.] 1621(A)(2) and (A)(8) and erred manifestly in finding Lawrence Heyd, Jr. guilty of cruel treatment and failure to communicate.

Discussion

Forced Heir Status

By his first three assignments, Tee asserts that the trial court erred both in its interpretation of the jurisprudence cited in its reasons for ruling and in its factual determinations regarding his infirmity and his capabilities. In particular, he observes that the trial court recognized his periods of incapacity, but ultimately found that those periods did not support a finding of forced heir status pursuant to La.Civ.Code art. 1493.

Regarding forced heir status, La.Civ.Code art. 1493 provides:

A. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger[ ] or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.

(Emphasis added.)

While Tee questions the trial court's evaluations regarding his condition, the trial court's ruling reveals an overall determination of a failure of the burden of proof. In fact, and although it recognized some degree of inconsistency in Tee's relating of his purported incapacity, the trial court accepted that Tee experienced seizures as well as his assertion that they occurred several times a month, lasting from seventeen to forty-six minutes.

However, Tee contends in his brief that the trial court did not account for his testimony, or that of his wife, Dana, regarding the period of lethargy that follows each seizure. He thus asserts that the trial court factually erred in its determination that "there was no evidence these spells lasted for more than an hour." Yet, review supports a differentiation in the testimony regarding the occurrence of the seizure-reported by Tee to last between seventeen and forty-six minutes-and the following period of lethargy and resulting headaches. Certainly, the description of the two periods differed in their effect on Tee's capacity to care for himself. As for the latter period, the evidence was general in nature, indicating that the resulting period could vary depending on the occurrence.

For instance, Dana reported that the lethargy could last from fifteen minutes to up to three days afterward. When asked whether she had to take care of him during that period, she explained that: "he can get up and go to the bathroom, and get a drink, or whatever, but, normally, I do try to do things for him because I can tell that he's not doing good." No other testimony indicates that Tee's abilities were further limited so as to indicate that the trial court manifestly erred in failing to include that period in its determination that the "spell" lasted less than an hour. It is clear that the trial court differentiated the seizure period-a period of obvious, albeit temporary incapacity-from the period that followed. Additionally, and as a whole, review of the record supports the trial court's ultimate finding as to the period of incapacity and its ultimate finding that Tee failed to sustain his burden of proving incapacity for purposes of La.Civ.Code art. 1493(A). See Succession of Forman , 09-1455, p. 2 (La.App. 3 Cir. 5/5/10), 37 So.3d 1081, 1083 ("A trial court's consideration of the factual circumstances and severity of a potential forced heir's capacity to care for herself or administer her estate is subject to the manifest error/clearly wrong standard of review."), writ denied , 10-1100 (La. 9/3/10), 44 So.3d 684.

As pertinent in this case, forced heirs are those who "because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent." La.Civ.Code art. 1493(A). Tee, however, presented little in the way of medical testimony or documentation regarding his condition. He instead introduced various medical records resulting from his treatment and the testimony of his family practitioner, Dr. Carl Nabours. While Dr. Nabours characterized Tee's condition as "chronic" in that it will not go away, he further explained that it was his understanding that Tee was only incapacitated during the time period of the seizure. Dr. Nabours denied that Tee was mentally or physically incapacitated and acknowledged that he could take care of his own affairs. Given his treatment of Tee in his capacity as a family practitioner, Dr. Nabours explained that he did not know the details regarding the seriousness of the underlying condition and explained that he had no evidence that Tee was taking medication to control the seizure activity. When pointedly asked whether he had seen anything to "believe he's permanently incapable of taking care of himself or handling his own affairs on a regular basis[,]" Dr. Nabours replied: "I have not seen it myself, no." He denied claiming that Tee was permanently incapable of caring for himself. Dr. Nabours instead deferred to Tee's neurologist, Dr. Fayez Shamieh, on that question. Dr. Shamieh did not testify, however.

In opposition, the Succession presented expert testimony from Dr. James Domingue, a neurologist, who evaluated Tee and considered his medical records as submitted. Dr. Domingue denied that Tee had incapacity as demonstrated by his independent existence, a circumstance discussed below. Furthermore, Dr. Domingue denied that he found in the medical documentation that Tee was, in fact, diagnosed with a seizure disorder. And, even given such a condition, Dr. Domingue opined that it is potentially controllable with medication and, possibly, surgery. He denied that the condition should worsen and explained that he had no reason to believe that Tee will suffer from incapacity in the future.

Similarly, Dr. Megan Ciota, an expert in the field of clinical psychology and neuropsychology, explained that following two days of testing and evaluation, she identified no disability that would impair Tee "from being able to self-determine his day-to-day life, his legal matters, his finances, you know, sexual consent, and the like." That conclusion was reached even with Tee's description of the seizures and his feeling "drained" afterwards. She explained that "because an individual may have a relative, diminished ability doesn't make them not able to do those things and to guide their own lives." As with Dr. Domingue, Dr. Ciota's review of the submitted medical records did not reveal a diagnosis of a seizure disorder, although Tee self-reported that condition.

As its final expert, the Succession presented Dr. Larry Stokes, accepted as an expert in the field of rehabilitation counselor and mental health counselor. Dr. Stokes testified that, following testing and evaluation, he concluded that Tee is "completely employable" given the information available to him. Dr. Stokes reported identifying neither mental nor physical limitations in the records available and explained that Tee could still be competitively employable. In fact, Dr. Stokes found no documentation indicating that he could not return to his former work as a pipefitter. Because of his current employment, Dr. Stokes explained, Tee is not eligible for rehabilitation services.

Finally, and although Tee's brief to this court focuses upon the trial court's findings regarding the length of his periods of disability, it is important to recognize the trial court's additional observations regarding Tee's demonstrated ability to function in his own business and to earn an income. As noted by the trial court, Tee, along with his wife, operates an exotic animal breeding business. Tee testified at length regarding his work on their two farms, including his out-of-state travels and various activities associated with the breeding, selling, and care of the animals. While Tee and Dana both explained that she is responsible for the "paperwork" associated with business, their testimony is clear regarding Tee's active participation in the business. In fact, Dr. Nabours explained that Tee assists him at times on his own farm. Each of the experts testified regarding their impression regarding Tee's ability to continue his work in the shaping of their opinion. As noted by the trial court, such "activities reflect capabilities and skills exceeding that of a person 'incapable of taking care of their person or administering their estate[.]' "

Further, that balance of negligible medical documentation in support of Tee's position against positive evidence regarding his continued abilities distinguishes this matter from the jurisprudence advanced in the appellant's brief. See Stewart v. Estate of Stewart , 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241 ; Succession of Ardoin , 07-43 (La.App. 3 Cir. 5/30/07), 957 So.2d 937, writ denied , 07-1332 (La. 9/28/07), 964 So.2d 360. While both cases involved heirs who experienced periods of varying incapacity and were ultimately determined to be forced heirs, the remainder of the factual backgrounds of those cases are at odds with that in the present case. First, both Stewart and Ardoin addressed claims of forced heir status given the heirs' respective diagnoses of bipolar disorder, a condition described in the reporting of the cases as an inherited disorder. The heirs in both cases presented expert testimony regarding the permanency and incurable nature of their condition. Neither heir was able to maintain gainful employment. The panels in both Stewart and Ardoin remarked that the successions opposing forced heir status failed to rebut the heirs' evidence of incapacity.

Obviously, the evidence of both infirmity and capability differs in the present case. For these reasons, and following review of the record, we find no manifest error in the trial court's rejection of the forced heir claim.

Cause for Disinherison

By his final assignment of error, Tee questions the trial court's determination that he was guilty of cruel treatment and failure to communicate for purposes of La.Civ.Code art. 1621. Our above determination that the record supports the trial court's rejection of Tee's claim as a forced heir pretermits our consideration of this alternative finding. See Cat's Meow, Inc. v. City of New Orleans ex rel. Dep't of Fin. , 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193 (wherein the supreme court explained that: "The jurisprudence of this Court is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies."). Accordingly, we do not address this assignment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the appellant, Lawrence Heyd, Jr.

AFFIRMED.

      Much of the present record pertains to past litigation instituted by Tee against Mr. Heyd. The subject matter of the suits arose following Mr. Heyd's involvement as a plaintiff in Corbello v. Iowa Production , 02-0826 (La. 2/25/03), 850 So.2d 686 and following questions surrounding an inter vivos donation whereby Mr. Heyd purportedly conveyed a portion of his interest in the proceeds of that action to family members, including the appellant.

      Titled "Defenses to disinherison [,]" La.Civ.Code art. 1626 provides:
      A disinherison shall not be effective if the person who is disinherited shows that because of his age or mental capacity he was not capable of understanding the impropriety of his behavior or if he shows that the behavior was unintentional or justified under the circumstances. Proof of this defense must be by a preponderance of the evidence, but the unsupported testimony of the disinherited heir shall not be sufficient to establish this defense.

      With regard to this alternative finding, the trial court explained:
      While Mr. Heyd, Jr. does not qualify as a forced heir, a forced heir may still be disinherited if the decedent has just cause to disinherit him. La. C.C. 1494. Mr. Heyd, Jr. was properly disinherited. Louisiana Civil Code article 1621 provides the valid grounds for disinheris[on] of children by parents. Subsection (A)(2) states, "the child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury." Subsection (A)(2) states, "the child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury." Subsection (A)(8) states, "the child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years..." The disinherited must rebut the presumptions by a preponderance of the evidence that a two year period did not exist between their age of majority and the date of the will that they knew of their parent's whereabouts and failed to communicate. In re Succession of Gray , 736 So.2d 902 (La App 3 Cir 2/3/99). However, the unsupported testimony of the disinherited heir shall not be sufficient to overcome the presumption. La. C.C. art. 1624.
      Mr. Heyd, Jr. has failed to rebut the presumption of disinherison under either Subsection (A)(2) or (A)(8). The Court believes that suing one's own father can clearly be construed as mental cruelty pursuant to La. C.C. art. 1621(2). Mr. Heyd, Jr., sued his Father multiple times, including previously receiving a nearly $1,000.000 settlement from his Father. After he received his settlement, Mr. Heyd, Jr. sued his Father again to force him to file a gift tax return even though no returns were due at the time of the filing. The testimony adduced at trial clearly shows Mr. Heyd, Jr. failed to communicate with his father without just cause for numerous years prior to his death, and he even failed to go to his Father's funeral. Considering the evidence presented, the presumption has not been rebutted by the disinherited, and Mr. Heyd, Jr. was properly disinherited.

      In pertinent part, La.Civ.Code art. 1621 provides:
      A. A parent has just cause to disinherit a child if:
      ....
      (2) The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury.
      ....
      (8) The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.

      The original judgment of February 2018 included the trial court's reasons for ruling, but lacked appropriate decretal language. See Succession of Lawrence Heyd , 18-385 (La.App. 3 Cir. 6/27/18) (an unpublished motion opinion). Upon the lodging of the record in this court, the matter was dismissed and remanded "for the signing of a judgment with proper decretal language." Id. The trial court did so and signed a new judgment in July 2018. Id.

      This first definition of forced heir is inapplicable in the present case as the record indicates Tee's birth year as 1952. Mr. Heyd died in 2013.

      When counsel asked Tee for his perception of the seizure and how he knew that one was about to occur, Tee explained:
      Because I can't see. I can't see that good. It's just like looking through water running over glass, and then I start feeling like drained, I guess is the word, drained of energy, and I just get somewhere and that's it. I get somewhere and I lay down, or I get to my chair, or get to the back seat of a truck.
      Dana explained that, when experiencing the seizure, Tee would "just go[ ] into a zone" and that "[t]here is just no response from him." She also described his lack of responsiveness during that time and stated that: "It's like he goes into a zone. I can walk over and try to speak to him, and it's like he doesn't even recognize I'm even there."

      The Succession introduced Tee and Dana's wage information by way of summary and by tax return. Tee did not dispute that the gross income from their exotic animal business was $347,811 in the year of his father's death and that its net income was $64,156.


text:
    Donald Paul ARDOIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al.
    18-582 18-413
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
   Glen E. Mercer, Kourtney Twenhafel, Salley Hite Mercer & Resor, LLC, 365 Canal Street, Suite 1710, New Orleans, LA 70130, (504) 566-8800, COUNSEL FOR DEFENDANT-APPELLEE: Federated Mutual Insurance Co.

Bonita Preuett-Armour, Armour Law Firm, L.L.C., Post Office Box 8386, Alexandria, LA 71306, (318) 442-6611 COUNSEL FOR DEFENDANT-APPELLANT: State Farm Mutual Automobile Insurance Company

Paul M. Lafleur, Stafford, Stewart & Potter, 3112 Jackson Street, Alexandria, LA 71301, (337) 487-4910, COUNSEL FOR DEFENDANT-APPELLANT: Cynthia Price

Benjamin T. Lowe, Spencer H. Calahan, Attorneys at Law, 827 Saint Louis Street, Baton Rouge, LA 70802, (225) 387-2323, COUNSEL FOR PLAINTIFF-APPELLEE: Donald Paul Ardoin

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.

PICKETT, Judge.

These consolidated matters present the issue of whether a garage liability insurance policy provided coverage to an automobile (auto) dealership's customer when she was driving an auto that the dealership loaned to her while it repaired her auto. For the reasons discussed below, we affirm the trial court's judgment granting summary judgment in favor of the dealership's insurer and denying the customer's insurer's motion for a declaratory judgment.

FACTS

Donald Ardoin filed suit on December 15, 2014, alleging that he was injured in an accident that occurred when Cynthia Price failed to stop the auto she was driving behind him at a stop sign. Ms. Price was driving an auto owned by Southern Chevrolet Cadillac, Inc. that it loaned to her while it repaired her auto. Mr. Ardoin named Ms. Price and State Farm Mutual Automobile Insurance Company, her insurer, as defendants. Ms. Price filed a third-party demand against Federated Mutual Insurance Company, alleging that it issued an insurance policy which included garage liability coverage to Southern Chevrolet and that under the terms of the policy, Federated was obligated to defend her and provide her liability coverage.

State Farm filed a motion and petition to obtain a judgment declaring that Federated was obligated to provide Ms. Price a defense and liability coverage for Mr. Ardoin's claim. Ms. Price filed a memorandum supporting State Farm's request for a declaratory judgment. Federated then filed a motion for summary judgment, asserting that State Farm's motion for declaratory judgment should be dismissed because Federated's policy did not provide liability coverage to Ms. Price.

On April 16, 2018, the trial court held a hearing on the insurers' competing motions. At the conclusion of the hearing, the trial court denied State Farm's request for a declaratory judgment and granted Federated's motion for summary judgment. State Farm filed a writ application with this court, seeking reversal of the trial court's denial of its motion for declaratory judgment. It also appealed the trial court's grant of summary judgment in favor of Federated. The two matters were consolidated.

ASSIGNMENTS OF ERROR

1. The trial court erred in failing to follow the prior Third Circuit jurisprudence of Stanfield v. Hartford Accident & Indemnity Co. , 581 So.2d 340 (La.App. 3[ ] Cir. 1991) and Hargrove v. Missouri [Pacific Railroad Co. ], 00-228 (La. App. 3 Cir. 01/10/2001), 780 So.2d 454, when granting the Motion for Summary Judgment filed by Federated Mutual Insurance Company.
2. The trial court failed to follow binding jurisprudence from the Louisiana Supreme Court, namely, Marcus v. Hanover [Insurance]. Co. , [Inc. ] 98-2040 (La. 06/04/1999), 740 So.2d 603, which requires that an automobile liability policy follows the [auto], regardless of the type of permissive operation of the driver of the [auto], and thereby violated the public policy of this state.
3. The trial court failed to adhere to the legislative mandates in La.R.S. 32:900(8)(2) and 22:1282.

DISCUSSION

Summary Judgment

"Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Elliott v. Cont'l Cas. Co. , 06-1505, p. 10 (La. 2/22/07), 949 So.2d 1247, 1253 (quoting Reynolds v. Select Props., Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 ). "[A] summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). "Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment." Bernard v. Ellis , 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002 (citing Cutsinger v. Redfern , 08-2607 (La. 5/22/09), 12 So.3d 945 ).

Did the Trial Court Apply the Appropriate Jurisprudence?

In the first two assignments of error, State Farm and Ms. Price argue the trial erred in failing to apply the conclusions reached by this court in Stanfield v. Hartford Accident & Indemnity Co. , 581 So.2d 340, and Hargrove v. Missouri Pacific Railroad Co , 780 So.2d 454, in determining that Federated's policy does not provide coverage for Ms. Price.

State Farm's and Ms. Price's claims are based on the following provisions contained in Federated's policy:

SECTION II-LIABILITY COVERAGE
A. Coverage
....
2. "Garage Operations"-Covered "Autos"
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from "garage operations" involving the ownership, maintenance or use of covered "autos".
....
3. Who Is An Insured
a.The following are "insureds" for covered "autos":
(1) You for any covered "auto".
(2) Anyone else while using with your permission a covered "auto" you own, hire or borrow except:
....
(d)Your customers. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an "insured" but only up to the compulsory or financial responsibility law limits where the covered "auto" is principally garaged.
(ii)Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered "auto" is principally garaged, they are an "insured" only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance .

(Emphasis added.)

The policy provisions at issue here are essentially the same as those in Stanfield , 581 So.2d 340, and Hargrove , 780 So.2d 454. In Stanfield , the court determined that an exclusion for leased autos evidenced an "intent [ ] to provide coverage to customers of the garage who are given replacement vehicles when their vehicle is left for servicing." Stanfield , 581 So.2d at 341. The exclusion excluded coverage for any auto that the dealership "leased or rented to others," but further provided that the exclusion did not apply to any auto rented to one of the dealership's customers while their auto was being serviced or repaired. Based on this exclusion, the court made a distinction between the two different types of business conducted by auto dealerships: the sale of autos and the repair of autos. The court then concluded that the policies at issue did not provide coverage to the sales side of the business but did provide coverage to garage customers "who are given loaner vehicles when their vehicle is left for servicing." Id. at 341. Hargrove accepted and followed the reasoning espoused in Stanfield .

Douga v. Progressive Casualty Insurance Co. , 16-543 (La.App. 3 Cir. 12/7/16), 208 So.3d 394, writ denied, 16-2271 (La. 2/3/17), 215 So.3d 694, presented the same issue addressed in Stanfield , 581 So.2d 340, and Hargrove , 780 So.2d 454. In Douga , this court reviewed the distinction made in Stanfield and Hargrove , in light of conflicting opinions reached by the first and fourth circuits in Savana v. Certain Interested Underwriters at Lloyd's London , 01-2450 (La.App. 1 Cir. 7/2/02), 825 So.2d 1242 ; Baker v. Kenney , 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied , 00-2153 (La. 10/13/00), 771 So.2d 650 ; and, Gambino v. Lamulle , 97-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574. The panel declined to apply Stanfield and Hargrove and held that the reasoning in the above-cited cases applied to the policy provisions at issue.

In reaching this conclusion, the panel agreed with the first circuit's determination that Stanfield's , 581 So.2d 340, distinction between auto dealership customers and garage customers is "artificial." Douga , 208 So.3d at 399 (quoting Savana , 825 So.2d at 1244 ). Douga also agreed with Savana's conclusion that:

[U]nder La. R.S. 22:671, the primary liability coverage for a loaner vehicle is provided by the driver's policy, not the service dealer's policy . Thus, [the defendant driver's] policy which met the requirements of La.R.S. 32:900 provided the plaintiff with compensation contemplated by the Louisiana Motor Vehicle Responsibility Law. Further, because the policy provided coverage in the event the driver of the covered vehicle lacks the insurance coverage required by La.R.S. 32:900, we find that the language of the policy does not violate public policy and should be interpreted as written.

Id. (Emphasis added.) We agree with Douga's conclusion and decline to apply Stanfield or Hargrove , 780 So.2d 454.

State Farm and Ms. Price next assert that the trial court erred in failing to apply the holding of Marcus v. Hanover Insurance Co. Inc. , 98-2040 (La. 6/4/99), 740 So.2d 603, to Federated's claims. These assertions are misplaced. The supreme court held in Marcus that a "business use exclusion that excludes from coverage the named insured while operating his insured car in 'any business other than an auto business, contravenes the purpose of the Louisiana Motor Vehicle Safety Responsibility Law." Id. at 608 (emphasis added). Accordingly, Marcus applies only when an insured is operating his own auto. Moss v. Nat'l Fire &Marine Ins. Co. , 12-1084 (La.App. 3 Cir. 3/27/13), 111 So.3d 1166. Ms. Price is not an insured under Federated's policy; therefore, Marcus does not apply here.

Furthermore, the compulsory liability insurance law requires only that insurance policies provide liability coverage to the named insured and any other person driving a covered auto with the permission of the named insured. Id. Federated's policy provides liability coverage for auto dealer customers if they do not have "other available insurance" that provides coverage "up to the compulsory ... law limits" or if their insurance provides coverage for an amount less than that required by law. Therefore, the exclusion at issue does not conflict with the Motor Vehicle Safety Responsibility Law. Id (citing Dees v. Nat'l Sec. Fire and Cas. Ins. Co., 97-962 (La.App. 3 Cir. 2/11/98), 707 So.2d 137 ).

For these reasons, we find no error with the trial court's determination that Federated's policy does not provide coverage to Ms. Price.

Did the Trial Court Fail to Apply La.R.S. 32:900(B)(2) & 22:1282 ?

In their third assignment of error, State Farm and Ms. Price urge that Federated's policy contravenes La.R.S. 32:900(B)(2), which requires liability insurance policies provide coverage for persons driving with the auto owner's permission, and La.R.S. 22:1282, which requires full coverage for insureds and permissive operators. They argue that because Federated's "policy provides $500,000 in liability coverage for accidents caused by permissive operators of vehicles owned by Southern Chevrolet" but provides limited coverage for customers who are permissive operators only if they do not otherwise have state minimum liability coverage, it violates these two provisions.

This court rejected State Farm's argument regarding La.R.S. 32:900(B)(2) in Bennett v. Brown , 16-622 (La.App. 3 Cir. 12/21/16), 209 So.3d 830, writ denied , 17-146 (La. 3/13/17), 216 So.3d 803, which dealt with the policy provision at issue here. The panel looked to Alexander v. Cornett , 42,147 (La.App. 2 Cir. 7/11/07), 961 So.2d 622, writ denied , 07-1681 (La. 11/2/07), 966 So.2d 603, for guidance. In Alexander , the second circuit first noted that "a statutory omnibus clause such as [La.]R.S. 32:900(B)(2) supercedes only conflicting insurance policy provisions." Id. at 629. No such conflict existed there, nor does it exist here. The court then reiterated the basic tenet that insurance companies have the right to limit the coverage a policy provides if the limiting provision does not conflict with applicable laws or public policy. Bennett , 209 So.3d at 835 (quoting Alexander , 961 So.2d at 630 ), agreed with Alexander's conclusion that: "The provision in question does not conflict with La.R.S. 32:900(B)(2) because it provides liability coverage when the customer's insurance is inadequate to satisfy the minimum requirements of the statute."See also, Savana, 825 So.2d 1242 ; Baker v. Kenney , 767 So.2d 711 ; Gambino v. Lamulle ,, 715 So.2d 574.

We further observe that La.R.S. 22:1282 requires that all permissive users "for whom the policy provides coverage" be provided the same amount of coverage. Pursuant to the exclusion, Ms. Price is not an insured under Federated's policy. Therefore, La.R.S. 22:1282 does not apply to the claims herein.

State Farm and Ms. Price cite Rolston v. United Services Automobile Ass'n , 06-978 (La.App. 4 Cir. 12/13/06), 948 So.2d 1113, as support for this argument. In Rolston , State Farm issued a personal liability umbrella policy to the plaintiff's husband that excluded "the named insured, spouse, or anyone within the meaning of ... the definition of insured" from the coverage provided by the policy. Id. at 1115. The insured contested the validity of the exclusion, arguing that it violated public policy and that error or mistake vitiated his consent to the policy and the exclusion. Ms. Price is not an insured under Federated's policy; therefore, Rolston has no application here. This assignment of error lacks merit.

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to State Farm Automotive and Casualty Insurance Company.

AFFIRMED.

      Louisiana Revised Statutes 32:900(B)(2) requires that an owner's liability insurance policy:
      Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles."

      Louisiana Revised Statures 22:1282 provides:
      No motor vehicle liability insurance policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of, or the amount that can be recovered by, the named insured ... express or implied permissive users, for whom the policy provides coverage, to any amount less than the highest policy limit provided in the policy for the respective coverage or potential recovery.