author: KEATY, Judge.

text:
    Karen Sue THIBODEAUX v. GEICO CASUALTY COMPANY, et al.
    17-853
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2018
    Gregory Carl Weiss, Weiss & Eason, L.L.P., Post Office Box 8597, Mandeville, Louisiana 70470, (985) 626-5358, Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.
    Ann Marie LeBlanc, Caraway LeBlanc, L.L.C., 3936 Bienville Street, New Orleans, Louisiana 70119, (504) 566-1912, Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.
    David L. Viviano, Jeffery J. Guidry, Law Office of Jamie Bankston, 4000 South Sherwood Forest, Suite 403, Baton Rouge, Louisiana 70816, (225) 368-1494, Counsel for Defendant/Appellee: Vivian Boutte
    Blake R. David, Robert B. Brahan, Jr., Broussard & David, LLC, Post Office Box 3524, Lafayette, Louisiana 70502-3524, (337) 233-2323, Counsel for Plaintiff/Appellee: Karen Sue Thibodeaux
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
   KEATY, Judge.

Defendant, Walgreen Louisiana Company, Inc, (Walgreens), appeals a judgment denying its motion for summary judgment and granting the plaintiff's cross-motion for partial summary judgment based upon its finding that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff as a result of an automobile accident caused by a Walgreens employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Karen Sue Thibodeaux, was involved in a May 2, 2014 automobile accident in Lafayette, Louisiana, when her vehicle was struck by another vehicle being driven by Vivian Boutte, who was at the time employed by Walgreens. The accident occurred as Ms. Boutte was headed back to her home in Napoleonville after attending a training course recommended by her boss. A police officer who responded to the scene issued a citation to Ms. Boutte for failure to yield. As a result of the injuries she sustained in the accident, Plaintiff filed suit against Ms. Boutte and her automotive liability insurer, GEICO Casualty Company. Plaintiff also named Walgreens as a defendant, alleging that Ms. Boutte was in the course and scope of her employment with Walgreens when the accident occurred, thus making it vicariously liable for the damages caused by Ms. Boutte's actions. Walgreens denied that Ms. Boutte was in the course and scope of her employment at the time of the accident and claimed it had no liability for Ms. Boutte's negligence.

Walgreens and Plaintiff filed cross-motions for summary judgment on the issue of Walgreen's vicarious liability for Ms. Boutte's actions. In her motion for partial summary judgment, Plaintiff also claimed that Ms. Boutte's negligence was the sole legal cause of the accident.

Following a hearing, the trial court rendered judgment on June 1, 2017, denying Walgreens' motion for summary judgment and granting Plaintiff's cross-motion for partial summary judgment based upon its findings: "(1) that Vivian Boutte was in the course and scope of her employment with Walgreens at the time of this May 2, 2014 incident; (2) that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff caused by the incident; and (3) that Vivian Boutte was the sole legal cause of this incident." Walgreens appealed and is now before this court asserting the following assignments of error:

1. The trial judge erred in failing to apply the eight Orgeron[ ] factors which would have dictated a finding that Ms. Boutte was not in the course and scope of her employment with Walgreens at the time of the incident and resulted in the granting of Walgreens' Motion for Summary Judgment and the denial of Plaintiff's Cross-Motion.
2. The trial judge erred in applying a broad rather than strict construction of the term "course and scope of employment" which would have resulted in the granting of Walgreens' Motion for Summary Judgment, and the denial of Plaintiff's Cross-Motion.
3. Alternatively, the trial judge erred in not finding a genuine issue of material fact as to whether Ms. Boutte was in the course and scope of her employment resulting in the denial of both summary judgment motions.

Discussion

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

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

La.Code Civ.P. art. 966(D)(1). "Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416. Accordingly, we need not address Walgreens' assignments individually, but rather, we will discuss them as necessary in our discussion of whether either Plaintiff or Walgreens' met the burden of proving their entitlement to summary judgment.

Louisiana Civil Code Article 2320 provides, in pertinent part, that "Masters and employers are answerable for the damage occasioned by their servants ..., in the exercise of the functions in which they are employed."

In the application of Article 2320, an employer's vicarious liability for conduct not his own extends only to the employee's tortious conduct which is within the course and scope of employment.... Generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.

Orgeron , 639 So.2d at 226-27 (citations omitted).

"An employer is generally not liable for acts committed by its employee while the employee is going to or coming from work." Voinche v. Capps , 14-671, p. 5 (La.App. 3 Cir. 12/10/14), 155 So.3d 146, 151. In discussing that general rule, the supreme court noted that "an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination." Orgeron , 639 So.2d at 227. As this court noted in Voinche , however, application of that general rule "becomes more complicated" when an employer sends its employee to a different location than where that employee normally works. Voinche , 155 So.3d at 151. This court has observed:

As has been stated many times in the jurisprudence and by textbook writers, there is no precise rule or definition by which we can determine in every instance whether the employee driver of a motor vehicle is acting within the scope of his employment. Each case must be decided largely on its own facts, keeping in mind the basic idea that the use of the vehicle at the time must have been in the service of the employer or while about the employer's business.

Rollins v. New York Fire & Marine Underwriters, Inc. , 225 So.2d 663, 670 (La.App. 3 Cir. 1969), writ refused , 254 La. 855, 227 So.2d 595 (1969).

In its discussion of the course and scope issue in Orgeron , the supreme court reiterated its prior pronouncement that "[a]n employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business." Orgeron , 639 So.2d at 227 (citing LeBrane v. Lewis, 292 So.2d 216 (La.1974) ). Thereafter, the Orgeron court provided a non-exclusive list of eight factors courts should assess "in determining whether the employee's conduct is employment-rooted":

[T]he payment of wages by the employer, the employer's power of control, the employee's duty to perform the particular act, the time place and purpose of the act in relation to service of the employer, the relationship between the employee's act and the employer's business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.

Id. Unlike the liberal construction courts are to give the phrase " 'within the course and scope' of [ ] employment duties" in workers' compensation cases, a strict interpretation of the phrase is called for where a tort victim seeks to have an employer held vicariously liable for the conduct of its employee. Senac v. State Farm Mut. Auto. Ins. Co. , 09-320, p. 4 (La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127.

Ms. Boutte's deposition was the primary evidence entered both in support of and in opposition to the cross-motions for summary judgment. Ms. Boutte, a licensed pharmacist, stated that, on the date of the accident, she worked for Walgreens as a salaried employee in its Morgan City location. She explained that her pharmacy manager asked her to attend a training class on how to perform cholesterol testing, a service that Walgreens wanted to offer its customers for a fee. The class was being taught at the Walgreens headquarters in Lafayette, the Walgreens' "scheduler," Rene Nuss, told her that she "needed to come in and get that additional training," and Ms. Nuss made the arrangements for Ms. Boutte to attend that particular training session. She drove her personal vehicle to the training and submitted her mileage for reimbursement. Ms. Boutte confirmed that the Morgan City store where she worked had the equipment needed to do the cholesterol testing that she was being trained to perform. On the day of the accident, Ms. Boutte worked at the Morgan City store until about 1:00 p.m. before driving to attend the training in Lafayette. A Walgreens' employee provided the training, which began at 3:00 p.m. and lasted between thirty and forty-five minutes. Ms. Boutte recalled speaking with a Walgreens' manager for about twenty minutes before leaving for her home in Napoleonville, which was approximately ninety miles from Lafayette. She stated that she was driving cautiously because she "didn't know anything" about Lafayette.

In its brief to this court, Walgreens admits that there are no reported Louisiana cases involving the exact factual situation presented in this appeal. Walgreens argues that application of the Orgeron factors should lead this court to reverse the trial court judgment finding that Ms. Boutte was in the course and scope of her employment when the accident occurred. It points out that Ms. Boutte's shift at its Morgan City store had ended approximately three and one-half hours before the accident occurred and that she was not paid wages during her attendance at the training nor for her travel time to and from the training. It admits, however, that Ms. Boutte was reimbursed for her mileage. Walgreens suggests that the training was optional, that Ms. Boutte was not required to attend the training to keep her job, that the training "does not show up in her personnel file," and that the "motivation of Ms. Boutte was entirely personal and specifically to enhance her overall performance as a pharmacist, not to benefit Walgreens." It points out that the 'training was not conducted by either [Ms. Boutte's] pharmacy or district manager, but [by] a Walgreens' employee she did not know" and that testing "equipment used during the training was outdated, so the trainees could not check the results." Finally, Walgreens states that "[n]o cholesterol testing was performed at the store where Ms. Boutte worked through the time she left Walgreens' employment almost two years later, and Walgreens was actually backing off of actually performing these tests in general because it was rarely done at most of its stores."

We find little merit to Walgreens' arguments. When an employee is told by a supervisor that he or she needs a certain type of training, that employee can hardly be expected to disregard the suggestion or to inquire whether their job depends upon completion of that training. And while there is often an element of personal enhancement when an employee attends a training class, Walgreens' suggestion that Ms. Boutte attended the class for "entirely personal" reasons borders on the absurd. Even more ridiculous is Walgreens' suggestion that Ms. Boutte's training should have been conducted by a Walgreens' employee that she personally knew. Walgreens puts much emphasis on the fact that no cholesterol testing was ever performed at the Morgan City location where Ms. Boutte worked. We find this logic to be disingenuous, as that information was gained in hindsight, and the fact remains that Ms. Boutte's supervisor asked her to attend the training, which the Walgreens' scheduler set up for May 2, 2014. Moreover, Walgreens could not have offered the testing to its customers if it had not trained its pharmacists in how to conduct such testing, and the fact that it apparently made a business decision to discontinue cholesterol testing, when it never really embraced that endeavor in the first place, can certainly not factor into our course and scope of employment analysis. Similarly, the fact the equipment on hand at its training facility was outdated when Walgreens conducted the cholesterol training of its employees reflects poorly on Walgreens. Finally, because Walgreens controlled what was placed in its employee's records, we attach little significance to the fact that any information regarding Ms. Boutte having completed the cholesterol training was not in her personnel file.

On the other hand, our assessment of the Orgeron factors to the facts before us convince us that Plaintiff met her burden of proving the absence of genuine issues of material fact and that she was entitled to judgment as a matter of law finding that Ms. Boutte was in the course and scope of her employment with Walgreens when the accident occurred. The cholesterol training class which was held at Walgreens' headquarters in Lafayette was obviously "related to the service" of Walgreens in "time place and purpose;" Ms. Boutte's act of attending the training bore a strong "relationship" with Walgreens' business; Ms. Boutte's motivation for completing the training was to follow her supervisor's directions; and it is more than reasonable for Walgreens to expect that Ms. Boutte's would "perform the act" of completing the training her supervisor requested that she take. Orgeron , 639 So.2d at 227. We note that, because the training occurred in a city that Ms. Boutte was unfamiliar with, the chances of her getting in an accident as she navigated to and from Lafayette were increased. See Voinche , 155 So.3d 146.

As Walgreens correctly points out, no single Orgeron factor is determinative and the factors must be considered in their totality. Because the majority of the Orgeron factors preponderate in favor of us finding that Ms. Boutte was in the course and scope of her employment when the accident occurred, we conclude that Plaintiff's motion for partial summary judgment was properly granted and Walgreens' motion for summary judgment was properly denied.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in its entirety. All costs of this appeal are assessed against Walgreen Louisiana Company, Inc.

AFFIRMED.

Conery, J., concurs in part, dissents in part, and assigns reasons.

Conery, J., concurs in part, dissents in part, and assigns reasons.

I concur with the majority's decision to affirm the judgment of the trial court denying the motion for summary judgment filed by Walgreen Louisiana Co., Inc. (Walgreens). I respectfully dissent from the majority's decision to affirm the trial court's partial summary judgment in favor of Ms. Thibodeaux and against Walgreens that found Ms. Boutte was in the course and scope of her employment with Walgreens at the time of the subject collision.

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action[.]" La.Code Civ.P. art. 966(A)(2). In this case, summary judgment has certainly not secured a "just, speedy, and inexpensive determination" of this action . Instead, it has caused extensive delays and expensive, unnecessary litigation for all sides. Walgreens filed its motion for summary judgment in April 2017. Now, thirteen (13) months later, we are still arguing about whether this case is appropriate for summary judgment and if either party requests a rehearing and eventual writ to the Louisiana Supreme Court, as may reasonably be anticipated, additional delays and more litigation expenses are certain to follow.

Had this case simply gone to trial, it is highly likely that this case would have been resolved long ago. Walgreens stipulated that Ms. Boutte was at fault. Ms. Boutte, her pharmacy manager, and the Walgreens employee who set up the training in question could have testified in less than one (1) day and the case would have properly been decided on the merits where the trial judge and/or the jury could have weighed the evidence, assessed credibility, and found the facts. Instead, partial summary judgment was granted in favor of Ms. Thibodeaux and that judgment was appealed by Walgreens. Having considered the record presently before us, I find that there are genuine issues of material fact and underlying credibility evaluations that make summary judgment an inappropriate means of resolution. It is well settled that issues of credibility have no place in summary judgment procedures. See Mouton v. Sears Roebuck , 99-669 (La.App. 3 Cir. 11/3/99), 748 So.2d 61, writ denied , 99-3386 (La. 2/4/00), 754 So.2d 232. It is also "well settled that whether an employee is in the course and scope of employment is a question of fact to be determined ... on the trial on the merits. This question of fact precludes any granting of a summary judgment." Sonnier v. Bayou Boudin & Cracklins , 597 So.2d 1245, 1246 (La.App. 3 Cir. 1992) (quoting Robinson v. Estate of Haynes , 433 So.2d 294 (La.App. 1 Cir. 1983).

FACTS

On the day of the accident at issue, it is undisputed that Ms. Boutte was a full-time, salaried pharmacist at Walgreens in Morgan City. She clocked out at 1:00 p.m. from her job in Morgan City when her regular shift ended. She then traveled in her own vehicle and on her own time to the Walgreens district headquarters in Lafayette, Louisiana, where she attended an optional forty-five-minute training on cholesterol testing put on by a Walgreens employee.

After Ms. Boutte left the Walgreens premises in Lafayette, she was free to go anywhere she liked. She certainly was no longer "under the control" of Walgreens. She was leaving Lafayette in route to her home in Napoleonville when the accident at issue occurred.

Ms. Boutte was not paid wages for her time driving to and from the Walgreens training or for the time spent at the training because she was a full-time salaried employee who finished her regular shift at 1:00 p.m. on the afternoon of the accident to attend the optional training. Ms. Boutte initially testified in her deposition that she was paid mileage for her trip, but this issue is now disputed by Walgreens in a proffer it made.

Counsel for Ms. Thibodeaux claims that Ms. Boutte was contacted by the Walgreens' "scheduler," Ms. René Ness, about the need for her to attend the training. According to Ms. Boutte's deposition testimony, Ms. Ness told her she "needed to" and "probably should" get the additional cholesterol training. However, despite evidence supporting the fact that "the scheduler" said Ms. Boutte "needed to" attend the training, it is Walgreens' position that Ms. Ness had no supervisory authority over Ms. Boutte. Ms. Ness was responsible for scheduling part time pharmacists known as "floaters." As a full time pharmacist, Ms. Boutte was not a "floater." Contrary to the majority's statement that Ms. Ness was Ms. Boutte's "boss" and "supervisor," Ms. Boutte's deposition testimony was uncontradicted that at the time of the accident, she was permanently assigned to the Morgan City location as a salaried staff pharmacist and was not a "floater" subject to the supervision of Ms. Ness.

Ms. Boutte's deposition testimony was that she was supervised by the pharmacy manager as well as a district manager, who oversaw the online courses that Ms. Boutte was required to take to maintain her certification as a pharmacist and maintain her employment at Walgreens. Records of mandatory courses are kept in Ms. Boutte's personnel file at Walgreens. Ms. Boutte further testified in her deposition without contradiction that the cholesterol training was not a requirement for her to maintain her position or certification as a pharmacist, and the training she received on May 2, 2014, does not appear in her Walgreens' personnel file introduced as part of the summary judgment evidence, which corroborates Walgreens' contention that the cholesterol testing training was voluntary.

Ms. Boutte's deposition testimony is replete with her contention that neither of her direct supervisors ever told her that she was required to attend the cholesterol training on May 2, 2014, and that the training was purely optional, strictly for her own knowledge. Walgreens contends that Ms. Boutte was not in the course and scope of her employment at the time of the collision in question, and the trial court was clearly wrong in denying their motion and granting plaintiff's motion finding that she was.

In considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ).

The Course and Scope of Employment Question

Louisiana Civil Code Article 2320 provides, "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." The sole issue before us is whether summary judgment on the course and scope of employment issue was proper for either party under the facts and circumstances of this case. For an employer to be vicariously liable for the actions of their employee, the court must determine whether the "damage occasioned" by the employee was in the "course and scope" of his employment duties. See Orgeron on Behalf of Orgeron v. McDonald , 93-1353 (La. 7/5/94), 639 So.2d 224.

In Orgeron , the court held that an employee was within the course and scope of employment for purposes of finding the employer vicariously liable when he was in an automobile accident that injured third parties while driving to a work site . It explained that "[u]nder the overall circumstances, the risk of harm for any casualty caused by the employee ... was fairly attributable to the employer" even though the employee was not paid wages or expenses for the trip. Orgeron , 639 So.2d at 228.

In a recent decision by our court interpreting the "course and scope" question, Judge Saunders, writing for the panel, succinctly stated the applicable law:

When considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't, 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ). Moreover, although "summary judgments are now favored, 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. "

Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (emphasis added).

A panel of this court further noted, "Contrary to workmen's compensation cases, courts strictly construe this phrase in cases involving damage claims for personal injuries. " Senac v. State Farm Mut. Auto. Ins. Co. , 09-320, p. 4 (La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127 (emphasis added). See also, White v. Canonge , 01-1227 (La. App. 5 Cir. 3/26/02), 811 So.2d 1286 ; Winzer v. Richards , 50,330 (La.App. 2 Cir. 1/13/16), 185 So.3d 876 ; and Woolard v. Atkinson , 43,332 (La.App. 2 Cir. 7/16/08), 988 So.2d 836.

In evaluating the course and scope of employment issue in this case, we must determine whether there are any disputed issues of material fact, or inferences from those facts, as to whether the collision between Ms. Boutte and Ms. Thibodeaux "was so closely connected [in] time, place, and causation to [Ms. Boutte's] employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests." LeBrane v. Lewis , 292 So.2d 216, 218 (La.1974).

A panel of this circuit further clarified Orgeron and listed four factors for the court to consider, "(1) whether the tortious act was primarily employment rooted; (2) whether the act was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether it occurred during the hour[s] of employment." Edmond v. Pathfinder Energy Servs., Inc. , 11-151, p. 4 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, 426, writ denied, 11-2234 (La. 12/16/11), 76 So.3d 1204. See also Bowdoin v. WHC Maint. Servs., Inc. , 17-150 (La.App. 3 Cir. 10/25/17), 230 So.3d 232.

On appeal, Walgreens claims that the trial court did not correctly apply the case law to the facts of this case by failing to apply the required strict construction necessary when the fault of the employee involves injury to a third party. Walgreens further claims that the trial court then failed to find that there were genuine issues of fact on the issue of whether Ms. Boutte was in the course and scope of her employment at the time of the collision. I agree.

The trial court ruled from the bench in denying Walgreens' motion for summary judgment and granting plaintiff's motion. It succinctly stated, "Well, after reading the memorandum and considering all of the evidence that's been introduced into this Court, it's very clear to me that the training.... that Ms. Boutte attended was employment related as well as to the benefit of her employer." With all due respect, the trial judge's cryptic finding misses the mark. This is not a workers' compensation case, and the accident at issue did not occur during the training or at Walgreens. In considering the four factors that determine the course and scope issue stated by the supreme court in LeBrane , 292 So.2d 216, and clarified in Edmond , 73 So.3d at 426, the third and fourth factors, "whether the act occurred on the employer's premises," and "whether it occurred during the hours of employment," are not at issue here. The accident at issue did not occur on the employer's premises nor during the hours of employment.

A panel of this court in Jack v. McFarland , 15-405, p. 6 (La.App. 3 Cir. 10/7/15), 175 So.3d 1169, 1173, discussed the "wages" issue, and stated:

This court has determined that factor one, payment of wages, "as contemplated by the supreme court refers to piecemeal or hourly wages rather than salary." Hargrave v. Delaughter , 08-1168, p.7 (La.App. 3 Cir. 3/4/09), 10 So.3d 245, 250. Instead, when looking at wages, the court should focus on whether the employee was being compensated for the task and the time spent engaging in activities on behalf of the employer. Id. If not, any salaried employee would be within the course and scope of employment at all times.

It is undisputed that Ms. Boutte was not being paid wages by Walgreens at the time of the accident that occurred. She had finished her regular shift as a pharmacist in Morgan City at 1:00 p.m. and had "clocked out." It is likewise undisputed that Ms. Boutte was not required by her immediate supervisors to attend the training course. Further, even if the training was mandatory, it was over, and Ms. Boutte was free to go anywhere she liked. The collision occurred away from Walgreens' work premises in Lafayette and after the training had ended. She was driving back from Lafayette to her home in Napoleonville when the accident occurred.

Was the tortious act primarily "employment related" and "reasonably incidental to the performance of the employee's duties?"

One indication that courts have considered in determining whether the acts of the employee were work related is whether the employee was paid mileage by the employer at the time of the alleged negligent act. Ms. Thibodeaux's counsel cited the case of Michaleski v. Western Preferred Casualty Co ., 472 So.2d 18 (La.1985), which preceded the supreme court's opinion in Orgeron, as relevant to an analysis of whether the accident off work premises was within the course and scope of Ms. Boutte's employment.

However, in the Michaleski case the supreme court actually reversed the appellate court's affirmation of a summary judgment in favor of the employer and remanded the case to the trial court for further proceedings. The ruling of the supreme court in Michaleski reversing summary judgment in favor of the employer required an analysis of whether there was a substantial connection to the work of his employer and the employer's expectations of its employees. The employee driver alleged to be at fault was an offshore worker who was temporally working at a land rig site. The supreme court stated:

An oil company employee, working "seven days on" with living quarters and a food and gas allowance furnished by the employer, who is returning to the work place from a necessary trip for himself and a co-worker to eat is in the course of his employment. Such journey is necessitated by the employment, since all the men had to leave the rig site to purchase groceries or a meal....
Returning from a trip to buy food was an activity arising out of the nature of the employment. The employer anticipated the necessity of these temporary absences, because it compensated the employees with a per diem for their food and gasoline expenses. All of these employees were required to obtain meals or groceries away from the rig site and were furnished an allowance for that purpose. Leger did not deviate either in route or time on his errand. See Wright v. Romano , 279 So.2d 735 (La.App. 1 Cir. [ ] ), writ den.[ied] , 281 So. 2d 757 (La.1973).
Id. at 21.

Unlike the majority opinion in this case, the supreme court in Michaleski , 472 So.2d 18, reversed an employer's summary judgment motion that Mr. Michaleski was not in the course and scope of his employment. The supreme court properly remanded the matter to the trial court for further proceedings.

Counsel for Ms. Thibodeaux nevertheless argues that the reasoning in Michaleski supports a finding that if Walgreens paid mileage to Ms. Boutte, she necessarily was in the course and scope of her employment with Walgreens . However, a number of Louisiana courts have held that payment of mileage or travel expenses is not the determining factor in such cases. In Landry v. Fincke , 98-90 (La.App. 3 Cir. 5/20/98), 714 So.2d 826, both the trial court and a panel of our court found that an employee was in the course and scope of his employment at the time of an accident away from the work premises. The facts in Landry , much stronger than in this case, were undisputed that the employee was paid a car allowance and given a credit card for his business travel. At the time of the accident he was returning from a work-related trip delivering materials and performing an inspection at a company job site.

The supreme court granted writs and reversed, stating, "Judgments of the courts below granting partial summary judgment in favor of the plaintiffs are vacated and set aside. There are genuine issues of material fact. Case remanded to the district court for further proceedings." Landry v. Fincke , 98-1685 (La. 10/9/98), 726 So.2d 14.

Similarly, in Winzer v. Richards , 50,330, pp. 6-7 (La.App. 2 Cir. 1/13/16), 185 So.3d 876, 880-81 (emphasis added), the second circuit recently summarized the law in this area as follows:

Liability should not be broadly imposed on an employer for the torts of his employee where the employer is not himself at fault. As a result, employers are only held liable for the physical acts of their employees over whom they have control, as opposed to workers over whose movements an employer has no right to control. Woolard v. Atkinson, [43,322 (La.App. 2 Cir. 7/16/08), 988 So.2d 836 ]; Keen v. Pel State Oil Co. , Inc. , [332 So.2d 286 (La.App. 2d Cir.1976), writ denied , 333 So.2d 234 (La.1976).]
An employer controls the movements of employees when they are performing duties for the employer and only when this right to control exists may vicarious liability be imposed. When employees are performing functions of their employment, it is as though the employer acts through the employee. The employer receives the benefit of those acts and so he must shoulder the liability for any wrongs committed during the performance of the acts. Woolard v. Atkinson ,[ ]; Keen v. Pel State Oil Co. , Inc. [ ]
The general rule is that an employee, in going to and from work, is not considered as acting within the course and scope of his employment so as to render the employer liable to third persons for the employee's negligence. Alford v. State Farm Auto. Ins. Co. , 31,763 (La.App.2d Cir.5/5/99), 734 So.2d 1253, writs denied, 99-1435, 99-1595 (La.9/3/99), 747 So.2d 544, 548; Woolard v. Atkinson [.]
An exception to this general rule may apply when an employer provides the transportation used by the employee to go to and from work, the employer provides expenses or wages for the time spent traveling in the vehicle, or the operation of the vehicle is incidental to the performance of some employment responsibility. Woolard v. Atkinson, [ ];
Black v. Johnson , supra [, 137 So.3d 170 (La.App. 2d Cir.2014) ].
With reference to travel expenses, it is well settled that mere payment of these expenses without an express or implied agreement to furnish transportation does not place the employee within the course of his employment while going to and returning from work when such payments bear no relation to actual travel expenses and are intended only as an inducement to persuade persons to work at a particular job site. Yates v. Naylor Indus. Servs. , Inc. , 569 So.2d 616 (La.App. 2d Cir.1990), writ denied , 572 So.2d 92 (La.1991) ; Tarver v. Energy Drilling Co. , 26,233 (La.App.2d Cir.10/26/94), 645 So.2d 796.

In the case of Bowdoin v. WHC Maint. Services, Inc. , 230 So.3d 232, a panel of this court reversed a summary judgment granted in favor of the plaintiff, Dustin Bowdoin, and affirmed the denial of summary judgment in favor of the defendants WHC Maintenance Services, Inc. (WHC) and its insurer AIG Specialty Insurance Company. In Bowdoin , 230 So.3d 232, we found that there were disputed issues of material fact that precluded summary judgment on the issue of whether Devin Badon was in the course and scope of his employment with WHC when the accident causing severe injuries to Mr. Bowdoin occurred.

The Bowdoin court found after reviewing the record:

[T]here is conflicting testimony as to whether Badon was directed by WHC to travel to Louisiana to retrieve Bowdoin for work on the next WHC project. Badon testified that he was directed to do so while this testimony was contradicted by the testimonies of WHC employees Rusty Smith and Chris Aguillard.

Id. at 237.

The Bowdoin court found that in order to grant summary judgment, the trial court would have to give credence to either Badon or Smith and Aguillard. Therefore, "such a finding requires a credibility determination made to evaluate or weigh testimony which is impermissible when considering the merits of a motion for summary judgment." Id. at 237. The case was remanded to the trial court.

Even if the payment of mileage were to be considered as an indication of an employment related act, Walgreens argues in its brief, in pertinent part:

Since the filing of Walgreens' motion and plaintiff's cross motion and before the discovery deadline , Walgreens learned that Ms. Boutte was not paid mileage, a fact that is attested to in an affidavit she executed and is supported by Walgreens' business records. Should this court reverse the granting of plaintiff's motion for summary judgment, Walgreens will have the opportunity to introduce that evidence below. (Emphasis added).

Counsel for Ms. Thibodeaux responded in brief and stated:

Although Walgreens contends in Footnote 25 of its brief that it recently "learned that Ms. Boutte was not paid mileage," no such evidence has ever been properly introduced to substantiate that allegation and any reference to any such purported evidence must be disregarded and ignored for the purposes of this Appeal. The undisputed record evidence is that Ms. Boutte was paid for the mileage expense related to the Walgreens' training session at issue here.

In Harris v. Aetna Insurance Co. , 509 So.2d 486, 489 (La.App. 3 Cir. 1987) (emphasis added), a panel of our court stated: "[T]his court will only review issues which have been submitted to the trial court and raised in specifications or assignments of error, unless the interest of justice clearly requires otherwise ."

In this case, because of plaintiff's insistence that the mileage issue is of critical importance, it can certainly be argued that in the "interest of justice," our court can and should order the record supplemented to include Ms. Boutte's supplemental affidavit in question. Uniform Rules-Courts of Appeal, Rule 1-3. However, the supplemental affidavit issue aside, there are genuine issues of fact as to whether Ms. Boutte was in the course and scope of her employment with Walgreens at the time of her after hours off premises collision with Ms. Thibodeaux, and, if this case is remanded, whether she was paid mileage may be one of the factors in a judge or jury's decision on the merits. It is not the determining factor in this summary judgment decision.

It is significant to note that the deposition of Ms. Boutte was offered by both parties in support of and in opposition to the cross motions for summary judgment. Both attorneys did an excellent job of questioning Ms. Boutte in her deposition and then quoting excerpts from her deposition that supported their arguments. Counsel for Ms. Thibodeaux claims it is undisputed that Ms. Boutte was required to attend the training in Lafayette, La., because in her deposition in response to his question she stated that Walgreens' scheduler, Ms. René Ness said, "you need to come on in and get this training."

Counsel for Ms. Thibodeaux also argued that the cholesterol training Ms. Boutte received was done by Walgreens to benefit Walgreens during Ms. Boutte's employment. Based on Ms. Boutte deposition testimony, the Morgan City location did have the necessary equipment to do cholesterol testing, and her co-worker Mr. Paul Taylor, had completed the training necessary to do the testing, if required. Ms. Thibodeaux's counsel ably argues that it was in Ms. Boutte's interest, as well as that of Walgreens, to have Ms. Boutte certified to do the cholesterol testing if needed. He argues that Ms. Boutte's travel to and from the training was necessary and incidental to her employment with Walgreens and the trial court's decision finding that she was in the course and scope of her employment should be affirmed.

However, in response to questions by Walgreens' attorney, Ms. Boutte also testified in that same deposition that her pharmacy manager and her district manager, both her immediate supervisors, did not tell her she had to go to the training in Lafayette. The training was not mandatory and was not a part of the training that was required for her to maintain her employment and certification at Walgreens:

Q. So when you were scheduled to-when you-René Ness scheduled you to take this course, this was something that you decided that you wanted to do on your own?
A. Yes
Q. Okay. But nobody at Walgreens was making you take that course?
A. No.

Additionally, as previously indicated, Ms. Boutte's employment records submitted in support of Walgreens' motion for summary judgment includes all of her employment mandated training and does not list the cholesterol training on May 2, 2014.

Further, factor two in Edmond , 73 So.3d at 426, "whether the act was reasonably incidental to the performance of the employee's duties," requires an analysis of whether the training Ms. Boutte received in Lafayette was "reasonably incidental to the performance" of Ms. Boutte's duties. Ms. Boutte testified in her deposition that the cholesterol training at the Walgreens headquarters she attended had never been utilized at the Morgan City location where Ms. Boutte was permanently assigned as a pharmacist, both before the accident and after her employment ended almost two years after the accident in question. According to Ms. Boutte's deposition testimony, she attended the training for her own knowledge, not because it was required of her or was of benefit to Walgreens.

I would find that the trial court erred in weighing the evidence and making a credibility determination when it found that there is no genuine issue of fact as to whether the training in Lafayette was required, or "primarily employment rooted[,]" and whether Ms. Boutte was still "in the course and scope of employment" for Walgreens when the accident occurred. Edmond , 73 So.3d at 426. Again, it is undisputed that the training was over, and Ms. Boutte was free to go anywhere she liked when the accident occurred. Walgreens exercised no control whatsoever over her movements.

I would further find that there is a genuine issue of material fact as to the benefit, if any, Walgreens received from Ms. Boutte's voluntary cholesterol training and whether that benefit makes the training "reasonably incidental to the performance of the employee's duties," sufficient to find her to be in the scope of [her] employment when she was driving home after completion of the training. Edmond , 73 So.3d at 426 ; See also Winzer , 185 So.3d 876 ; Woolard v. Atkinson , 988 So.2d 836 ; and Landry , 726 So.2d 14. As stated in Willis , 775 So.2d at 1050, "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." Strict construction applies in cases involving vicarious liability to third parties. Senac , 22 So.3d 1124. Payment of mileage is not determinative. Winzer , 185 So.3d 876.

Since Ms. Boutte's deposition is the primary evidence submitted, I would submit that the trial court and the majority erroneously weighed the seemingly conflicting statements contained therein and made credibility determinations and factual findings that cannot be made in a summary judgment context. See Prop. Ins. Ass'n of La. , 31 So.3d 1012. These issues should be resolved at a trial on the merits where the fact finder can hear firsthand all pertinent evidence, weigh the evidence, and make proper credibility determinations and factual findings.

CONCLUSION

I would find that genuine issues of material fact require the reversal of Ms. Thibodeaux's motion for partial summary judgment finding that Ms. Boutte was in the course and scope of her employment with Walgreens such that Walgreens is vicariously liable for the damages caused by Ms. Boutte in the collision with Ms. Thibodeaux. For the same reasons, I agree with the majority to affirm the trial court's denial of Walgreens' motion for summary judgment on this issue.

      Walgreens initially sought a supervisory writ from the judgment. This court denied the writ on the basis that Walgreens had an adequate remedy on appeal, as the "granted summary judgment" was immediately appealable under La.Code Civ.P. art. 1915(A) ; we noted that Walgreens "can assign the denial of its cross motion for summary judgment as an error in the appeal." Thibodeaux v. GEICO , 17-562 (La.App. 3 Cir. 7/11/17) (unpublished writ), writ denied , 17-1333 (La. 9/15/17).

      See Orgeron v. McDonald , 93-1353 (La. 7/5/94), 639 So.2d 224.

      In support of its motion for summary judgment, Walgreens also entered into evidence the Accident Report, the Petition, and a report compiled by Walgreens containing the "training classes taken by Ms. Boutte from her personnel file."

      Ms. Boutte's statement in her deposition as to payment of mileage by Walgreen's was undoubtedly a mistake, which she corrected in her proffered affidavit after review of Walgreens' records.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Santiago Alonso GONZALEZ, Sr. aka Santiago Alonso Gonzalez aka Santiago Gonzalez
    17-1116
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2018
    Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Post Office Drawer 1557, Many, Louisiana 71449, (318) 256-6246, Counsel for Appellee: State of Louisiana
    Mitchell J. Creel, Creel Law Firm, Post Office Box 276, Greenville, Mississippi 38702, (662) 332-3383, Counsel for Defendant/Appellant: Santiago Alonso Gonzalez, Sr.
    Sarah L. Ottinger, Juvenile Justice Project of Louisiana, 2563 Bayou Road, Second Floor, New Orleans, Louisiana 70119, (504) 258-6537, Counsel for Defendant/Appellant: Santiago Alonso Gonzalez, Sr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

Defendant, Santiago Alonso Gonzalez, Sr., was charged by bill of information filed on April 30, 2015, with aggravated crime against nature, a violation of La.R.S. 14:89.1(A)(2)(a). Trial by jury commenced on January 26, 2017, and the following day, the jury found Defendant guilty of the responsive verdict of attempted crime against nature, a violation of La.R.S. 14:27 and La.R.S. 14:89. Defendant filed a Motion for New Trial on March 2, 2017, alleging the verdict was contrary to the law and evidence. Several weeks later, he filed a First-Amended Motion for New Trial on the basis of newly discovered evidence. After a hearing, the trial court denied Defendant's new trial request without reasons. On May 25, 2017, Defendant was sentenced to serve seven years at hard labor, the sentence was suspended, and Defendant was placed on supervised probation for six years.

Defendant appealed and is now before this court asserting the following assignments of error: 1) the trial court erred in denying his First-Amended Motion for New Trial; 2) the trial court imposed an illegal sentence of six years supervised probation; 3) the trial court imposed an illegal condition of supervised probation; and, 4) a portion of the Order of Notification to Sex Offender is erroneous.

DISCUSSION

Facts

Defendant's biological daughter, E.G., claimed that Defendant forced her to have sexual intercourse with him every few weeks between March 4, 2012, and April 1, 2015.

Denial of Defendant's First Amended Motion for New Trial

In his first assignment of error, Defendant contends the trial court erred in denying his First Amended Motion for New Trial, in violation of La.Code Crim.P. art. 851(B)(3) and his rights under La.Const. art. 1, § 2 and § 16 and U.S. Const. amend. VI and XIV.

The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
....
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 851(B).

A motion for a new trial based [upon newly discovered evidence] shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available....

La.Code Crim.P. art. 854.

In State v. McKinnies , 13-1412, pp. 9-14 (La. 10/15/14), 171 So.3d 861, 869-72 (footnotes omitted), the supreme court explained:

La.C.Cr.P. art. 858 limits our review of the trial court's ruling on the new trial motion: "In reviewing the granting or the refusal to grant a new trial, neither the appellate nor the supervisory jurisdiction of the Supreme Court may be invoked, except for error of law." Therefore, we review the trial court's ruling on the new trial motion only for legal error. An abuse of the trial court's discretion in ruling on a new trial motion on the ground of newly discovered evidence presents a question of law.
....
"When ruling on an Article 851(B)(3) motion, a trial judge's duty is not to weigh the new evidence as though he were a jury deciding guilt or innocence or to determine what is true or false in light of the additional information. In other words, the trial judge is not to assess the newly discovered evidence as though he were a thirteenth juror." Instead, "[t]he discretion vested in the trial judge in passing on a motion for a new trial based on the ground of newly discovered evidence in a criminal case is to be exercised in determining the diligence shown, the truth of the matters stated, and the materiality and probability of their effect, if they are believed to be true."

"[A] motion for a new trial is properly rejected when it is based on evidence which should have, with reasonable diligence, been discovered before or during the trial. State v. Jones , 344 So.2d 1036 (La.1977) ; State v. Rossi , 273 So.2d 265 (La.1973)." State v. Marcal , 388 So.2d 656, 662 (La.1980), appeal dismissed, cert. denied , 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981).

The basis of Defendant's original motion for new trial was that the State failed to present any physical or medical evidence to corroborate his daughter's claim that he forced her to have sex with him. In his amended motion for new trial, Defendant stated that Marsha Meshell, E.G.'s grandmother and his mother-in-law, had written a letter on his behalf claiming that E.G. told her she made up the charges because she was angry at her father. Defendant explained that on March 22, 2017, Meshell informed his counsel that she knew E.G. "had admitted to deception when making accusations of aggravated rape" against Defendant. Defense counsel attached an affidavit to the amended motion, wherein he stated:

THAT he conducted reasonable due diligence in his search for evidence in the above-referenced matter; and was unaware of the existence of the evidence alleged by the child-complainant's grandmother Marsha Mechell [sic] prior to or during the defendant's trial;
THAT prior to the said trial, the defendant was court-ordered not to contact anyone from his immediate family; and thus it was not reasonable for him to be aware that the grandmother of the child-complainant would have knowledge concerning said recantation[.]

The undated letter written by Meshell, which was also attached to the amended new trial motion, provided as follows:

My name is Marsha Meshell, mothe-in-law [sic] of Santiago Gonzelez [sic] Sr. I have known him since he married my daughter, Melinda Meshell Gonzeles [sic], which was about 18 yrs. He is a good man, a good Father to his children and tries to raise them right. I know in my Heart this Man is innocent. He wants his children to grow up and be somebody and not doing things wrong. I know he did not do anything to [E.G.], his daughter, because she has said to me several times he didn't do it. [E.G.] said what she did because she was mad at her Dad. He didn't want her to date and get her education. She wanted to do what she wanted to no matter what. I believe in my Heart he is innocent and God knows, Santigo [sic] should be freed.

Defendant called two witnesses at the April 27, 2017 hearing on his motion for new trial. The first was Defendant's sister-in-law and E.G.'s aunt, Marsha Meshell McDonald. McDonald stated that sometime after the trial, she told defense counsel that E.G. told her that "she lied on him, on her dad." McDonald acknowledged having spoken to defense counsel twice in the past several years regarding an unrelated matter, but she claimed to not know that counsel represented Defendant until after his trial. McDonald testified that she mentioned E.G.'s recantation to Detective Aaron Mitchell four or five months before the trial, and he said he would get someone call her. McDonald identified a member of the district attorney's staff, Natalie Rowe, who was sitting in the courtroom during the hearing, as someone else whom she told about E.G. having confided in her that the charged offenses did not occur. McDonald explained that she and Rowe had spoken at McDonald's workplace. Rowe told McDonald that she would pass the information on to her office and someone would get back in touch with McDonald. According to McDonald, no one from the district attorney's office followed up on the matter and neither did she. McDonald confirmed that she would have been available to testify at Defendant's trial. On cross-examination, McDonald initially claimed that she did not tell her mother, Meshell, about what E.G. told her; however, she later remembered discussing the matter with Meshell. McDonald was sure she never told her sister, Melinda Gonzalez, E.G.'s mother, about E.G.'s alleged recantation.

Defendant's mother-in-law, Marsha Meshell, was the second witness called by the defense. Meshell confirmed that she had met defense counsel once before in an unrelated matter that took place before E.G. told her that the charges against Defendant were untrue. When asked by defense counsel as to why she did not reach out to him before Defendant's trial, Meshell stated:

Well, I thought it was gonna [sic] be, like, when he came to trial, you know. I was hoping and praying, you know, the Good Lord, "Look. You know, in my heart I know he didn't do it." And then when she told me this, you know, I even asked her, I said, "Why don't you go forth and tell the truth?" I said, "You know, because that's your father." I said, "You only have one father." And I said, "You know, I don't know what made you say it or anything," but I said, "if you're telling me that he did not do it, please go and tell the truth."

Meshell described the circumstances of E.G.'s recantation, as follows:

Well, her mother was not at home at the time and we were talking. And the words that she told me, that he didn't do it, but if she didn't come up here and say she did and they thought that-the Court thought she had lied, that she would be in trouble and get sent off.

Meshell stated that she had only one such conversation with E.G., and she guessed that it occurred five or six months ago, before Defendant's January 26, 2017 trial. Meshell testified that she discussed E.G.'s recantation with her daughters, Melinda and McDonald, but she did not tell anyone else because she was not sure of who to speak to, and she was not sure if they would believe her. According to Meshell, McDonald told her that E.G. had recanted to her as well. Meshell then read the letter she sent to defense counsel to the jury.

On cross-examination, Meshell acknowledged that she was present at E.G.'s house on several occasions when an employee of the Department of Children and Family Services (DCFS) came to visit. Upon being questioned as to whether it was true that she and E.G.'s mother, Melinda, "began screaming up in the victim's room" after the guilty verdict was rendered, Meshell admitted she was upset and that she and Melinda got "a little loud," but she denied that there was any screaming.

The State called three witnesses to oppose Defendant's motion for new trial. Natalie Rowe testified that she worked for the Sabine Parish District Attorney's Office as support staff. She denied that McDonald ever told her that E.G. recanted her allegations against Defendant. Rowe described a conversation she had with McDonald as follows:

And she asked me about did I know or could I tell her when the case was upcoming, and I said, "Which case?" And she said two. She mentioned one name and then she said Gonzalez and I said, "I don't know exactly when it's coming up, but you can call the DA's office and we'll let you know." Other than that, I don't recall having any other conversation with her about this case.

Rowe testified that she could specifically say she did not have a conversation with McDonald about anyone recanting a story.

Karen Williams, victim coordinator of the Sabine Parish District Attorney's Office, testified that she was present when the assistant district attorney met with E.G. several times for trial preparation. Although E.G.'s mother, Melinda, was with her, Melinda never told Williams or the assistant district attorney that she had information regarding E.G. recanting her story. Williams further indicated she never spoke to Meshell. According to Williams, after the jury returned its verdict, she heard Melinda and Meshell screaming in the "victim's room."

Tiffany Frazier, a DCFS employee, testified that she began visiting E.G.'s family in October 2016. She stated that she was in the Gonzalez family home prior to trial when Melinda was not present and Meshell was taking care of the children. Regarding those visits, Frazier's explained:

A [Meshell] talked more than E.G. did. She made it known that she did not believe E.G. She thought that she was lying.
Q Let me stop you there. Did she ever say to you, "Ma'am, E.G.'s told me she's lying?
A No, ma'am.
Q So she said she didn't believe her. She thought she was lying, but she never said to you, "I know she's lying because she's told me she lied?"
A Correct.
Q Okay. And this was prior to the trial?
A Yes.

At the conclusion of the hearing, the trial court denied Defendant's amended motion for new trial without reasons. Citing State v. Ward , 14-1923 (La. 6/30/15), 167 So.3d 592, Defendant contends the trial court erred in denying his amended motion for new trial. The defendant in Ward was convicted of aggravated rape and attempted aggravated rape and filed a motion for new trial based on newly discovered evidence. In reversing the trial court's denial of the motion for new trial, the supreme court noted the entire case hinged on the "ever-evolving" testimony of the victim, explaining:

After a searching review of the record in this case, we are satisfied that this new evidence was discovered after trial and that defense counsel's failure to discover this evidence was not attributable to any lack of due diligence on their part. Further, given the fact that the State's entire case against these defendants-each of whom is currently serving a sentence of life in prison based on these convictions-hinged on the ever-changing testimony of R.P. concerning the critical issue of penetration which was eventually corroborated in some respects when A.L. altered her testimony mid-trial, there is no question that this newly discovered evidence undermining both R.P.'s and A.L.'s credibility is material .... Under these unique circumstances, we find the trial court erred in failing to grant defendants a new trial given the objectively tenuous credibility of both of these witnesses-one of whom offered different versions of her story at virtually every juncture of the investigation and prosecution of these defendants and the other who, after receiving transactional immunity from the State, offered two different iterations of her story on successive days of testimony.

Id. at 597-98 (footnotes omitted).

Defendant contends that, as in Ward , he did not discover that E.G. told both her grandmother and aunt that her allegations against Defendant were false until after trial. Defendant submits that, because there were court orders prohibiting communication between Defendant and his wife and because his attorney could not speak to Melinda without her counsel present, defense counsel did not discover the evidence prior to trial despite due diligence.

Defendant asserts that E.G.'s statements changed a great deal when it came to describing "what she claimed [he] did around the critical issue of penetration." Defendant argues that at the time E.G. reported the offense, she described contact that increased to penetration over time. However, by trial, she testified to full penetration and ejaculation in the very first incident she described. Defendant submits that the introduction of E.G.'s statements to her grandmother and aunt would probably produce a different verdict on retrial.

The State counters that the trial court did not err in denying Defendant's amended motion for new trial because, unlike the victim in Ward , E.G.'s version of what Defendant did to her did not change. The State then challenges the credibility of Meshell and McDonald, noting the many inconsistencies in their testimonies. It points out that McDonald wavered on whether she told her mother, Meshell, that E.G. had confessed to making up the allegations against Defendant. In addition, the State submits that Rowe denied discussing this case with McDonald, in direct contravention of McDonald's testimony. With regard to E.G.'s grandmother, Meshell, the State notes that in her letter to defense counsel she claimed that on several occasions, E.G. told her that her father had not done anything, but on direct examination, Meshell testified that E.G. only recanted her allegations to her on one occasion. Moreover, given the fact that Meshell was in E.G.'s home on several occasions when someone from the district attorney's office and from DCFS came by, she could have told them that E.G. had confessed to making up the charges against Defendant. Finally, the State submits that the defense's new witnesses "could have been procured with the exercise of the slightest diligence."

Because Defendant argues the statements allegedly made by E.G. would have produced a different verdict on retrial, we will discuss the testimony presented at Defendant's trial. The State called seven witnesses in its case in chief. Amy Johnson was the guidance counselor at Many Junior High on April 14, 2015. Johnson testified that on that date, several students reported to her that E.G. stated she might be pregnant, and her father had sexual relations with her. As a result, Johnson called E.G. in to speak with her. E.G. confirmed she had made such a statement but did not want to share anything with Johnson. Johnson stated she reported the matter to DCFS, explaining:

When she met with the DCFS person, originally, she said that-or the DCFS person said that she denied the claims. Then she came back, because I told E.G. that, "If something did happen, you need to be honest and you need to tell them the truth. Whether it happened or it didn't happen, you need to be honest. And if you need me to call them back, I will call them back." So she said, "I need to talk to them." So I called them back.

Johnson was further questioned as follows:

Q Okay. So besides that one instance, there was no other time she ever denied making that claim against her father, correct?
A Correct.

Megan Goff, a DCFS employee, testified that she went to E.G's school to speak with her. E.G. told Goff that she had never had sex, that she was Catholic and very religious, and that she was afraid she might be pregnant. Because E.G. denied that anyone had "hurt her," Goff returned to her office. Just as she was arriving there, Johnson called and asked her to return to the school because E.G. had more to say. At that time, E.G. disclosed to Goff that she had been raped by her father. E.G. then requested that someone contact her mother. Goff stated that after E.G.'s mother, Melinda, arrived at school and was told about E.G.'s allegations against Defendant, Melinda accused E.G. of lying and "[Melinda] through [sic] herself on the floor of the junior high." According to Goff, E.G. was later hospitalized for suicidal and homicidal ideations and for self-mutilation.

Goff testified that after Defendant was arrested, she was told that E.G. said Defendant had been "coming around" their family home. Goff questioned E.G. about the matter, and E.G. admitted that Defendant had not actually been to the home. Goff testified that E.G. was "fearful" that Defendant "was going to come back." E.G. admitted to Goff that after returning from foster care to live with her mother, she snuck out of the house a couple of times to meet a boy. Goff was further questioned as follows:

Q Okay. So not quite two years later, okay, we are here, in all of that time-she told you when she had fibbed-when she had lied about something, she came clean about it. At any point since April 14, 2015, when she broke down in the counselor's office, has she ever recanted and said, "I made this up. My dad didn't do this,"?
A Never.
Q Okay. Throughout all of her hospital stays, are you familiar with her-her hospital stays in the-you know, in Brentwood and Long Leaf, has she ever, in any of the things she wrote, or any of the counselors that she talked to, said, "This didn't happen,"?
A No. Never.

On cross-examination, Goff was shown copies of E.G.'s medical records from Brentwood Hospital and was asked whether E.G. was ever diagnosed with psychosis while there. Goff replied that the records did not reveal a diagnosis of psychosis, however, she was prescribed medication to treat psychosis. Goff noted that at E.G.'s discharge from Brentwood, she was diagnosed with major depressive disorder and anxiety.

Aaron Mitchell, a juvenile detective with the Sabine Parish Sheriff's Office, testified that he received a call from Megan Goff with DCFS on April 14, 2015. He met Goff at the local high school where he learned that a female juvenile stated that "her father had done some things to her and she thought that she was pregnant." Detective Mitchell set up a forensic interview for E.G. at Project Celebration. After observing E.G.'s interview, Detective Mitchell arrested Defendant at his home. He stated that he talked to E.G.'s mother who "was highly irate and didn't believe the child."

Joanna Pleasant, the director of the Child Advocacy Center at Project Celebration, testified that she conducted two forensic interviews of E.G., the first on April 14, 2015, and another on April 7, 2016. Pleasant explained that the purpose of a forensic interview is to get the child to talk in a safe environment and that she does not form any opinions or draw conclusions regarding the interviews she conducts.

Videotapes of those interviews were played for the jury while Pleasant was on the witness stand. In the April 14, 2015 interview, E.G. told Pleasant that her father began raping her when she was thirteen and would do so every few weeks. She was fourteen years old at the time of the interview and stated Defendant had last raped her in March 2015, the month before the interview. E.G. stated Defendant had sex with her. She explained Defendant "spread my legs and then he'll put his private stuff on my private." She further stated, "He would try to put it-he told me he would try to put it all the way in." "[T]hen he said he couldn't do that because it won't go through or something like that, and he told me not to do it to nobody else but him." E.G. was asked if Defendant "put his private stuff inside of your private stuff," and E.G. nodded affirmatively. E.G. later described ejaculation by Defendant but did not indicate on which occasion this occurred.

E.G. told Pleasant that Defendant once hugged her and asked if she was throwing up. She told Defendant she gagged or threw up every time she ate. E.G. said Defendant responded, " 'Oh that-because that's a sign if you're ... pregnant." Defendant also told her she looked pregnant because her stomach was getting bigger. E.G. reported that Defendant used a condom twice.

During her April 7, 2016 interview, E.G. discussed her relationship with her mother. E.G. stated that after she returned home the first time from foster care:

[E]verything was going good. No pressure was put on me. I decided-while I was home, I decided to change up a little bit of the story that happened. The reason why is because I noticed there's a lot of things that been going on [sic] on with my mother.

E.G. stated that she felt she was treated differently than her siblings. E.G. then discussed her mother's reaction to her having a boyfriend. E.G. stated she had not done anything sexual with her boyfriend although her mother thought she had. E.G. acknowledged that her mother accused her of making false statements about Defendant. E.G. further stated, "And now I'm getting taken away, going back to foster care for however many months it takes her to control her anger and to realize that I'm, basically, always the same as I used to be." E.G. stated she had not seen her father at their house since he was taken to jail. However, she had seen him pass by the store while she was there. E.G. later stated:

E.G.: But like I tell momma, I forgave him but there's some days I'm, like, I-you know, like I said, like my boyfriend a chance [sic] and she (Incomprehensible words) but it was something that wadn't [sic] true about me and she was, like, "I don't think I'm going to be able to move on with life, and I'm not going to be able to forgive myself for what my father did," like I said, when I'm grown up, I'm not gonna [sic] forgive myself, if I have to see my father go to jail for what I did.
Joanna Pleasant: And what did you do?
E.G.: Be, basically, for real, I'm thinking, that none of this would have happened.
....
E.G.: -if I would not have said nothing [sic].
Joanna Pleasant: But did you choose for it to happen?
E.G.: No.

Dr. Jennifer Olson Rodrigues, a pediatrician, testified that she performed a "thorough evaluation of [E.G.'s] private area" on April 15, 2015, in conjunction with her claim of sexual abuse." Before the physical examination, Dr. Rodrigues met with E.G. to get a medical history and her version of abuse she had been suffering. When asked about E.G.'s demeanor at the time, Dr. Rodrigues stated:

I remember she-I kind of asked her about how she was doing and she had said she felt bad. She had a lot on her mind. She had been having to talk to a lot of people about what had been going on and it was kind of a scary thing, that she had told them the truth .... And then she had talked about it was like, having a dream that you want to wake up from, but she just couldn't wake up from. Then we talked a little bit, you know, I try not to ask detailed questions. I knew she-it was a hard thing for her to talk about, but she had talked about the thing that happened, it hurt, and it hurt when she peed. It hurt to walk. It would sting real bad when she peed. And I asked where. She said her privacy, and then she pointed down to her front area. And then I asked how she was touched, and she said it was with a man's privacy part[.]

When she performed the physical examination, Dr. Rodrigues found no signs of trauma, and she noted that E.G.'s hymen was intact. She explained, however, that in sexual abuse cases, the victims often have normal physical examinations.

At trial, E.G. testified that her father began having sexual intercourse with her on her thirteenth birthday. E.G. recalled that Defendant was mad because one of her male friends from school had given her a teddy bear. Her mother was at work, and her siblings were outside playing. E.G. further testified that Defendant took her into her mother's bedroom and told her to pull down her pants so that he could give her a whipping. Afterward, Defendant pulled her underwear down to her ankles and told her to lay in the bed. He had pulled down his underwear and pants too. According to E.G., Defendant then touched her private area with his private area. When asked if Defendant was "moving his privacy" when his "privacy was in your privacy," E.G. replied, "Yes, ma'am." E.G. indicated that Defendant ejaculated and then "He pulled out." E.G. testified that Defendant used a condom once. According to E.G., Defendant told her "not to tell mom because if he goes to jail, he will get out and will beat me."

E.G. also testified at trial that her family did not believe her allegations against Defendant. She explained that she had to enter foster care and that she had several hospital stays after she began talking about hurting herself. E.G. admitted that after she returned home, she used drugs, drank, and snuck out. She also acknowledged telling a counselor that Defendant was going to their house even though he had not done so. E.G. was further questioned as follows:

Q Have you ever told your brother or anybody you were just going to say it didn't happen?
A Yes, ma'am.
Q Why were you going to say that?
A I wanted my family back together.
Q Even your dad?
A Yes, ma'am.

E.G. stated that she had forgiven her father for what he did to her, but she nonetheless confirmed that the sexual abuse did happen.

Santiago Gonzalez, Jr., (Junior) Defendant's son, was called as a defense witness. Junior testified he never saw Defendant act inappropriately with E.G. He testified that E.G. had lied to him, including saying she had changed the baby's diaper and completed her chores when she had not done so. Junior indicated he was not subpoenaed to testify but appeared because his father's "lawyer told me that we needed to be up here."

In State v. Spears , 504 So.2d 974 (La.App. 1 Cir.), writ denied , 507 So.2d 225 (La.1987), the defendant was convicted of second degree murder. The offense occurred on December 2, 1984, at the apartment of the victim's sister, Cynthia Cavalier. Cynthia was the defendant's ex-girlfriend, and the two had a child together. The defendant filed a motion for new trial based on newly discovered evidence. The first circuit addressed the motion as follows:

It is the defendant's contention that Cynthia committed perjury when she testified that she had ended her relationship with the defendant approximately two years before the shooting incident occurred. At the trial, in an attempt to establish that their relationship had not ended two years earlier, the defendant produced a note addressed to him and allegedly written in October, 1984, by Cynthia. On cross-examination, Cynthia denied she had written this note. At the hearing on the motion for new trial, the defendant introduced this note, as well as several other notes and letters which were allegedly written to him by Cynthia. Four of these notes and letters were signed "Cynthia". The defendant also introduced evidence that a handwriting analysis expert, Robert Foley, had examined these notes and letters and concluded that they were all written by the same person. The defendant argued that this evidence proves that Cynthia committed perjury by testifying that she had not written the note on which she was questioned at trial and that she committed perjury by testifying that her relationship with the defendant had ended two years before the shooting incident.
....
In this case, the defendant has failed to show that this new evidence could not have been discovered before trial by the exercise of due diligence. In fact, it is apparent that the defendant possessed at least one of these notes before trial, since he produced this note at the trial and cross-examined Cynthia about it. Even if the defendant was surprised when Cynthia denied that she had written this note, the defendant could have requested a recess in order to produce expert testimony that the handwriting on the note was Cynthia's. We find that the trial court did not abuse its discretion in denying the defendant's motion for new trial on that basis.

Id. at 978-79.

In State v. Armstead , 14-36 (La.App. 4 Cir. 1/28/15), 159 So.3d 502, writ denied , 15-392 (La. 1/8/16), 184 So.3d 692, the defendant was convicted of felony carnal knowledge of a juvenile. He alleged the trial court erred when it denied his motion for new trial considering newly discovered evidence in the form of the victim's statement that she did not have sexual intercourse with him. At the hearing on the motion for new trial:

[T]he victim testified that Mr. Armstead did not rape her and that they did not have sexual intercourse. She, however, could not explain how his sperm found its way into her vagina. The victim further stated that she had been advised by the prosecution that she did not need to appear for the first day of trial because a jury was going to be selected for trial, and she was never informed of the need for her to appear later to testify. The victim also acknowledged, on cross-examination by the prosecution, that while she was served with a subpoena, she never intended to appear and testify at trial. She stated that she did not want to come to the trial and was not willing to testify for the prosecution.

Id. at 519. The fourth circuit concluded the trial court did not abuse its discretion in refusing to grant the motion. It found the defendant "did not show that the failure to discover the new evidence ... was not attributable to his lack of diligence." Id. at 520. The court noted that the defendant "could have spoken with the victim prior to trial, or subpoenaed the victim to testify at trial," but that the defendant "did not explain, however, why he failed to pursue either course of conduct at the motion hearing." Id.

After reviewing the evidence and considering the arguments on appeal, we conclude that Defendant failed to show that the exercise of reasonable diligence by him or his attorney would have not uncovered the witnesses, Meshell and McDonald, before or during trial. Both knew of the alleged statements by E.G. before trial, the two were relatives of the victim, Meshell babysat the victim, and Meshell was present in the "victim's room" when the verdict was returned. Moreover, at trial, E.G. admitted she had stated she was "going to say it didn't happen" because she wanted her family back together. That testimony should have put defense counsel on notice that he needed to consult the victim's relatives.

Defendant attacks E.G.'s credibility and argues the version of the events presented by her changed over time. E.G.'s credibility was at issue during trial, and she and other witness were thoroughly cross-examined about her credibility. In addition, E.G. admitted that she said she was going to say the offense did not occur. Accordingly, this case is readily distinguishable from Ward , 167 So.3d 592. Furthermore, we find that Defendant did not establish that the testimony of Meshell and McDonald would probably have produced a different verdict at retrial.

We find Ward distinguishable from the present matter. Unlike the victim in Ward , the victim herein, E.G., did not offer varying accounts of what Defendant did to her. Thus, as the appellate courts did in Spears , 504 So.2d 974, and Armstead , 159 So.3d 502, we conclude that the trial court did not abuse its discretion in denying Defendant's First Amended Motion for New Trial.

Defendant's Term of Probation

In his second assigned error, Defendant contends the trial court imposed an illegal sentence of six years supervised probation. At the time Defendant was sentenced, La.Code Crim.P. art. 893 provided, in pertinent part:

A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole. The court shall not suspend the sentence of a conviction for an offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3,[ ] or of a second conviction if the second conviction is for a violation of R.S. 14:73.5, 81.1, or 81.2. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal[.]
....
C. If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.

Defendant's six-year probationary term exceeds the maximum authorized by La.Code Crim.P. art. 893. "An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review." La.Code Crim.P. art. 882(A). Accordingly, we will amend Defendant's sentence to provide for a period of five years probation.

The Condition of Defendant's Probation

In his third assignment of error, Defendant contends the condition of probation requiring him to not have contact with anyone under the age of seventeen, including his children other than E.G., is excessive and violates La.Code Crim.P art. 895 and his rights under La.Const. art. 1, § 2 and § 20 and U.S. Const. amends. VIII and XIV.

Louisiana Code of Criminal Procedure Article 895(A) provides, in part: "When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation[.]"

At Defendant's sentencing hearing, the trial court stated: "one of the conditions of probation is going to be that you have no contact with anyone under 17 years of age; that, of course, you have absolutely no contact with the victim in this case." Defense counsel then asked whether Defendant could be allowed contact with his son, Kevin. The trial court confirmed that the condition applied to everyone "under 17 years-of-age," and Defendant assured that he could abide with the condition. Defense counsel did not object to the probationary condition at that time nor did he file a motion to reconsider sentence pursuant to La.Code Crim.P. art. 881.1 alleging the condition was improper or excessive. Accordingly, we conclude that Defendant waived review of this issue. See La.Code Crim.P. art. 841.

Defendant's Order of Notification to Sex Offender

In his fourth assignment of error, Defendant contends that a portion of the Order of Notification to Sex Offender (the Order) filed in the record on May 25, 2017, is erroneous. The Order states that Defendant "has pled guilty to or has been found guilty of a violation of R.S. 14:89.1(A)(2) ;14:27." Although Defendant was originally charged with aggravated crime against nature, which is a violation of La.R.S. 14:89.1(A)(2), he was found guilty of the responsive verdict of attempted crime against nature, a violation of La.R.S. 14:89 and La.R.S. 14:27. Accordingly, the Order incorrectly sets forth the offense for which Defendant was convicted. Defendant notes that the registration period listed in the order is correct, but he asks this court to remand the matter for correction of the error. The State defers to this court on this assignment of error.

Defendant's conviction for attempted crime against nature requires Defendant to register as a sex offender for twenty-five years. La.R.S. 15:541(25)(n) ; La.R.S. 15:544(B)(1). On the other hand, a conviction for aggravated crime against nature requires lifetime registration. La.R.S 14:89(A)(2) ; La.R.S. 15:541(2)(j) ; La.R.S. 15:544(B)(2)(a). To prevent any problems in the future, we will direct the trial court to correct the Order to list the crime for which Defendant was ultimately convicted.

DECREE

Defendant's sentence is amended to provide for five years supervised probation and is affirmed as amended. Additionally, this matter is remanded to the trial court for correction of the Order of Notification to Sex Offender to provide that Defendant was found guilty of attempted crime against nature, a violation of La.R.S. 14:89 and La.R.S. 14:27.

SENTENCE AMENDED AND AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.

      The bill of information was later amended to correct Defendant's name.

      The victim's initials are used in accordance with La.R.S. 46:1844(W).

      To avoid confusion, we will refer to E.G.'s aunt as "McDonald."

      Rowe was asked to leave the courtroom during the remainder of McDonald's testimony.

      Defendant cites this case as State v. Maise . Maise and Ward were co-defendants and their applications for writ of review were consolidated. The published opinion bears the title State v. Ward , and we refer to it as such.

      Crime against nature is not listed as a crime of violence in La.Code Crim.P. art. 890.3.

      We note, however, that under La.Code Crim.P. art. 822, Defendant may still seek to have the conditions of his probation modified or terminated by the trial court.
      The trial court has the power to "modify, change, or discharge the conditions of probation, or add further conditions authorized by [La.Code Crim.P. art. 895 ]" at any time during a defendant's probationary period. La.Code Crim.P. art. 896. However, "[i]n a felony case the court may terminate the defendant's probation and discharge him at any time after the expiration of one year of probation." La.Code Crim.P. art. 897. If discharged after the expiration of at least one year of probation, "the defendant shall have satisfied the sentence imposed." La.Code Crim.P. art. 898.
      State v. Sneed , 04-540, p. 5 (La.App. 3 Cir. 11/10/04), 886 So.2d 662, 665.