author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Kenny Roy YOUNG
    18-790
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Annette Roach, Louisiana Appellate Project, P.O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Kenny Roy Young
    Hon. Keith A. Stutes, Lafayette Parish DA, P.O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana
    Ted L. Ayo, Assistant District Attorney, 100 North State Street, Ste. 215, Abbeville, LA 70510, (337) 898-4320, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
   SAVOIE, Judge.

On May 9, 2017, a Vermilion Parish Grand Jury charged Defendant, Kenny Roy Young, by bill of indictment with five counts of oral sexual battery, in violation of La.R.S. 14:43.3, and five counts of felony carnal knowledge of a juvenile, in violation of La.R.S. 14:80. All ten charges were alleged to have occurred between December 1, 2015, and December 31, 2016, and involved the same juvenile victim, K.V. , whose date of birth is July 8, 2002.

On March 22, 2018, Defendant pled guilty as charged to three counts of oral sexual battery and three counts of felony carnal knowledge of a juvenile. The remaining four counts of the indictment were dismissed. No sentencing recommendation was made, and a Pre-Sentence Investigation (PSI) was ordered.

On May 25, 2018, the trial court had a sentencing hearing for Defendant, wherein the only witness to testify was Cindy Abshire, who is K.V.'s mother and Defendant's former girlfriend. At that time, the State recommended a minimum sentence of twenty years, while defense counsel requested that the sentence be less than the maximum for any count, with all sentences to run concurrently, and that Defendant receive sex offender treatment while incarcerated. Furthermore, defense counsel had previously filed a sentencing memorandum, which asked for "a sentence of two years at hard labor and that he be recommended for sex offender treatment while in Department of Corrections['] custody."

The trial court expressed that it was "quite disturbed by the facts presented in th[e] pre-sentence investigation[,]" noting Defendant groomed the victim and that K.V. would "feel this effect for the rest of her life[.]" The trial court noted the abuse was ongoing for about a year. The trial court then sentenced Defendant to seven years at hard labor without benefits on each count of oral sexual battery, with those sentences to run concurrently to each other. Defendant was also sentenced to five years at hard labor for each count of felony carnal knowledge of a juvenile, with those sentences to run concurrently to each other and consecutively to the oral sexual battery sentences. Thus, Defendant received a total sentence of twelve years at hard labor, the first seven of which are without benefits. Defendant is also required to register as a sex offender for twenty-five years after his release.

On June 15, 2018, defense counsel filed a Motion to Reconsider Sentence, arguing Defendant's sentences were excessive in light of mitigating factors and again asking for a two-year sentence. On August 2, 2018, the trial court held a hearing on the Motion to Reconsider. The trial court denied the motion noting the following:

The mother of the child testified at the hearing. I said it then and I will say it again today. I think [Defendant] took advantage of the mother as well as the child that was in -- somewhat in his control and was a master of manipulation and used his skills to fulfill his own sexual deviancy and sexual desires, which is illegal, immoral, and disgusting.
And I think that his original sentence handed down on May 25th is appropriate. And the more I think about it, the more I probably should have handed down a much harsher sentence.
However, twelve years is not excessive, considering that this was a repeated offense that happened on different days and this was an ongoing relationship where he took advantage of such a young child who will pay for this for the rest of her life. So motion denied.

Defendant now appeals his sentences, arguing the lengths of the sentences are excessive and that the trial court erred in running his felony carnal knowledge of a juvenile sentences consecutively to his oral sexual battery sentences. For the following reasons, we affirm.

FACTS

The State gave the following factual basis for the oral sexual battery charges:

Your Honor, on Mr. Kenny Young, the State would show, under Docket No. 61768, that between the dates of December 1st of 2015 and December 31st of 2016, on three different counts, he intentionally touched the anus or genitals of K.B. [sic], whose date of birth is 7-8-2002, by using his mouth or tongue or touching the offender with -- and she was not the spouse of the offender, and she was under the age of 15 and was at least three years younger than me [sic]. And this occurred in Vermilion Parish, Your Honor.

With regard to the felony carnal knowledge of a juvenile charges, the State gave the following: "And Your Honor, he also had three counts of having sexual intercourse, with consent, with the same victim, whose date of birth is July 8, 2002, a person who is 13 years of age or older but less than 17. And this also occurred here in Vermilion Parish."

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is one error patent involving the sentences imposed for felony carnal knowledge of a juvenile.

The trial court imposed illegally lenient sentences for Defendant's guilty pleas to three counts of felony carnal knowledge of a juvenile. The penalty provision for felony carnal knowledge of a juvenile requires the trial court to order the seizure and impoundment of any personal property used in the commission of the offense. La.R.S. 14:80(D)(2). The trial court failed to impose such an order in the present case. Thus, the sentences imposed for felony carnal knowledge of a juvenile are illegally lenient. However, because the issue was not raised as an error, we will take no action related to this issue on appeal. See State v. Aguillard , 17-798 (La.App. 3 Cir. 4/11/18), 242 So.3d 765, writ denied , 18-1207 (La. 3/6/19), 266 So.3d 897 ; State v. Goodeaux , 17-441 (La.App. 3 Cir. 11/2/17), 231 So.3d 124, writ denied , 17-2143 (La. 9/14/18), 252 So.3d 488 ; State v. Celestine , 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573 ; and State v. Smith , 10-830 (La.App. 3 Cir. 2/9/11), 58 So.3d 964, writ denied , 11-503 (La. 9/30/11), 71 So.3d 279.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends his sentences are excessive because "they are nothing more than cruel and unusual punishment." Defendant's argument is based upon a claim that the trial court failed to consider mitigating factors and concluded, as Defendant believes, that "[l]esser terms of imprisonment without benefit of probation, parole, or suspension of sentence on the oral sexual battery offenses and probated sentences on the felony carnal knowledge of a juvenile offenses with special conditions of probation to include treatment programs would best serve the community and Appellant." Defendant argues the trial court failed to give proper consideration to the fact that he is a first felony offender, admitted to police that he had had sexual intercourse with the victim, pled guilty, and had a long history of working hard and helping support those around him, including family, neighbors, and members of his church while young.

Louisiana courts have laid out the following guidelines regarding a review for excessive sentence:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La. 6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Furthermore, in State v. Baker , 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied , 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied , 07-1116 (La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit's three factor test from State v. Lisotta , 98-648, (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes.

NATURE OF THE CRIMES

At the time of the offenses, oral sexual battery was defined under La.R.S. 14:43.3 :

A. Oral sexual battery is the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender, or the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim, when any of the following occur:
(1) The victim, who is not the spouse of the offender, is under the age of fifteen years and is at least three years younger than the offender.

The maximum sentence for such oral sexual battery was ten years imprisonment with or without hard labor and without the benefit of probation, parole, or suspension of sentence under La.R.S. 14:43.3(C)(1). Additionally, felony carnal knowledge of a juvenile was defined as occurring under La.R.S. 14:80(A) when:

(1) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater[.]

The maximum sentence for felony carnal knowledge of a juvenile is a $ 5000 fine, or ten years imprisonment with or without hard labor, or both under La.R.S. 14:80(D)(1).

Both offenses for which Defendant pled guilty involved the use of a juvenile victim, in this case the thirteen-to-fourteen-year-old daughter of Defendant's girlfriend, to satisfy Defendant's own sexual desires. Additionally, the trial court specifically found Defendant groomed the juvenile by slowly escalating the contact, which occurred when Defendant was left to babysit the victim.

NATURE AND BACKGROUND OF DEFENDANT

Defendant's primary argument regarding his sentences is that the trial court failed to consider mitigating factors regarding his nature and background. As noted by Defendant, the supreme court listed the following as factors that should be considered by a trial court in particularizing a sentence:

The factors the trial judge should consider include the defendant's personal history (e.g. age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant's prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation through correctional services other than confinement.

State v. Crawford , 410 So.2d 1076, 1078-79 (La. 1982).

Defendant was in his mid-thirties when he began dating K.V.'s mother and subsequently began abusing K.V., who was thirteen when contact between the two began. Defense counsel's sentencing memorandum included letters from Defendant's mother, two sisters, and his brother, which were accepted by the trial court prior to sentencing. The memorandum includes the following regarding the mitigating factors indicative of his nature that Defendant would like considered:

[Defendant] respectfully requests that the court, in sentencing him, look beyond his offense. He is more than a convicted felon. He is the loving son who took his mother in after she was widowed, and intends to do so again after he is released from incarceration, so he can care for her as she ages. He is the sibling who was always there for his brother and sisters. He is a man who has struggled with addiction, but has resolved to become a better, healthier, sober person going forward.

The trial court's view of Defendant's nature, however, was rather different. It stated as follows:

While his mother and sister and brother claim that he was a good son and a good brother, I don't dispute that. However, he was also a good sexual deviant and he took a child's innocence, a child who will feel this effect for the rest of her life and who is already feeling it right now, as the mother testified, having to go back to counseling.
In the pre-sentence investigation, the victim statement shows and corroborates the mother's testimony today, how the victim in this case has become socially withdrawn and is struggling as a result of Mr. Young's actions, a man that she called Poppa or Poppa Bear. He used a child that he treated like a daughter for his own sexual gratification. That is a heinous crime.

SENTENCES IMPOSED FOR SIMILAR CRIMES

Although Defendant cites the factors provided in Lisotta, 745 So.2d 1183, which were adopted by this court in Baker , 956 So.2d 83, he provides no case law to support his assertion that he should receive lesser sentences than what he received. In State v. Hotoph , 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, writ denied , 99-3477 (La. 6/30/00), 765 So.2d 1062, and writ denied , 00-150 (La. 6/30/00), 765 So.2d 1066, the fifth circuit upheld concurrent fifteen-year sentences for a first offender convicted of aggravated incest and two counts of oral sexual battery. The Hotoph court noted the defendant faced a maximum of fifty years imprisonment if his sentences had been ordered to run consecutively, or twenty years imprisonment for concurrent sentences. Similarly, we note that had Defendant in the instant case been convicted of all ten counts with which he was originally charged, with the sentences running consecutively, he would have faced a maximum sentence of one-hundred years imprisonment, fifty without benefits. If the sentences were to run concurrently, Defendant faced a maximum of ten years imprisonment without benefits. However, the State's dismissal of four of the charges against Defendant as part of the plea agreement lowered Defendant's maximum possible sentencing exposure from one hundred years, fifty without benefits, to sixty years, thirty without benefits. Defendant ultimately received twelve years imprisonment, seven without benefits.

In State v. Anderson , 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483, this court stated:

To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice, or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981) ; State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).

Although Defendant's seven-year sentences for oral sexual battery are on the higher end of the ten-year sentencing range, and Defendant's five-year sentences for felony carnal knowledge of a juvenile are mid-range sentences, we cannot say the trial court's sentences represent an abuse of discretion. As noted by the trial court, Defendant was thirty-five when he began inappropriate physical contact with the then thirteen-year-old victim, which contact got progressively worse and lasted for roughly a year. Although Defendant argues a lesser sentence would be better for everyone, the relevant question is "whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate." Cook , 674 So.2d at 959, quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984). We find that this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second and final assignment of error, Defendant contends the trial court erred in running his sentences for oral sexual battery consecutively with his sentences for felony carnal knowledge of a juvenile. As noted by Defendant in his brief to this court, La.Code Crim.P. art. 883 permits a trial court to order consecutive sentences even for crimes that are part of a common scheme or plan:

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.

In State v. Urena , 15-1065, pp. 4-5 (La.App. 3 Cir. 4/6/16), 215 So.3d 813, 817, writ denied , 16-1209 (La. 5/19/17), 219 So.3d 336, this court noted the following with regard to consecutive sentences for a first-time offender:

"[I]n cases involving offenders without prior felony record, concurrent rather than consecutive sentences should be imposed, particularly where the convictions arise out of the same course of conduct." State v. Brown, 627 So.2d 192, 199-200 (La.App. 3 Cir.1993), writ denied, 93-3101 (La. 3/18/94), 634 So.2d 850 (citing State v. Jacobs, 383 So.2d 342 (La.1980) ; State v. Cox, 369 So.2d 118 (La.1979) ).
Among the factors to be considered are the defendant's criminal history, State v. Ortego, [382 So.2d 921 (La.1980), cert. denied , 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980) ]; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986) ; the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986) ; the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986) ; the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983) ; whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982) ; the defendant's apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987) ; the potential for the defendant's rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983) ; State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987) ; and whether the defendant has received a benefit from a plea bargain, State v. Jett, supra ; State v. Adams, supra.
State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La. 3/23/01), 787 So.2d 1010.
In State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917 (La. 6/25/04), 876 So.2d 823 (citing State v. Pittman, 604 So.2d 172 (La.App. 4 Cir.1992), writ denied, 610 So.2d 796 (La.1/8/93) ), the fourth circuit set forth the standard to be used when considering consecutive sentences for crimes arising out of the same scheme or plan, as follows: "[T]he trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.[Code Crim.P.] art. 894.1."

In Urena , 215 So.3d 813, the defendant was convicted of five counts of aggravated incest involving inappropriate touching of his stepdaughter, beginning when she was five years old and continuing until she was in junior high school. He ultimately received a ten-year sentence on each count, with the first two counts to run consecutively, and the remainder to run concurrently, for a total of twenty years at hard labor. The defendant challenged the total length of his sentence, arguing the combined twenty years was excessive. Although this court recognized the convictions arose out of the same course of conduct, it nonetheless found the trial court's stated reasoning was sufficient to justify the consecutive sentences and twenty years total incarceration. Amongst the reasons considered were the following:

After adopting by reference the factors considered at the original sentencing hearing, the trial court noted that Defendant was a first felony offender and stated:
However, having noted that, I have also noted and will reiterate that the Defendant was the juvenile's stepfather at the time who used his position to prey on this young victim who was under his supervision and control when he committed the offenses. He, thus, violated his sacred obligation to protect and nurture her.
The court also specifically finds that the Defendant deliberately and repeatedly sexually abused the child, which has caused lasting emotional problems. Undoubtedly the victim will carry the scars of what he did to her throughout her life .... And whether she will be able to have a relationship with an adult male because of this, I'm certainly not in a position to answer. But if you look at the statistics, problems can and do occur repeatedly because of these type situations.
This sexual abuse occurred from 1998 through 2004 and started when she was five years old. These repeated acts reflected a propensity to prey on one unable to protect herself when so young and vulnerable and the incapacity of resistance given her young age when this started.
The trial court then discussed La.R.S. 14:81.2(C)(1), molestation of a juvenile, noting that "the reason I point this particular statute out is to point out that the legislature has recognized the seriousness, if you will, of the offense when it occurs over a period of time."
The trial court continued:
In this case, it was approximately a six-year period of time. And because of the psychological and emotional trauma, certainly repeated acts over this lengthy period of time causes that to endure and last, if you will. Plus, the egregiousness and gravity of the offenses, the vulnerability of the victim, the harm done to the victim in the manner of psychological and emotional trauma and the duration of time over which these events occurred are all factors which have been considered by this court in imposing consecutive sentences. Moreover, notably the Defendant's actions were not part of a single, isolated offense or occurrences nor can it be said that Defendant has accepted responsibility for his actions at least of the time the pre-sentence was composed.

Urena , 215 So.3d at 818-19.

Like the defendant in Urena , the trial court in the instant case specifically found Defendant violated his position of trust over the victim, who was the teenage daughter of his then-girlfriend. Furthermore, the trial court noted the victim was undergoing counseling as a result of Defendant's action. Finally, the trial court specifically noted it found that Defendant "groomed" the victim over time, initially just fondling her when she was thirteen and eventually having sexual intercourse with her by the time she was fourteen. Therefore, we disagree with Defendant's argument that "[t]he trial court failed to articulate sufficient reasons why it chose to order the oral sexual battery sentences to be served consecutively to the sentences imposed for felony carnal knowledge of a juvenile. Resentencing is necessary."

As noted by the Urena court, the factors relevant to instituting consecutive sentences include the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victim, and the benefit to Defendant of a plea agreement. As previously discussed, Defendant's plea agreement lowered his total sentencing exposure in the event of consecutive sentences. Furthermore, the trial court clearly considered the gravity of the offense and the harm done to the victim, specifically calling Defendant's actions "a heinous crime." Despite Defendant's status as a first offender, we cannot say that the trial court erred in running Defendant's sentences for oral sexual battery consecutively to his sentences for felony carnal knowledge of a juvenile where the trial court articulated its reasoning, particularly in light of this court's ruling in Urena .

CONCLUSION

For the reasons set forth above, we affirm Defendant's convictions and sentences.

AFFIRMED.

      In accordance with La.R.S. 46:1844(W), the victim will be referred to by her initials, given that she is both a juvenile and the victim of a sex offense.

      We note that the State attempts to direct this court to lewd text messages between Defendant and the victim; however, since those text messages do not appear in the record, they are not properly before this court for consideration.

      We note that oral sexual battery previously carried a maximum sentence of fifteen years, rather than its current ten-year maximum.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Curtis CHELEY
    18-806
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Paula C. Marx, Louisiana Appellate Project, P.O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Curtis Cheley
    Asa Allen Skinner, District Attorney, Thirtieth Judicial District Court, Terry W. Lambright, Lea Hall, Assistant District Attorneys, P.O. Box 1188, Leesville, LA 71496-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Curtis Cheley, David Wade Correctional Center, 670 Bell Hill Road, Homer, LA 71040-2150, PRO SE
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

For the reasons discussed in the consolidated case of State v. Cheley , 18-805 and 18-806 (La.App. 3 Cir. 5/1/19), 270 So.3d 870, the third felony offender conviction is affirmed, the sentences are vacated, and the matter is remanded for further proceedings.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.


text:
    Dr. Joe W. AGUILLARD v. LOUISIANA COLLEGE
    18-946
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, The Pesnell Law Firm, A P.L.C., P. O. Box 1794, Shreveport, LA 71166-1794, (318) 226-5577, COUNSEL FOR PLAINTIFF/APPELLANT: Dr. Joe W. Aguillard
    Charles S. Weems, III, Jonathan D. Stokes, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana College
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

This appeal comes to this court from a judgment granting exceptions of no cause of action and res judicata and dismissing a petition to annul a judgment confirming an arbitration award. The arbitration award was in favor of a college in a wrongful termination suit brought against the college by its former president and tenured faculty member. We find no error by the trial court.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff/Appellant, Joe Aguillard (Aguillard), became the president of defendant/appellee, Louisiana College (Louisiana College) on January 18, 2005. Aguillard served in that capacity until April 15, 2014, when he became "president emeritus" of Louisiana College and a fully tenured member of the faculty at Louisiana College per written employment agreement.

In March 2016, following notice, a due process hearing before a faculty committee of his peers, and an appeal to the Board of Trustees, Aguillard was fired as president emeritus and tenured professor. Aguillard filed suit alleging tort and contract issues against Louisiana College and others. Per their agreement, Aguillard and Louisiana College entered into arbitration. In October 2016, the arbitration panel dismissed, with prejudice, the breach of contract, wrongful termination, and detrimental reliance claims filed by Aguillard against Louisiana College. This arbitration award was confirmed by a consent judgment signed by both Aguillard and Louisiana College in September 2017. This confirmation judgment became a final judgment after all time limits for appeal or modification had run.

In March 2018, Aguillard filed a petition to annul the judgment confirming the arbitration award under La.Code Civ.P. art. 2004 against Louisiana College. Aguillard's petition alleges that Louisiana College's failure to inform him of its acceptance of a $ 10,000,000.00 donation subject to the condition that he remain "President Emeritus" of Louisiana College for at least five years was an ill practice because, at arbitration , Louisiana College claimed that Aguillard was employed at will versus his employment having a term. Aguillard contended that Louisiana College's acceptance of the donation served as a stipulation pour autrui that amended his employment contract to have a term. As such, Aguillard alleged that Louisiana College's ill practice was violating its continuing duty to disclose this information to him, the arbitration panel, and the court.

In response, Louisiana College pointed out that Aguillard was fired for cause. Accordingly, whether his contract had a term is not relevant, and "[a]rticle 2004 dictates that a judgment will not be annulled on account of fraud or ill practice in the course of a legal proceeding if the fraud or ill practice pertained to a matter irrelevant to the basis of the decision." Belle Pass Terminal, Inc. v. Jolin, Inc. , 01-149, p. 7 (La. 10/16/01), 800 So.2d 762, 767. This is true because, under those circumstances, the judgment "was not obtained by fraud or ill practice." Id.

Moreover, Louisiana College states that even if Aguillard's amended petition was taken as true, the ill practice alleged related to the arbitration proceeding and its award. As such, Louisiana College, citing Napolitano v. Gill , 12-206 (La. 5/4/12), 88 So.3d 446, filed exceptions of no cause of action and res judicata based on the untimeliness of Aguillard's initial petition to annul and the fact that Aguillard's allegations relate to the arbitration award, not the confirmation judgment.

The trial court granted these exceptions, dismissing Aguillard's petition to annul. Aguillard appeals this judgment of the trial court and assigns two errors.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred in sustaining Defendant's Exception of No Cause of Action filed in response to a Petition to Annul Judgment under La. Code Civ. P. art. 2004 and in dismissing Plaintiff's Petition to Annul Judgment, as amended, with prejudice.

2. The Trial Court erred in sustaining Defendant's Exception of Res Judicata based upon the Trial Court's judgment confirming the Arbitration Panel's Award which Plaintiff was seeking to annul under La. Code Civ. P. art. 2004.

ASSIGNMENT OF ERROR NUMBER ONE:

Aguillard's first assignment of error is that the trial court erred in sustaining Louisiana College's exception of no cause of action and in dismissing his petition to annul judgment, as amended, with prejudice. We find no merit to this assignment of error.

Our supreme court, in Ramey v. DeCaire , 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19 (citations omitted), stated the following:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition, states any valid cause of action for relief.

In the case before us, Aguillard filed his amended petition alleging a violation of La.Code Civ.P. art. 2004. That single alleged violation is that Louisiana College's failure to inform him of its acceptance of a $ 10,000,000.00 donation subject to the condition that he remain "President Emeritus" of Louisiana College for at least five years was an ill practice because, at arbitration , Louisiana College claimed that Aguillard was employed at will versus his employment contract containing a term of five years.

Louisiana Code of Civil Procedure Article 2004 states:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

In Napolitano , 88 So.3d at 446-47 (emphasis added), the Louisiana Supreme Court stated:

This matter arises from a dispute between attorneys over fees. After arbitration, the arbitrator awarded plaintiff 50% of the fees in the underlying litigation. Plaintiff then filed a proceeding in the district court to confirm the arbitration. After a contradictory hearing at which both attorneys appeared, the district court rendered judgment on November 19, 2010, confirming the arbitrator's award. Defendant did not move for a new trial, nor did he file a motion and order for appeal. Three months later, on February 9, 2011, defendant filed a petition to annul the judgment of the arbitrator, alleging the arbitrator erred in prohibiting one of defendant's witnesses from testifying during the arbitration, and erred in determining the amount of fees that should be divided. Plaintiff responded by filing an exception of no cause of action. The district court overruled the exception, and the court of appeal denied plaintiff's request for supervisory review. Plaintiff then sought review in this court.
In essence, defendant's petition alleges the arbitration award should be annulled because the arbitrator failed to allow one of his witnesses to testify. Such a ground might arguably be a basis for vacating the award under La. R.S. 9:4210(C), which provides an award may be vacated "[w]here the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy , or of any other misbehavior by which the rights of any party have been prejudiced." However, La. R.S. 9:4213 provides such a motion must be filed within three months after the arbitrator's award is filed or delivered. Defendant's petition to annul was filed well outside of this time period.
As a result, defendant's remedy would be limited to an action for nullity of the district court's judgment on the basis of fraud or ill practices under La.Code Civ. P. art. 2001 et seq. Nothing in defendant's petition for nullity alleges fraud or ill practices in connection with the district court's judgment.
Accordingly, the writ is granted. The judgment of the district court is reversed, and plaintiff's exception of no cause of action is granted. Pursuant to La.Code Civ. P. art. 934, the case is remanded to district court to determine whether the objection may be removed by amendment of the petition, and if so, to set an appropriate delay for amendment. La.R.S. 9:4213.

Here, Aguillard's petition to annul was filed on March 19, 2018. The arbitrator's award was filed or delivered on October 6, 2017. Thus, as was the case in Napolitano , Aguillard's petition to annul was filed more than three months after the arbitrator's award was delivered. As such, according to Napolitano , Aguillard's remedy is limited to an action for nullity of the trial court's judgment. Nothing in Aguillard's amended petition alleges fraud or ill practices in connection with the trial court's judgment confirming the arbitrator's findings. Therefore, like in Napolitano , Louisiana College's exception of no cause of action was properly granted by the trial court and must be upheld by this court.

ASSIGNMENT OF ERROR NUMBER TWO:

Aguillard's second assignment of error is that the trial court erred in sustaining Louisiana College's exception of res judicata. Our finding in Assignment of Error Number One that the trial court property dismissed Aguillard's amended petition for failing to state a cause of action renders this assignment of error moot. As such, any adjudication of this assignment of error would have no practical value.

CONCLUSION:

Joe Aguillard raises two assignments of error. We find no merit in the first and uphold the trial court's grant of Louisiana College's exception of no cause of action. This finding renders Aguillard's second assigned error moot. All costs of these proceedings are assessed to Joe Aguillard.

AFFIRMED.


text:
    RAIN CII CARBON, L.L.C. v. RECON ENGINEERING, INC. and Recon Management Services, Inc.
    NO. 2018-CA-0916
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 1, 2019
   JAMES M. GARNER, PETER L. HILBERT, JR., THOMAS J. MADIGAN II, STUART D. KOTTLE, JAMES EDWARD KUHN, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, Suite 2800, New Orleans, Louisiana 70112, COUNSEL FOR PLAINTIFF/APPELLEE

ROBERT I. SIEGEL, ALISTAIR M. WARD, GIEGER, LABORDE & LAPEROUSE, 701 Poydras Street, Suite 4800, New Orleans, Louisiana 70139, COUNSEL FOR INTERVENOR-APPELLANT/CATLIN SPECIALITY INS. CO.

PATRICK J. MCSHANE, DANICA BENBOW DENNY, KATHLEEN P. RICE, LAUREN GUICHARD, 3700 Energy Centre, 1100 Poydras St., New Orleans, Louisiana 70163, COUNSEL FOR INTERVENOR-APPELLANT/ALTERRA AMERICA INS. CO.

SIDNEY W. DEGAN III, KARL H. SCHMID, CATHERINE N. THIGPEN, 400 Poydras St., Suite 2600, New Orleans, Louisiana 70130, COUNSEL FOR INTERVENORS-APPELLANTS/ILLINOIS NATIONAL INS. CO. AND CHARTIS SPECIALTY INS. COMPANY

KRISTOPHER T. WILSON, HEATHER N. SHARP, LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARDSP, 601 Poydras Street, Suite 2775, New Orleans, Louisiana 70130, COUNSEL FOR INTERVENOR-APPELLANT/FIRST FINANCIAL INS. CO.

(Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins )

JAMES F. MCKAY III, CHIEF JUDGE

In this arbitration case, the intervenors, Catlin Specialty Insurance Company, Alterra America Insurance Company, First Financial Insurance Company, Chartis Specialty Insurance Company, and Illinois National Insurance Company, in their capacities as the alleged insurers of defendants, ReCon Engineering, Inc. and ReCon Management Services, Inc. (sometimes hereafter referred to collectively as ReCon), appeal the trial court's granting of a dilatory exception of lack of procedural capacity and its confirmation of an arbitration award in favor of plaintiff, Rain CII Carbon, L.L.C. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2010, Rain started a project to build a waste heat recovery power generation unit at one of its facilities in southwest Louisiana in order to capture heat exhausted from the calcinating process and convert it to usable electricity. For the project, Rain retained the services of Recon Engineering, Inc., Turner Industries Group, L.L.C., and Victory Energy Operations, LLC.

On March 15, 2013, Rain originally filed suit against ReCon, Turner, and Victory in the 14th JDC for the Parish of Calcasieu. Due to an arbitration agreement between Rain and ReCon, ReCon compelled Rain to arbitration. Rain then sought to file a direct action claims against ReCon's insurers (Catlin Specialty, Alterra America, First Financial, Chartis Specialty, Illinois National, and Imperium Insurance Company). Like ReCon, the insurers successfully argued that Rain could not litigate its claims against them due to the pending arbitration. Rain then proceeded to arbitration.

Rain sought to join the insurers to the arbitration proceedings but the insurers actively and successfully opposed joinder. The R-7 Arbitrator found that the insurers were non-signatory parties and, therefore, could not be compelled to join the arbitration proceeding.

Rain arbitrated its claims against ReCon at a final hearing on September 28, 2017 in New Orleans. On October 26, 2017, the Arbitrator rendered an arbitration award in favor of Rain and against ReCon in the amount of $ 4,430,404.74, representing a principal sum of $ 3,388,707.00; interest from the date of the arbitration demand in the amount of $ 638,933.74; and attorney's fees in the amount of $ 402,764.00.

On April 24, 2018, Rain filed a motion to confirm arbitration award in the Civil District Court for the Parish of Orleans. On May 14, 2018, the insurers filed a petition for intervention and attempted to oppose confirmation. The insurers took a contrary position from what they had taken in the previous proceeding. They claimed that they did not have notice of the arbitration and the arbitration award should be vacated. In addition to their petition for intervention, the insurers filed an opposition to the motion to confirm arbitration award, a motion to vacate the arbitration award, a declinatory exception of lack of jurisdiction, and peremptory exceptions of no cause of action and no right of action. In response, on June 15, 2018, Rain filed exceptions of no right of action, no cause of action, lack of procedural capacity, and prescription, along with a motion for a protective order.

A hearing took place on July 6, 2018. On August 10, 2018, the trial court granted Rain's exception of lack of procedural capacity, which it found rendered the insurers' exceptions moot; granted the motion to confirm arbitration award; found Rain's other exceptions to be moot; and assessed all costs against the intervenors. It is from this judgment that the insurers now appeal.

DISCUSSION

On appeal, the insurers raise the following specifications of error: 1) the district court erred in finding the insurers-intervenors lacked the procedural capacity to oppose the confirmation of an underlying, default arbitration award against their insured; and 2) the district court erred in confirming a default arbitration award entered by an arbitrator who "manifestly disregarded the law" and lacked jurisdiction.

"The de novo standard of review ... applies to our review of the trial court's ruling on a dilatory exception of procedural capacity." English Turn Prop. Owners Ass'n v. Taranto, 16-0319, pp. 5-6 (La.App. 4 Cir. 4/19/17), 219 So.3d 381, 387, writ denied, 17-1100 (La. 10/16/17), 2017 WL 4891599, --- So.3d ---- (citing Wells v. Fandal, 13-620, p. 7 (La.App. 5 Cir. 2/12/14), 136 So.3d 83, 87 ). See also Gunasekara v. City Of New Orleans through Munster, 17-0914, p. 3 (La.App. 4 Cir. 3/28/18), 243 So.3d 623, 626 ("The standard of review of a trial court's ruling on an exception of no right of action is de novo. " (citations omitted); Woodard v. Upp, 13-0999, p. 5 (La.App. 1 Cir. 2/18/14), 142 So.3d 14, 18 ("[t]he determination of whether a party has the procedural capacity to sue or be sued involves questions of law which is reviewed under the de novo standard of review to determine whether the ruling of the trial court was legally correct.")

"The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in judgment, and/or challenges the authority of a plaintiff who appears in a purely representative capacity." English Turn., p. 6, 219 So.3d at 387. See also Harvey v. State, 14-0156, p. 12 (La.App. 4 Cir. 12/16/15), 183 So.3d 684, 695, writ denied, 16-0105 (La. 3/4/16), 188 So.3d 1060. The exception "tests a party's legal capacity to bring suit." Mt. Zion Baptist Ass'n v. Mt. Zion Baptist Church # 1 of Revilletown Park, 16-0151, p. 5 (La.App. 1 Cir. 10/31/16), 207 So.3d 414, 417, writ denied, 16-2109 (La. 2/3/17), 215 So.3d 697.

The insurers took a contrary position as they had taken in the previous proceeding. They claimed they did not have notice of the arbitration and that the arbitration award should be vacated, while ignoring the fact that Rain had sought to join the insurers to the arbitration. In support of the exceptions of lack of procedural capacity, no right of action, no cause of action, and prescription, Rain's central argument was that the insurers could not intervene because they were not parties to the arbitration, as required by La. R.S. 9:4209.

Under the express provisions of the Louisiana Arbitration Act ( La. R.S. 9:4210 ) and Section 10 of the Federal Arbitration Act (FAA), only a "party to the arbitration can file a motion to vacate, modify, or correct an arbitration award. Rain tried to join the insurers in the arbitration, but the insurers objected and successfully opposed their joinder in the arbitration.

Because the insurers were not parties to the arbitration, Rain filed an exception of lack of procedural capacity, among other exceptions, in response to the insurer's intervention and motion to vacate the arbitration award. The district court correctly sustained the exception of lack of procedural capacity and granted the motion to confirm the arbitration award.

"[U]nless the award is vacated, modified, or corrected" under the exclusive statutory grounds, a court must grant a motion to confirm an arbitration award as expressly provided in La. R.S. 9:4209 of the Louisiana Arbitration Law and Section 9 of the FAA. Accordingly, there was no valid motion to vacate, modify, or correct the arbitration award before the trial court because the insurers did not qualify as "part[ies] to the arbitration" capable of filing a motion to vacate the arbitration award. On that basis alone, the district court was correct in confirming the arbitration award. Affirming the district court's judgment sustaining the exception of lack of procedural capacity pretermits any consideration of the insurers' arguments for vacatur.

CONCLUSION

The district court correctly held that the insurers lacked the procedural capacity to file their motions in the judicial proceeding to confirm Rain's arbitration award. In the 14th JDC, the insurers were able to repel Rain's claims by arguing that Rain's claims against ReCon must be arbitrated. In the arbitration, however, after Rain sought to join the insurers, the insurers successfully opposed joinder to the arbitration. As a result, the insurers were not parties to the arbitration and did not have the procedural capacity to later file motions in the judicial proceeding to confirm Rain's arbitration award. Accordingly, the district court's judgment is affirmed.

AFFIRMED

DYSART, J., DISSENTS

DYSART, J., DISSENTS.

I respectfully disagree with the majority's view of La. R.S. 9:4209 as it applies to the circumstances of this case. Under this statute, "[a]t any time within one year after the award is made any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the award...." La. R.S. 9:4209. In this matter, none of the Insurers of ReCon Engineering and ReCon Management Services, Inc., were "part[ies] to the arbitration" which Rain CII sought to confirm in Orleans Parish Civil District Here, the insurers of Recon were simply attempting to intervene in the confirmation proceeding in the Civil District Court as an interested party.

I find nothing in the Louisiana Binding Arbitration Laws which prohibits an intervention in such an action by an interested party. In my view, the Insurers here have an interest in the pending action concerning Rain's Motion to Confirm Arbitration Award. Thus, in my opinion, the trial court erred in granting Rain's dilatory exception of lack of procedural capacity.

First and foremost, I do not believe there are grounds in this matter for which an exception of lack of procedural capacity would be appropriate. "The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in judgment, and/or challenges the authority of a plaintiff who appears in a purely representative capacity." English Turn Prop. Owners Ass'n v. Taranto , 16-0319, p. 6 (La. App. 4 Cir. 4/19/17), 219 So.3d 381, 387, writ denied , 17-1100 (La. 10/16/17), --- So.3d ----, 2017 WL 4891599. See also , Harvey v. State , 14-0156, p. 12 (La. App. 4 Cir. 12/16/15), 183 So.3d 684, 695, writ denied , 16-0105 (La. 3/4/16), 188 So.3d 1060. That is, the exception "tests a party's legal capacity to bring suit." Mt. Zion Baptist Ass'n v. Mt. Zion Baptist Church # 1 of Revilletown Park , 16-0151, p. 5 (La. App. 1 Cir. 10/31/16), 207 So.3d 414, 417, writ denied , 16-02109 (La. 2/3/17), 215 So.3d 697 (emphasis added).

Importantly, " '[l]ack of capacity" is not synonymous with no right of action." Bridges v. Anderson , 16-0432, p. 7 n.5 (La. App. 4 Cir. 12/7/16), 204 So.3d 1079, 1083, writ denied, 17-0194 (La. 3/24/17), 216 So.3d 817 ; Mt. Zion Baptist Ass'n, 16-0151, p. 5, 207 So.3d at 417. The latter, as is well-settled under Louisiana law, "serves to question whether [a] plaintiff in [a] particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation." Badeaux v. Sw. Computer Bureau, Inc. , 05-0612, pp. 5-6 (La. 3/17/06), 929 So.2d 1211, 1217. The exception of lack of procedural capacity, on the other hand, examines a party's legal capacity or lack thereof. Bridges , 16-0432, p. 7n.5, 204 So.3d at 1083. The Louisiana Supreme Court has succinctly differentiated between the two exceptions:

"[T]he function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Hood v. Cotter , 08-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. In contrast, an exception of lack of procedural capacity "challenges the right of a party to proceed (although the party may be asserting a real and actual interest) because of some procedural incapacity such as minority." Woodlawn Park Ltd. P'ship v. Doster Constr. Co., Inc. , 623 So.2d 645, 646 n. 5 (La.1993).

Udomeh v. Joseph , 11-2839, p. 8 n.2 (La. 10/26/12), 103 So.3d 343, 348.

In this context, I find Rain's position, in reliance on Dorvin Land Corp. v. Jefferson Parish , 469 So.2d 1011, 1013 (La. App. 5 Cir. 1985), that "[w]hen the plaintiff cannot 'show a specific assignment of the right to claim the damages from the owner [of the right], it has no procedural capacity to bring the suit' " to be misplaced. Unlike the instant matter, at issue in Dorvin was a peremptory exception of no right of action, rather than an exception of lack of procedural capacity. Dorvin recognized that, under La. C.C.P. art. 681, "an action can be brought only by a person having a real and actual interest which he asserts." Id. at 1013. There, the plaintiff claimed damages to his property sustained prior to his ownership. The Court, noting that "the landowner at the time of the alleged damages is the person with the real and actual interest to assert the claim for damages to the land," had no right of action in the matter. Id. Thus, Dorvin has no bearing on an exception of lack of procedural capacity.

Examples of cases which tested the exception of lack of procedural capacity reflect that the exception challenges some legal defect or irregularity in a party's capacity in a proceeding. In Burkette v. Gen. Motors, LLC , 15-0373 (La. App. 4 Cir. 11/10/15), 179 So.3d 799, 801, for instance, the mother of a minor who was killed as a result of a single vehicle accident filed wrongful death and survival actions against the manufacturer and the seller of the vehicle her husband had been driving at the time of the accident. The husband was also named as a plaintiff and the father of the child, despite the fact that the child had been born during the mother's marriage to another man, from whom she was then divorced. Because La. C.C. art. 185 provides that "[t]he husband of the mother is presumed to be the father of the child born during the marriage" and no filiation action had been filed, the trial court properly found that the husband lacked the procedural capacity to proceed. Id. , pp. 5-6, 179 So.3d 799, 802.

Likewise, in Mt. Zion Baptist Ass'n. , an unincorporated association and two individuals appearing as representatives of the association, sought an injunction against a church prohibiting it from selling cemetery plots to non-residents or descendants of their town's original inhabitants. An exception of lack of procedural capacity was filed and granted on the basis that, under Louisiana law, only the president or another authorized officer representing the unincorporated association has the procedural capacity to institute an action on its behalf. In that case, none of the purported plaintiffs had procedural capacity - the association did not appear through its president or authorized representative, and the two individuals did not allege that either was the president or an authorized representative.

Similarly, in Woodard v. Upp , 13-0999, p. 6, 142 So.3d 14, 19, the mother of a deceased minor brought a medical malpractice action against a physician and a hospital, which was met with an exception of lack of procedural capacity. Noting that "representative claims of [the minor daughter] may only be pursued by an appointed succession representative while a succession is under administration," the court held that, because the mother "did not allege nor prove that a succession has been opened and is under administration for her deceased daughter or that she had been appointed as the succession representative ... she lack[ed] the procedural capacity to file a suit in a representative capacity." Id. , p. 6, 142 So.3d at 19. See also, Wells v. Fandal , 13-620, p. 14 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 85, writ denied , 14-0511 (La. 4/25/14), 138 So.3d 645 (Board of Directors and its unnamed secretary and treasurer were "not juridical person[s] and lack[ed] the requisite procedural capacity" to be sued, because Louisiana law defines "[a] juridical person [as] an entity to which the law attributes personality, such as a corporation or a partnership."); Bourbon Investments, LLC v. New Orleans Equity LLC , 15-1234 (La. App. 4 Cir. 12/21/16), 207 So.3d 1088, 1095 (because Louisiana law regarding limited liability companies requires "unanimous written consent of all current members ... to assume the full membership interests," including the transfer of membership interest, where only two of five members voted to file a lawsuit which, inter alia, challenged the transfer of membership interests, the trial court properly granted an exception of lack of procedural capacity); Alexander v. Town of Jeanerette , 371 So.2d 1245, 1247 (La. App. 3 Cir. 1979) (where, at the time of the suit, La.C.C.P. Article 683provided that the father of a minor child "is the proper plaintiff to sue to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are not divorced or judicially separated," the trial court correctly sustained an exception of lack of procedural capacity against the mother").

Given these examples of when an exception of lack of procedural capacity is applicable, it is clear that the exception does not apply here. There can be no doubt that the Insurers have procedural capacity in this litigation and there is nothing in the record which warrants the trial court's grant of Rain's exception of lack of procedural capacity has merit.

I do recognize that, although they involve entirely different objections, have different classifications, and have different filing requirements, some courts have treated a party's exception of lack of procedural capacity as an exception of no right of action, particularly when the only objection raised concerns procedural capacity. See , e.g. , Sivils v. Mitchell , 96-2528, n.1 (La. App. 1 Cir. 11/7/97), 704 So.2d 25, 27 ("[w]e will treat the 'lack [of] procedural capacity to [sue]' objection as a peremptory exception raising the objection of no right of action."). Conversely, some courts have treated exceptions of no right of action as exceptions of lack of procedural capacity. See , e.g. , Williamson-Dickie Apparel Mfg. Co. v. Hanger, Inc. , 422 So.2d 602, 605 (La. App. 3 Cir. 1982) ; Jackson v. Dickens , 236 So.2d 81, 83 (La. App. 1 Cir.1970). In my opinion, even if this Court were to treat the trial court's judgment as a grant of an exception of no right of action, that judgment, too, would be in error.

Our jurisprudence is well-settled that "[t]he essential function of an exception of no right of action is to test whether the plaintiff has a real and actual interest in the action." Wirthman-Tag Const. Co. v. Hotard , 00-2298, p. 2 (La. App. 4 Cir. 12/19/01), 804 So.2d 856, 859 ; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission , 94-2015, p. 4 (La. 11/30/94), 646 So.2d 885, 888. That is, "[t]he peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor." Recovery Dev. Grp., LLC, Next Generation Homes, LLC v. Nat'l Baptist Convention of Am., Inc. , 10-1086, p. 10 (La. App. 4 Cir. 4/20/11), 63 So.3d 1127, 1132-33 (quoting Touzet v. V.S.M. Seafood Services, Inc. , 96-0225, p. 2 (La. App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012 ).

Here, it cannot seriously be contested that the Insurers do not have a real or actual interest in the matter before the trial court. Even a cursory examination of Rain's pleadings clearly establishes that the only parties with an actual or real interest in the proceeding to confirm the arbitration award are the Insurers. Virtually everything in the record supports this finding. Rain's motion to confirm the arbitration award, with all of its attachments, alone, makes clear that the sole object of the arbitration was Rain's interest in the Insurers' insurance policies.

Rain instituted the action in the 14th JDC against all parties. For reasons which are unclear from the record, the arbitration proceeding was then invoked in Orleans Parish, thereby conferring venue in Orleans Parish for a proceeding to confirm the award under La. R.S. 9:4209. Although the majority notes that "Rain arbitrated its claims against ReCon at a final hearing on September 28, 2017 in New Orleans," the majority fails to note that Rain had already settled all if its claims against ReCon in December, 2016, and its professional liability insurer, XL Specialty Insurance Company.

The December 6, 2016 order dismissing ReCon provided that:

- ReCon was dismissed, "with prejudice, only from any and all uninsured liability and from any and all liability covered by and within the limits" of" XL's policy";
- Rain "shall not execute against ReCon any uninsured or unrecoverable portion(s) of any potential judgment entered against ReCon";
- "ReCon shall remain a defendant solely to satisfy Louisiana's Direct Action Statute, La. R.S. § 22:1269, in order to preserve [Rain's] reserved right to proceed against ReCon solely to the extent of any other available insurance through any non-settling insurer, and ReCon shall not face any uninsured exposure."

Until that settlement with ReCon and XL in 2016, Rain was actively engaged in litigation in the 14th JDC, during which time, the trial court dismissed the Insurers on an exception of no right of action because Rain's claims were contractual in nature. The Insurers remained in the case by virtue of a fourth amended petition, filed on November 22, 2016, after the Insurers had been dismissed, but before the appeal of their dismissal was decided.

The fourth amended petition evidences an obvious effort by Rain to keep the Insurers in the lawsuit by restating the nature of its claims against ReCon so as to eliminate all claims which were contractual in nature. These machinations were clearly designed to eliminate those claims against ReCon which would not be covered by the Insurers' policies (and for which the trial court already determined there was no coverage) and to assert altogether new theories of recovery from ReCon for which coverage under those policies could potentially be triggered. At this point, ReCon had been dismissed in its entirety, with the exception of those claims for which the Insurers' policies could potentially provide coverage. That Rain had no further genuine interest in its claims against ReCon is clear from its dismissal of ReCon with the provision that it would not "execute against ReCon any uninsured liability" and its admission in its First Amended Statement of Claims that ReCon had "assigned and transferred to Rain all proceeds, payments, ... and amounts due under the Policies for all post-loss claims and causes of action that arose out of the Project." As such, as Rain alleged, Rain is the "assignee standing in the shoes of ReCon" and was asserting "claims for coverage under the Policies." For Rain to now claim that the Insurers have no real or actual interest in these proceedings is disingenuous, at best.

I would also note that the Insurers filed their exception to Rain's fourth amended petition in May, 2018. Shortly thereafter, rather than addressing those exceptions in the 14th JDC, Rain proceeded to schedule the arbitration hearing by providing notice on July 18, 2018, to ReCon (alone) of the hearing date, knowing full well that ReCon, a party with no exposure whatsoever, would not be participating in the hearing.

With respect to the Insurers' right of action to intervene in Rain's lawsuit to confirm the arbitration award, our jurisprudence indicates that this issue is "directed to the question of whether [the intervenor] has a justiciable right sufficiently connected to the main demand upon which to base [its] intervention." Interdiction of Zimmer , 17-0900, pp. 4-5 (La. App. 4 Cir. 3/14/18), 242 So.3d 669, 672. In my opinion, the Insurers have a justiciable right in this case which is clearly connected to the main demand. Indeed,:

[a]n intervention under La. C.C.P. art. 1091 is the proper procedural vehicle for a nonparty to join the litigation. Only a nonparty, i.e. , a third person, has standing to intervene under La. C.C.P. art. 1091. See Mexic v. Mexic , 00-1274, p. 5 (La. App. 1 Cir. 6/22/01), 808 So.2d 685, 689 (finding it "procedurally incorrect" for a party defendant to file a petition of intervention); Norris v. Allstate Ins. Co. , 293 So.2d 918, 922 (La. App. 3rd Cir.1974) (finding that "Allstate being a defendant, it cannot intervene.") The intervenor is the nonparty who "seeks admission as a party to protect an interest or enforce a right related to or connected with the object of the pending action." Hon. S. Plotkin & M. Akin, 1 La. Prac. Civ. Proc. Art. 1091 (2012).

St. Pierre v. Northrop Grumman Shipbuilding, Inc. , 12-0545, pp. 10-11 (La. App. 4 Cir. 10/24/12), 102 So.3d 1003, 1011.

Here, there can be no doubt that Rain's plan was to obtain an arbitration award against a non-represented party which no longer had any interest in the matter and to confirm that award so that it would have res judicata effect. See Montelepre v. Waring Architects , 00-0671, p. 4 (La. App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130 ("an arbitration award is res judicata."); Craig v. Adams Interiors, Inc. , 34,591 (La. App. 2 Cir. 4/6/01), 785 So.2d 997, 1001 ("[a]n arbitration award carries the same res judicata effect as a judgment."). Likewise, there can be no doubt that Rain would then seek to execute that arbitration award against the Insurers. There is no question, therefore, that the Insurers have the right to intervene in the action to either protect their interests or to enforce their rights clearly connected with the object of Rain's motion to confirm the arbitration. I would find that the trial court erred in holding otherwise.

Based on the foregoing, I am of the opinion that because the trial court erred in granting the exception of lack of procedural capacity, and that the Insurers had both the capacity to intervene in the action and a right of action, the trial court prematurely ruled on the motion to confirm the arbitration award. I would, therefore, reverse the judgment sustaining the exception of lack of procedural capacity and would further vacate the judgment confirming the arbitration award.

      For further background and a more detailed procedural history of the events preceding the present appeal, one may consult Rain CII Carbon, LLC v. Turner Indus. Grp., LLC, 17-223, unpub., (La.App. 3 Cir. 4/5/17), 2017 WL 1279653.

      While Imperium was named in an amending petition, it was not included in any subsequent pleadings.

      An arbitrator that decides jurisdictional questions

      La. R.S. 9:4201 et seq.

      9 U.S.C. §§ 1 et seq.

      It would also be true that the insurers had no right of action rather than no procedural capacity. See Sivils v. Mitchell, 96-2528 (La.App. 1 Cir. 11/7/97), 704 So.2d 25, 27.

      I note that there were numerous matters heard by the trial court at the July 6, 2018 hearing, including Rain's exceptions of no right of action, no cause of action, prescription and Motion for Protective Order. Numerous exceptions and motions of the Insurers were also considered at the hearing. The trial court's judgment, however, only granted Rain's exception of lack of procedural capacity (which it found rendered Rain's other exceptions moot, denied the Insurers' motions as moot and granted the Motion to Confirm Arbitration Award).

      The exception of lack of procedural capacity is dilatory, while the exception of no right of action is peremptory.

      An exception of lack of capacity is waived if not raised timely, while an exception of no right of action may be raised at any time. See La. C.C.P. art. 928.

      Unlike the Sivils case, in the instant matter, Rain raised both exceptions of lack of procedural capacity and no right of action.

      La. R.S. 9:4209 provides, in pertinent part that "[a]t any time within one year after the award is made any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the award ...."

      In Rain CII Carbon LLC v. Turner Indus. Grp., LLC , 17-223, unpub., (La. App. 3 Cir. 4/5/17), 2017 WL 1279653 at *1, an appeal Rain took with respect to the trial court's grant of the Insurers' exception of no right of action, the trial court found that Rain had no right of action against the insurers, as the pleadings reflected that all of "Rain's claims against ReCon (the Insured) arose solely out of contractual obligations," dismissing, with prejudice, all of the claims against the Insurers."

      When an exception is based upon 'the lack of connexity between the intervention and the principal demand, the proper exception is one raising the objection of no right of action.' " Id. ,p. 5, 242 So.3d at 672 (quoting IberiaBank v. Live Oak Circle Dev., L.L.C. , 12-1636, p. 6 (La. App. 1 Cir. 5/13/13), 118 So.3d 27, 31 ).

      Again, we note that the trial court's judgment granted Rain's exception of lack of procedural capacity. The same result is reached in treating the judgment as a grant of an exception of no right of action.


author: WHIPPLE, C.J.

text:
    Deborah RIEDEL, Individually, and on Behalf of Her Minor Children, Rachel Riedel and Jeremy Canzoneri v. Angie FENASCI, Hollie Realty, L.L.C./RE/MAX Northshore, Frank Cali, Theresa Cali, Landon Yarborough, Coldwell Banker Bobby Tallo Realty, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Insurance Company, MNO Insurance Company, and PQR Insurance Company
    NUMBER 2018 CA 0539
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 28, 2018
    James E. Shields, Sr., Gretna, LA, Counsel for Plaintiff/Appellant, Deborah Riedel, individually and on behalf of her minor children Rachel Riedel and Jeremy Canzoneri
    John E. McAuliffe, Jr., Metairie, LA, Counsel for Intervenor/Appellee, State Farm Fire and Casualty Company
    Samuel P. Baumgartner, Covington, LA, Counsel for Defendants/Appellees, Frank Cali and Theresa Cali
    John I. Feduccia, Hammond, LA, Counsel for Defendants/Plaintiffs-in-Reconvention/Appellees, Frank Cali and Theresa Cali
    Gary J. Giepert, Jonathan S. Giepert, New Orleans, LA, Counsel for Defendants/Appellees, Angie Fenasci and Hollie Realty, L.L.C./ReMax Northshore
    Michael P. Bienvenu, Baton Rouge, LA, Counsel for Defendants/Appellees, Landon Yarborough and Bobby Tallo Realty
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

This is an appeal by plaintiff, Deborah Riedel, individually, and on behalf of her minor children, Rachel Riedel and Jeremy Canzoneri, from a judgment of the trial court granting summary judgment in favor of defendants, Angela Fenasci and Hollie Realty, L.L.C./RE/MAX Northshore ("Hollie Realty"), and dismissing Riedel's claims against them with prejudice. For the following reasons, we recall our show cause order and affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises from the sale of a condominium in Hammond, Louisiana in 2014. Riedel had sought the assistance of real estate agent Angela Fenasci, who was employed by Hollie Realty, in purchasing a home. Riedel told Fenasci that she had owned many homes in the past, that she had "fixed them up" and sold them, and, thus, that a home that needed some work would be acceptable. Riedel discovered the particular condominium at issue through an internet search and requested that Fenasci work with her to view the property. The condominium was owned by Frank and Theresa Cali and was listed for sale by Coldwell Banker.

After viewing the condominium with Fenasci, Riedel entered into a "Louisiana Residential Agreement to Buy or Sell" ("purchase agreement") on April 25, 2014. The purchase agreement contained a "Sale 'As Is' Without Warranties" provision, stating that the property was being sold and purchased in "as is" condition and that Riedel waived all claims against the seller in redhibition or for reduction of the sales price and further stating that Riedel acknowledged that the sale was made without warranty of fitness for ordinary or particular use. Pursuant to the purchase agreement, the parties also agreed that the "Sale 'As Is' Without Warranties" provision would be made part of the Act of Sale.

Prior to the sale, Dale Brunet of Brunet's Home Inspection, L.L.C., conducted a home inspection on April 30, 2014. Fenasci scheduled and attended the home inspection with Riedel's approval. Riedel did not attend. The next day, May 1, 2014, Brunet emailed a copy of the Home Inspection Report he prepared to Fenasci, listing thirty-three "discrepancies" that he found during the inspection. Within minutes of receiving the email, Fenasci forwarded Brunet's email with the attached Home Inspection Report to Riedel.

Although Riedel contends in this litigation that she was unable to open the Home Inspection Report attached to the email from Fenasci, Riedel signed a Property Inspection Response the next day, May 2, 2014, in which she requested that the sellers repair certain discrepancies that had been listed in the Home Inspection Report, including replacing a leaking shower head and caulking the leaking tub in the master bathroom.

Thereafter, on May 9, 2014, the parties executed an Act of Sale. At the time of closing, Riedel also signed a Final Inspection Release, acknowledging that the deficiencies cited in the Property Inspection Response had been satisfactorily corrected.

At some point after the closing, Riedel began making interior repairs, at which time she alleges she discovered what appeared to be moisture and water damage. Riedel filed a claim with her homeowner's insurer, which denied the claim by letter dated September 10, 2017, stating that its inspector had found a supply line from the second floor bathroom shower head had been leaking and had caused water damage to the first floor kitchen ceiling and that the damage "showed evidence of long-term damage, rot, [and] deterioration" not covered under her policy. (R. 1683-1684, 1695-1697). A subsequent mold inspection conducted on October 30, 2014 showed evidence of suspected visible mold at that time.

Thereafter, on May 6, 2015, Riedel instituted this suit against Fenasci and Hollie Realty, among others, contending that Fenasci "had to have known about the moisture and mold" in the condominium, but represented to Riedel that the home inspector found nothing wrong with the property. Thus, she contended that Fenasci had violated her duty as a real estate agent and had committed fraud or gross negligence. She further contended that Hollie Realty was responsible for the actions of Fenasci as her employer. Riedel contended that she and her children suffered health problems as a result of their exposure to mold in the home and that the condition of the condominium rendered it uninhabitable. Thus, she sought general damages, medical expenses, attorney's fees and costs, and any other general and equitable relief deemed appropriate.

Fenasci and Hollie Realty subsequently filed a motion for summary judgment, contending that under Louisiana law, a real estate agent can only be held liable if the agent knows of a defect in the property and fails to disclose that defect to the purchaser. Thus, they asserted that because the evidence establishing that Fenasci had no knowledge of mold in the condominium was uncontested, Riedel could not establish liability on the part of Fenasci or Hollie Realty, as Fenasci's employer.

Following a hearing on the motion, the trial court issued written reasons for judgment, concluding that because Riedel could not produce any evidence that Fenasci had any knowledge of mold prior to the sale of the condominium, the motion for summary judgment should be granted. Accordingly, by judgment dated November 6, 2017, the trial court dismissed with prejudice all claims filed by Riedel, individually and on behalf of her minor children, against Fenasci and Hollie Realty.

Riedel then filed the instant appeal, contending in seven assignments of error that the trial court erred in granting the motion for summary judgment filed by Fenasci and Hollie Realty and dismissing her claims of fraud, negligent misrepresentation, failure to disclose, breach of contract, and redhibition.

RULE TO SHOW CAUSE

On April 25, 2018, this court issued a Rule to Show Cause Order, observing that the trial court's judgment was signed on November 6, 2017, with notice of the judgment issuing that same day. However, Riedel filed a motion and order of appeal on September 29, 2017 (prior to the signing of November 6, 2017 judgment), wherein she requested and was granted an appeal from a September 20, 2017 judgment rendered in favor of Fenasci and Hollie Realty. Thus, this court ordered the parties to show cause by briefs as to whether the appeal should or should not be dismissed. By order dated August 7, 2018, this court referred the Rule to Show Cause to the panel to which the appeal was assigned. Thus, we will first address the Rule to Show Cause Order.

In response to the Rule to Show Cause Order, Riedel notes that she filed three separate motions for appeal at the same time relative to three judgments rendered by the trial court following the August 28, 2017 hearing "out of an abundance of caution and to prevent missing the deadline to request [an] appeal." She concedes that the motion for appeal with regard to the judgment rendered in favor of Fenasci and Hollie Realty does not list the correct date of the signing of the judgment. Nonetheless, she asserts that she timely indicated her intent to appeal the judgment granting the motion for summary judgment filed by Fenasci and Hollie Realty.

Appeals are favored in law, must be maintained wherever possible, and should not be dismissed on mere technicalities. Fruehauf Trailer Co. v. Baillio, 252 La. 181, 190, 210 So.2d 312, 315 (1968) ; Wells v. Hannah, 2017-1399 (La. App. 1st Cir. 4/6/18), 2018 WL 1663032, *4 (unpublished). The motion for appeal filed by Riedel on September 29, 2017 presents two problems: it was filed before a judgment on the merits was signed, and it lists the incorrect date of the later-signed judgment on the merits.

As to the premature filing of the motion for appeal, a defect arising from a premature motion for appeal (i.e., one taken before the signing of a final judgment) is cured once the final judgment has been signed. Chauvin v. Chauvin, 2010-1055 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 568 n.1 ; City of Denham Springs v. Perkins, 2008-1937 (La. App. 1st Cir. 3/27/09), 10 So.3d 311, 317 n.5, writ denied, 2009-0871 (La. 5/13/09), 8 So.3d 568.

With regard to the listing of the incorrect date of the trial court's judgment on the merits, we note that Riedel's motion for appeal, brief on the merits, and the assignments of error set forth therein clearly indicate Riedel's intent to appeal the trial court's November 6, 2017 judgment granting the motion for summary judgment filed by Fenasci and Hollie Realty and dismissing the claims against those defendants. Riedel's mistake in listing the incorrect date of the judgment in her motion for appeal is insufficient grounds for the dismissal of her appeal. See Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1st Cir. 12/22/16), 209 So.3d 192, 195 ; and In re: R.B. Jr. and C.H.B., 2018-0050, (La. App. 1st Cir. 8/10/18), 2018 WL 3828795, *3 (unpublished).

Considering the foregoing, and because appeals are favored in law, must be maintained wherever possible, and should not be dismissed on mere technicalities, we recall the Rule to Show Cause Order and maintain the appeal.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jones v. Anderson, 2016-1361 (La. App. 1st Cir. 6/29/17), 224 So.3d 413, 417. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is then 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. LSA-C.C.P. art. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1st Cir. 12/21/17), 240 So.3d 932, 936, writ denied, 2018-0145 (La. 3/23/18), 238 So.3d 963. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Crosstex Energy Services, LP, 240 So.3d at 936. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Jones, 224 So.3d at 417.

DISCUSSION

In the instant case, Riedel's listed causes of action against Fenasci and Hollie Realty are all based on her contention that Fenasci either fraudulently withheld information about moisture and mold in the condominium or negligently misrepresented the condition of the condominium to her by failing to convey such information to her.

A purchaser's remedy against a realtor is in damages for fraud, pursuant to LSA-C.C. art. 1953 etseq., or for negligent misrepresentation under LSA-C.C. art. 2315. Duplechin v. Adams, 95-0480 (La. App. 1st Cir. 11/9/95), 665 So.2d 80, 84, writ denied, 95-2918 (La. 2/2/96), 666 So.2d 1104 ; Prejean v. Estate of Monteiro, 2015-0197 (La. App. 1st Cir. 9/18/15) (unpublished), 2015 WL 5515763, *3.

A claim of fraud under LSA-C.C. art. 1953 generally applies in cases where a contract exists. Prejean, 2015-0197, 2015 WL 5515763 at *3. "Fraud" is defined in the article as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." Fraud may also result from silence or inaction. LSA-C.C. art. 1953. The elements of the tort of fraud, similar to contractual fraud, are a misrepresentation of material fact made with the intent to deceive where there was reasonable and justifiable reliance by the plaintiff and resulting injury. Prejean, 2015-0197, 2015 WL 5515763 at *3.

The action for negligent misrepresentation arises ex delicto, rather than from contract. Duplechin, 665 So.2d at 84 In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. A real estate agent owes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentation. Duplechin, 665 So.2d at 84 ; Prejean, 2015-0197, 2015 WL 5515763 at *3 ; see also LSA-R.S. 37:1455(A)(15) & (27). However, the duty to disclose any material defects extends only to those defects of which the agent is aware. Osborne v. Ladner, 96-0863 (La. App. 1st Cir. 2/14/97), 691 So.2d 1245, 1257.

Moreover, as to any alleged misrepresentations that relate to defects that are apparent and discoverable on simple inspection, when inspection is afforded the buyer before the sale, and where the buyer inspects the property before the sale, the buyer cannot then complain of fraud or negligent misrepresentation. Prejean, 2015-0197, 2015 WL 5515763 at *4. In other words, there can be no recovery for fraud or negligent misrepresentation for defects discoverable by simple inspection and where the buyer inspects the property prior to purchasing it. It is the buyer's burden to prove that the alleged defects were hidden. Prejean, 2015-0197, 2015 WL 5515763 at *4.

Accordingly, because Riedel would have the burden of proof at trial of proving that Fenasci concealed or misrepresented information she had obtained prior to or at the time of the sale about water, moisture or mold issues in the condominium, Fenasci and Hollie Realty needed only to point to the absence of factual support for this element of Riedel's claims in support of their motion for summary judgment. It then became Riedel's burden to produce factual support sufficient to establish the existence of a genuine issue of fact as to whether Fenasci concealed or misrepresented such information or to establish that Fenasci and Hollie Realty were not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

In support of their motion, Fenasci and Hollie Realty submitted the Home Inspection Report completed by Brunet, which listed, among other "discrepancies," moisture damage to the wood lap siding and wood trim at the front dormer and right side of the home, a leaking shower head at the connection in the master bathroom shower, grout needed at the tub and shower wall in the master bathroom, and a leaking hot water handle on the sink faucet in the hall bathroom. Notably, Brunet attached photographs of these discrepancies to the Home Inspection Report, demonstrating that all of these discrepancies were visible and, thus, would have been apparent and discoverable to Riedel on simple inspection when she viewed the condominium. Moreover, the evidence in support of the motion further established that Fenasci forwarded Brunet's report to Riedel the same day Fenasci received it, the 1st of May, thus demonstrating the absence of intent by Fenasci to conceal any of this information from Riedel.

With regard to any contention that Fenasci had knowledge of mold in the condominium that she failed to disclose, Fenasci and Hollie Realty also submitted the affidavit of Brunet, in which he attested that at the time of the April 30, 2014 inspection of the condominium, he found no visible evidence of mold, nor any conditions that would be a reason to do further investigation or evaluation for mold. Additionally, in excerpts of Fenasci's deposition also submitted in support of the motion, Fenasci testified that she had gone to the property three times prior to the closing and that she did not see any evidence of mold or moisture any time she was there.

Although Riedel acknowledged that Fenasci had forwarded the Home Inspection Report to her, she contended in opposition to the motion for summary judgment that she had never received a copy of the report. However, as noted above, all of the discrepancies listed in the Home Inspection Report dealing with any type of water or moisture issues were visible and, thus, would have been apparent and discoverable on simple inspection by Riedel when she toured the condominium, as evidenced by the photographs attached to the report. Moreover, as Brunet attested, at the time of the April 30, 2014 inspection of the condominium, he found no visible evidence of mold, nor any conditions that would warrant further investigation or evaluation for mold, and, more importantly, the Home Inspection Report did not contain any language that would give a homeowner reason to conduct further investigation or evaluation for mold. Thus, Riedel's contention that she did not receive a copy of the Home Inspection Report prior to her purchase of the condominium simply does not create an issue of material fact as to whether Fenasci had knowledge of mold issues or other defects in the property that Riedel could not have discovered upon simple inspection or whether Fenasci then concealed or negligently failed to disclose such knowledge or information to Riedel.

Additionally, while Riedel contended in opposition to the motion for summary judgment that Brunet's deposition testimony impeached his affidavit, we disagree. In his deposition, Brunet, who is also a certified mold inspector, testified that he did not see any evidence of mold. He further explained that during his inspection, he used a protimeter to determine if there was any excess moisture behind the walls, and the meter did not show any evidence of hidden moisture.

Moreover, we note that the fact that black mold was found on inspection of the condominium in late October 2014, more than five months after Riedel's purchase, has no bearing on any knowledge Fenasci may have had concerning the existence of mold prior to or at the time of sale.

In conclusion, Riedel presented no evidence to suggest that Fenasci was aware of hidden moisture and mold issues prior to or at the time of the sale of the condominium that she failed to disclose to Riedel. As such, Riedel has failed to carry her burden of demonstrating that a genuine issue of material fact remains as to her claims against Fenasci and Hollie Realty. Instead, on the record before us, we conclude that Fenasci and Hollie Realty are entitled to judgment in their favor as a matter of law.

CONCLUSION

For the above and foregoing reasons, the April 25, 2018 Rule to Show Cause Order is recalled, and Deborah Riedel's appeal is maintained. The November 6, 2017 judgment, granting the motion for summary judgment filed by Angela Fenasci and Hollie Realty, L.L.C./RE/MAX Northshore, and dismissing with prejudice all claims against them, is hereby affirmed. Costs of this appeal are assessed against appellant, Deborah Riedel.

RULE TO SHOW CAUSE ORDER RECALLED; JUDGMENT AFFIRMED.

Higginbotham, J. concurs.

McClendon, J. concurs

      Although the Credit Deed is a part of the record on appeal, this document was apparently not introduced in support of or in opposition to the motion for summary judgment filed by Fenasci and Hollie Realty, but, instead, was filed in connection with another motion for summary judgment. Nonetheless, in the filings related to the motion for summary judgment presently before us, Riedel and Fenasci admit that the Act of Sale was executed on May 9, 2014.

      Nevertheless, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. LSA-C.C.P. art. 966(D)(2).

      Notably, in her appellate brief, Riedel attempts to raise various issues that were not raised in her memorandum in opposition to Fenasci and Hollie Realty's motion for summary judgment in the trial court and, thus, were not addressed by the trial court below. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. LSA-C.C.P. art. 966(F). Accordingly, we decline to address these issues raised for the first time on appeal.

      With regard to Riedel's contention that the trial court erred in dismissing her redhibition claim, we note that a redhibitory action is between a seller and a buyer, and without such a relationship, the action cannot be maintained. Because no legal ownership is attributable to Fenasci, she cannot be considered a seller for purposes of redhibition. Duplechin, 665 So.2d at 84.

      As noted above, Riedel testified in deposition that she received the email from Fenasci forwarding Brunet's report, but that she was unable to open the email attachment.

      Indeed, Riedel signed a "Property Inspection Response Form" on May 2, 2014, the day after the Home Inspection Report was sent by email, listing items from the report that she requested be fixed, including the leaking shower head and tub in the master bathroom.