text:
    INTERNATIONAL FIDELITY INSURANCE COMPANY v. Charla DURHAM a/k/a Charla Holsomback
    18-298
    Court of Appeal of Louisiana, Third Circuit.
    November 14, 2018
   W. Simmons Sandoz, Attorney at Law, P.O. Drawer 471, Opelousas, LA 70571-0471, (337) 942-8956, COUNSEL FOR DEFENDANT/APPELLEE: Charla Durham

Stephanie Marie Ackal, Stephanie Ackal, LLC, 1018 Harding Street, Suite 111, Lafayette, LA 70503, (337) 706-7844, COUNSEL FOR INTERVENOR/CROSS-APPELLANT: Mortgage Electronic Registration Systems, Inc.

Brian W Arabie, Arabie Law Firm, P.O. Box 3004, Lake Charles, LA 70602, (337) 493-2000, COUNSEL FOR PLAINTIFFS/APPELLANTS: Gene Mayo, Carolyn Mayo

Reid A. Jones, Wiener, Weiss & Madison, P.O. Box 21990, Shreveport, LA 71120, (318) 213-9200, COUNSEL FOR PLAINTIFF/APPELLANT: International Fidelity Insurance Company

David Durham, In Proper Person, 1816 Blankenship, DeRidder, LA 70634

Ricky L. Moses, Sheriff of Beauregard Parish, In Proper Person, 120 S. Stewart Street, DeRidder, LA 70634, (337) 462-2400

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

GREMILLION, Judge.

The notion of avoiding bail obligations conjures images of desperate fugitives fleeing justice; the bondsperson avoiding those obligations would seem far more rare, yet that is apparently the backdrop on which this drama has played out. All parties to this action to make executory a foreign judgment and to execute upon the same are appealing the trial court's judgment.

FACTS

Charla and David Durham purchased a piece of real estate in Beauregard Parish in June 2014. In December 2014, the Durhams entered into an agreement that was approved by the district court to dissolve their community property regime. Particularly relevant to this matter are Articles XVIII and XIX of the covenant, which provide:

XVIII.
Charla Durham also acknowledges that her debt is her separate obligation. She further waives and denounces any interest she may have or may have acquired in the future in David Lynn Durham's separate property, including, but not limited to the immovable property described as Lot Three (3) of Harmony Hills Subdivision in Beauregard Parish, Louisiana which bears a municipal address of 1217 Harmony Lane; any interest from any assets or investments; any fruits of any of David Lynn Durham's separate property.
XIX.
DAVID LYNN DURHAM will maintain his separate checking account at City Savings Bank (# 1682814) as well as his separate Boise Credit Union account. He will keep any and all interest he has in his IRA's, 401K, retirement accounts, stocks, bonds or other assets that he had before the marriage. He will retain the immovable property described as Lot Three (3) of Harmony Hills Subdivision in Beauregard Parish, Louisiana, which bears a municipal address of 1217 Harmony Lane, as his separate property and retain the debt for the same as his own. He will further retain the 2013 Cadillac CTS and the 2014 Chevrolet Silverado as his separate property and shall retain all debt for the same. He will further retain all income attributable to him along with all fruits thereof.

In January 2015, International Fidelity Insurance Company obtained a judgment in New Jersey against Charla for $122,695.39, allegedly arising from Charla's activities as a bail bondsperson. International Fidelity obtained an April 2015 order in Louisiana recognizing the New Jersey judgment. When it learned of the dissolution of the Durhams' community property regime, International Fidelity filed a lawsuit to annul the dissolution in September 2015.

In December 2015, the Durhams jointly sold the property to the Mayos. The Mayos had borrowed the money to purchase the home from Mortgage Electronic Registration System, Inc. (MERS) and granted MERS a mortgage on the property to secure the loan. The Mayos and MERS had obtained a title opinion that opined that David Durham was the sole owner of the property.

In September 2016, the Durhams and International Fidelity reached a compromise in the suit to annul the community property regime dissolution. Thereafter, International Fidelity had the Beauregard Parish sheriff seize the property. To petition the court to enjoin the seizure and sale of the property, the Mayos and MERS intervened in the suit to recognize the New Jersey judgment. Additionally, the Mayos asserted a claim for damages for wrongful seizure of their property.

The trial court determined that because International Fidelity had not filed a notice of lis pendens into the mortgage records, the seizure of the property was improper. The Mayos were recognized as the owners of the property in question, subject to the mortgage in favor of MERS. The Beauregard Sheriff was permanently enjoined from proceeding with the sale. The trial court found that the demands of the Mayos and MERS in their intervention to permanently enjoin the seizure and sale and to declare that International Fidelity has no rights in and to the property, were rendered moot.

ASSIGNMENTS OF ERROR

International Fidelity asserts that the trial court committed the following errors:

1. The District Court committed legal error in finding that Ms. Durham transferred her 50% interest in the Property to Mr. Durham in 2014 through the Postnuptial Agreement and/or Community Termination Judgment.
2. The District Court erred in considering testimony irrelevant to the purely legal issues to be decided and otherwise barred by the parol evidence rule.
3. The District Court erred to the extent it applied the public records doctrine as a bar against International Fidelity's rights in and to the Property.

The Mayos assign as error the trial court's ruling "to the extent that it does not expressly reserve [their] right to pursue their claim for damages and attorney fees caused by International Fidelity's wrongful seizure of their home." MERS asserts that the trial court erred in dismissing the intervention as moot and should have granted injunctive and declaratory relief to MERS and the Mayos.

Because a ruling in favor of International Fidelity would absolutely render the claims of the Mayos and MERS moot, we will address its assignments of error first.

ANALYSIS

International Fidelity maintains that the postnuptial agreement between the Durhams did not effectively transfer ownership in Charla's community portion of the home to David. As noted above, Charla "waive[d] and denounce[d] any interest she may have or may have acquired in the future in [David's] separate property," including the house. David, in turn, "[would] retain the immovable property described as Lot Three (3) of Harmony Hills Subdivision in Beauregard Parish, Louisiana, which bears a municipal address of 1217 Harmony Lane, as his separate property and retain the debt for the same as his own."

The home was purchased during the Durham's marriage. There is no assertion in the record that it was separate property before the postnuptial agreement. Therefore, it was a community asset prior to the postnuptial agreement. Pursuant to La.Civ.Code art. 2457, International Fidelity was entitled to pursue satisfaction of Charla's obligation under the judgment from pre-termination assets of the community. Only the sale of the home to the Mayos could possibly extinguish that right. International Fidelity maintains that the home never ceased to be a community asset because the language of the postnuptial agreement was not sufficient to transfer ownership.

A transfer of immovable property must be in writing, either in authentic form or by act under private signature. La.Civ.Code art. 1839.

The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the immovable. The transfer of ownership takes place between the parties by the effect of the agreement and is not effective against third persons until the contract is filed for registry in the conveyance records of the parish in which the immovable is located.

La.Civ.Code art. 517.

International Fidelity asserts that the jurisprudence has interpreted these articles as requiring that the writing constitute an "act translative of ownership." An act translative of ownership represents the owner's alienation of the thing as a whole, as opposed to granting partial enjoyment. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp. , 10-2267 (La. 10/25/11), 79 So.3d 246.

The rules governing contractual interpretation are axiomatic. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. "The words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter." La.Civ.Code art. 2047. "Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract." La.Civ.Code art. 2048. "A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective." La.Civ.Code art. 2049. And, lastly, "Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole." La.Civ.Code art. 2050.

Applying these rules to the postnuptial agreement, we find that it constitutes an act translative of ownership of Charla's interest in the home. She renounced any interest in the property, and David retained the home as his separate property. Charla was conveying her interest in the property to David. International Fidelity's first assignment of error lacks merit.

International Fidelity's second assignment of error argues that, in allowing testimony that varied the terms of a written agreement, the trial court erred in violating the parol evidence rule.

Testimony or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

La.Civ.Code art. 1848. However, this action was not brought to enforce the obligation created by the postnuptial agreement. Therefore, the parol evidence rule does not apply.

In Dawson v. Dawson , 610 So.2d 917, 919 (La.App. 1 Cir. 1992), the first circuit held that the parol evidence rule does not apply in cases in which "the writing is collateral to the issue involved and the action is not based upon the writing." Thus, whether a document that purported to be a cash sale was actually a donation was collateral to the act of sale when the issue before the court was whether the property purportedly sold was characterized as community or separate property. Quite recently, a panel of this court quoted Dawson with approval in a matter involving the appropriate allocation of a lump-sum settlement of personal injury claims after the injured married couple were divorced. Cazelot v. Cazelot , 18-44 (La.App. 3 Cir. 6/27/18), 2018 WL 3159832 (unpublished opinion).

Further, we have already determined that the postnuptial agreement is an act translative of ownership without considering the testimony of which International Fidelity complains. Therefore, even were we to agree with International Fidelity that the testimony should not have been adduced, that admission would amount to harmless error, as the testimony did not guide our determination that the agreement represents an act translative of ownership. The second assignment of error posited by International Fidelity lacks merit.

This brings the discussion to the real issue in this matter: did International Fidelity's failure to file a notice of lis pendens vitiate its right to seek enforcement of its judgment against the property? It does.

Louisiana Code of Civil Procedure Article 3751 plainly states:

The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of the pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.

International Fidelity counters that the Mayos had actual knowledge of the pendency of the suit. Does actual notice matter?

In Phillips v. Parker , 483 So.2d 972 (La.1986), the supreme court was faced with a boundary action in which possessors under an act translative of title had obtained a parcel from a common ancestor of their neighbor, who demanded that they remove a fence that overlapped her property by thirteen feet. The possessors/defendants argued that they had possessed the disputed strip in good faith and under just title, and, thus, had acquired the property by ten-year prescription. The only issue before the court was whether the possessors/defendants were good faith possessors.

The possessors/defendants had obtained a title examination, and the attorney who conducted it failed to discover that the common ancestor had already conveyed a portion to the neighbor's ancestor in title. The trial court and court of appeal both held that because the possessors/defendants had obtained a title examination, they were precluded from claiming that they possessed in good faith.

The supreme court first discussed the public records doctrine:

The fundamental principle of the law of registry is that any sale, mortgage, privilege, contract or judgment affecting immovable property, which is required to be recorded, is utterly null and void as to third persons unless recorded. Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L.Rev. 491 (1965). When the law of recordation applies, an interest in immovable property is effective against third persons only if it is recorded; if the interest is not recorded, it is not effective against third persons, even if the third person knows of the claim. This principle is traceable to the decision in McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), in which the court held that the plaintiff, as purchaser of immovable property by recorded act, was entitled to recognition as owner in a petitory action against the defendant who had purchased the property seven years earlier and had immediately gone into possession, but had not recorded the deed. In response to the defendant's argument that the plaintiff had knowledge of the prior unrecorded sale, the court reiterated its decision in Harang v. Plattsmier, 21 La.Ann. 426 (1869) that actual knowledge is not the equivalent of registry, which is absolutely required in order for the sale to affect third persons.
Thus, the law of registry does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded. The essence of the public records doctrine is that recordation is an essential element for the effectiveness of a right, and it is important to distinguish between effectiveness of a right against third persons and knowledge of a right by third persons. An unrecorded interest is not effective against anyone (except the parties). A recorded interest, however, is effective both against those third persons who have knowledge and those who do not have knowledge of the presence of the interest in the public records. From the standpoint of the operation of the public records doctrine, knowledge is an irrelevant consideration.

Id. at 975-76. (emphasis in original)(footnote omitted).

A scant three months later, the supreme court decided Dallas v. Farrington , 490 So.2d 265 (1986), in which it held that the plaintiffs' vendor's son, who then owned an adjoining estate, was not bound to deliver a servitude of passage to the plaintiffs that had been made a condition of the sale to the plaintiffs but was not included in the act of sale. Again, the absence of registry defeated actual knowledge the son may have had of his father's agreement to allow a servitude.

In London Towne Condominium Homeowner's Ass'n. v. London Towne Co. , 06-401 (La. 10/17/06), 939 So.2d 1227, the Louisiana Supreme Court reiterated its statement from Phillips , 483 So.2d 972, that "[w]hen the law of recordation applies, an interest in immovable property is effective against third persons only if it is recorded; if the interest is not recorded, it is not effective against third persons, even if the third person knows of the claim ...." London Towne , 939 So.2d at 1232 (quoting Phillips , 483 So.2d at 975 ). This is the pronouncement of the Louisiana Supreme Court, and we are bound to apply it unless and until it changes. See Oliver v. Magnolia Clinic , 11-2132 (La. 3/13/12), 85 So.3d 39. International Fidelity's third assignment of error lacks merit.

We next address the Mayos' assignment of error, which complains that the trial court erred in not expressly reserving unto them a right to pursue damages and attorney fees for the wrongful seizure of the home. Louisiana law has long recognized the right of one whose property has been wrongfully seized to recover damages. See Moses v. Am. Sec. Bank of Ville Platte , 222 So.2d 899 (La.App. 3 Cir. 1969). In not addressing the issue of damages, the judgment's silence constitutes a rejection of that demand. See Desoto v. Desoto , 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175. We find that this constitutes error and amend the trial court's judgment to specifically reserve unto the Mayos their right to pursue damages against International Fidelity.

Lastly, MERS contends that the trial court erred in dismissing its petition as moot. The judgment in the matter stated, "IT IS ORDERED, ADJUDGED AND DECREED that Gene H. Mayo and Carolyn J. Mayo are declared to be the owners of the subject property, subject to the mortgage in favor of Mortgage Electronic Registration Systems, Inc. ..." This declaration is insufficient, according to MERS, because it did not declare that International Fidelity has no rights in and to the property.

We agree that, for the sake of clarity, the judgment should have been more explicit in its declaration regarding International Fidelity's potential claims over the property. Accordingly, we amend the trial court's judgment to declare that the Mayos own the subject property subject to the mortgage in favor of Mortgage Electronic Registration Systems, Inc., and free and clear of the judgment in favor of International Fidelity Insurance Company against Charla Durham, a/k/a Charla Holsomback. In all other respects, the judgment granted the relief MERS prayed for in its intervention.

CONCLUSION

The postnuptial agreement between the Durhams clearly evidenced intent to convey Charla's interest in the property to David. When International Fidelity sought to provoke an annulment of the agreement, it was required to file a notice of lis pendens ; were the annulment granted, the judgment made executory in Louisiana would encumber the property. The law of registry requires that such a notice be filed. No exception is allowed for those who have actual notice of the potential encumbrance. The trial court erred in not reserving the Mayos' claim for damages for wrongful seizure. We amend the judgment to provide that the Mayos own the property free and clear of the judgment in favor of International Fidelity Insurance Company against Charla Durham, a/k/a Charla Holsomback.

All costs of this proceeding are taxed to International Fidelity Insurance Company.

AFFIRMED AS AMENDED.

      Though it must be noted parenthetically that the article does allow for an oral transfer that is recognized by the transferor when interrogated under oath.

      The Mayos' brief consists solely of their "reservation" of the right to assert a claim for wrongful seizure. They offered no argument in support of this proposition. They cited no authority. Pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4), we could deem this assignment of error abandoned. Nevertheless, in the interests of justice, we will address this pursuant to La.Code Civ.P. art. 2164.

      MERS prayed in pertinent part, "That after due proceedings are had, judgment be entered in favor of Intervenor and against International Fidelity Insurance Company making the preliminary injunction permanent, declaring that International Fidelity Insurance has no rights in and to the Property, and revoking the Notice of Seizure issued on October 26, 2016[.]"


source: Caselaw Access Project

license: Public Domain

text:
    Ellis JACK, Jr. v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-176, CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Ellis Jack, Jr.

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, 2018 WL 6199877, the judgment of the trial court finding the damages alleged by Ellis Jack, Jr. were caused by the air release and/or slop oil is reversed, as are the damages in the amount of $27,700.00 awarded to Mr. Jack.

REVERSED AND RENDERED.

Pickett, J., concurs for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.

Pickett, J., concurs in part and dissents in part with written reasons.

A court of appeal will not set aside the findings of fact of a trial court unless it determines the trial court's finding were manifestly erroneous or clearly wrong. Stobart v. State, through DOTD , 617 So.2d 880 (La.1993). In reviewing the entire record, the appellate court must find that a reasonable factual basis does not exist for the trial court's finding and that the finding is clearly wrong (manifestly erroneous) in order to reverse a trial court finding based on factual determinations. Mart v. Hill , 505 So.2d 1120 (La.1987). When reviewing an issue of law, though, we review the record de novo to determine if the trial court's legal conclusions are correct, without deference to the trial court's findings. Foti v. Holliday , 09-93 (La. 10/30/09), 27 So.3d 813.

Causation

CITGO argues that nine plaintiffs failed to prove that their injuries were caused by exposure to either slop oil or the air release. In addition to specific arguments about each of the nine plaintiffs, CITGO re-urges the argument it made unsuccessfully in Bradford v. CITGO Petroleum Corp. , 17-296 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, writ denied , 18-272 (La. 5/11/18), 241 So.3d 314, namely that expert testimony is required to prove both general causation and specific causation in a toxic tort case. "General causation" refers to whether a toxic substance can cause a particular harm in the general population, while "specific causation" refers to whether the toxic substance caused a specific person's injury or condition. Knightv. Kirby Inland Marine, Inc. , 482 F.3d 347, 351 (5th Cir. 2007). This court rejected that argument. See Bradford , 237 So.3d at 659-660. The panel in Bradford found that while expert testimony is required to prove causation, it is sufficient that there is expert testimony to prove general causation and medical testimony to establish specific causation. I agree with that conclusion.

Dr. Barry Levy, a physician and epidemiologist, testified via deposition to establish general causation in this case, as he has done in numerous previous CITGO cases. Frank Parker, an industrial hygienist, also testified via deposition to establish general causation. Dr. Steve Springer, a family medicine doctor, testified as to the specific causation of each of the twenty-six plaintiffs in this case. This court went on in Bradford , though, to evaluate not only the medical testimony as to specific causation, but also the circumstances of the exposure as related by individual plaintiffs and evidence as to the spread of the oil slop from CITGO in the days following the release. Keeping in mind these principles, my review of the evidence provided in this case leads me to a different conclusion than the majority regarding five of the plaintiffs about whether these plaintiffs met their burden of proving specific causation.

The Louisiana Pigment Employees

Mr. Doucet, Ms. McZeal, Mr. Mumford, and Mr. Smith were employees of Louisiana Pigment Company when they claim they were exposed to chemicals released from CITGO. Louisiana Pigment is located to the northeast of the CITGO plant. To support their claim of exposure, these plaintiffs rely on Mr. Parker's opinion about the amount of hydrogen sulfide and sulfur dioxide released from CITGO's stacks, and a chart purporting to show the wind direction at the time of the thirteen-hour release, beginning at 3 a.m. on June 19, 2006. We note that the map and wind direction chart introduced in the record in this case, exhibit seven to Mr. Parker's deposition, has print so small as to be illegible. Further, Mr. Parker's testimony indicates that the map is color-coded, yet the copy introduced into the record before us is black and white. Thus, we can rely on Mr. Parker's testimony that the wind was generally calm on June 19, 2006, and when it did blow it went from the southeast to the northwest. Exhibit 8 to Mr. Parker's deposition shows the 911 calls made that day, with most of the calls made within a mile radius of CITGO and to the northwest of the facility. Mr. Parker testified that there were no calls from the northeast of CITGO. Mr. Parker also testified that employees of Firestone Polymers, a company directly across the street from CITGO, were exposed to the air release. See Albarado v. CITGO Petroleum Corp. , 17-823 (La.App. 3 Cir. 5/16/18), 247 So.3d 818, where the plaintiffs were employees of Firestone Polymers.

The plaintiffs' brief argues that a plaintiff in Bradford , Clara Espree, was east of Louisiana Pigment when she was found to have been exposed to the air release. The majority relies on this allegation in reaching its conclusion pertaining to causation. Ms. Espree's location is not in the trial court record before us, and because in issues of fact we are confined to the evidence entered in the record before us, the majority improperly considered her location in this appeal. The specific testimony of these four plaintiffs, and of Dr. Springer about each of these four plaintiffs, must be examined to determine if there is sufficient evidence in this record to support the judgment of the trial court.

Albert Doucet, Jr.

Mr. Doucet testified that he was an operator at Louisiana Pigment in June 2006. Mr. Doucet testified that he was on break and remembered a strong smell. He did not remember specifically what day his exposure occurred. He remembers his eyes burning and his throat burning. He claimed at the trial that he still had headaches that would come and go. While he testified that he saw his personal doctor for his symptoms, there were no records of this appointment and Mr. Doucet does not remember when this appointment occurred. Mr. Doucet did not see any oil or come in contact with any oil. Mr. Doucet did not receive any documented treatment for his injuries related to the exposure until he saw Dr. Springer on January 22, 2007.

Dr. Springer testified that Mr. Doucet suffered several days of eye pain, sore throat, nausea, and sinus irritation from exposure to chemicals, and approximately seven months of increased headaches related to exposure of either slop oil or hydrogen sulfide. Dr. Springer did not have an opinion on whether Mr. Doucet was exposed to slop oil or the air release.

The trial court found that Mr. Doucet was exposed to the air release. I find manifest error in that conclusion. There is no evidence in the record to show what day Mr. Doucet smelled the strong odor which allegedly caused his injuries. There is no contemporaneous record of Mr. Doucet seeking medical treatment for these injuries at the time he suffered them. There is no evidence he was actually at work on the day of the release. I would reverse the trial court's finding that Mr. Doucet's injuries are related to exposure to the air release from CITGO. I would also reverse the damages awarded to Mr. Doucet.

Debra McZeal

Ms. McZeal testified that she was at work at Louisiana Pigment on the day of the release. She was on a break outside when she noticed a strong smell. Her eyes started burning, her throat hurt, and she became nauseated. She retreated inside. She never saw any oil on the water or came in contact with oil. Dr. Springer treated Ms. McZeal for her injuries in August 2006. At the time of the trial, she had forgotten about her exposure in June 2006.

Dr. Springer testified that in his medical opinion, one to two days of nausea, sore throat, and eye burning, and nine months of headaches, sinus congestion, and pain related to sinus congestion were caused by Ms. McZeal's exposure to chemicals from CITGO. Dr. Springer testified that he did not know the details of Ms. McZeal's exposure, except that she was at Louisiana Pigment at the time.

While the evidence is paltry, the fact that Ms. McZeal testified that she was at Louisiana Pigment "on the day of the release" constitutes sufficient evidence for the trial court to determine that she was exposed on June 19, 2006. Thus, I concur with the majority that there is no manifest error in the trial court's conclusion that Ms. McZeal was exposed to the air release on June 19, 2006.

Tommy Mumford

Mr. Mumford testified that he was working at Louisiana Pigment on the day of the release. Mr. Mumford noticed a distinct smell, and he recalled his supervisor instructing him to make sure it was not emanating from their site. He suffered some nausea, a little eye irritation, and some sinus issues as a result of the exposure. He did not come in contact with any oil or see any oil. He admitted that he had sinus trouble before the exposure that was irritated by the exposure. He did not seek medical treatment for the symptoms related to his alleged exposure.

Dr. Springer testified that he believed Mr. Mumford suffered several days of nausea, nosebleeds, and other sinus issues and more than three months of headaches as a result of exposure to chemicals released by CITGO. He testified that he never examined Mr. Mumford, though he was around when Mr. Mumford went to his office for a Pulmonary Function Test. His opinion did not include the specific exposure, slop oil or air release, to which Mr. Mumford was exposed.

The trial court found that Mr. Mumford was exposed to the slop oil and the air release. I concur with the majority's conclusion it was manifestly erroneous for the trial court to conclude that Mr. Mumford was exposed to the slop oil. Nevertheless, I agree there is sufficient evidence to support the finding that he was exposed to the air release.

John Smith

Mr. Smith did not smell anything out of the ordinary on the day he claims he was exposed to the chemicals released from CITGO. He only came to believe he was exposed when it became a topic of conversation at the plant. At that point, he got concerned and contacted a law firm. He claimed to have no symptoms that lasted more than a few days. Nevertheless, Dr. Springer testified that, in addition to three days of diarrhea and one to two days of nosebleed and eye irritation, Mr. Smith suffered nine months of skin irritation as a result of exposure. Dr. Springer clarified that the skin irritation would only be caused by exposure to slop oil, not to the air release. Dr. Springer also testified that he does not know if Mr. Smith was exposed to the slop oil or to the air release.

I find manifest error in the trial court's conclusion that Mr. Smith was exposed to the air release or to slop oil. Mr. Smith, by his own admission, cannot recall his exposure. I concur with the majority that there is no evidence that he was exposed to slop oil. I would reverse the judgment of the trial court finding Mr. Smith's injuries were caused by CITGO, as well as the award of damages to Mr. Smith.

Leslie Mouton

I agree with the conclusion reached by the majority that evidence supports the trial court's finding that Ms. Mouton was exposed to the air release.

Yvonne Glasgo and Ricky Matthews

CITGO argues that there is no evidence that the slop oil from CITGO reached the 210 beach, which was 3.6 miles upriver from CITGO, by June 20, 2006. The plaintiffs argue that this court, in Bradford , affirmed a judgment finding that four attendees of the Richard family event were exposed to slop oil, and Ms. Glasgo and Mr. Matthews were at the same Richard family event. They argue the findings of fact in Bradford constitute sufficient proof of exposure in this case. I disagree.

The plaintiffs, through their brief, reference findings of fact in Bradford which they argue support the trial court's findings of causation in this case. Proof of a fact in one lawsuit does not constitute proof of a fact in a totally separate suit. This court is confined to a review of the record before us as to a review of causation. The plaintiff must provide proof in this record that harm suffered by the plaintiffs before us was caused by the named defendant. Causation cannot be presumed. While a factual issue may be common to two suits, a court's factual determination in a suit involving one person is not res judicata or binding in another suit involving a different party or parties. State, through Dept. of Highways , 215 So.2d 142 (La.App. 3 Cir. 1968), citing Knighten v. American Auto. Ins. Co. , 121 So.2d 344 (La.App. 1 Cir. 1960) ; see also La.R.S. 13:4231 ("a valid and final judgment is conclusive between the same parties").

According to Harvey Yee, an employee of CITGO who was on the internal team who investigated the events of June 19, 2006, the release of slop oil into the Indian Marais, a navigable channel that flows into the Calcasieu River and is adjacent to the CITGO facility, occurred between 4:45 a.m. and 5:00 p.m. on June 19, 2006. According to a timeline attached to the deposition of Darryl O'Bryant, despite efforts to contain the spill by deploying booms, the evidence in the record before us shows that the first time there was a report of slop oil in the Calcasieu River was at 7:50 p.m. on June 20, 2006. This was several hours after Ms. Glasgo and Mr. Matthews claim to have been exposed at the 210 beach. There is no credible evidence to suggest that the slop oil traveled 3.6 miles upriver to the 210 beach during the daytime hours. The slop oil had to travel upriver to reach the beach. The only evidence in the record before us is that it reached the river late on that same day. Notably, Mr. Parker, when asked in his deposition, testified that he had no opinion about whether the slop oil reached the 210 beach on June 20, 2006. In fact, the only evidence before us is that it was not possible for the slop oil to have reached the beach at the time the plaintiffs say they were there.

The plaintiffs point to no evidence that the slop oil reached that location except Dr. Springer's testimony that "The court in Bradford v. CITGO established that the Richards and Ms. Glasgo were at the 210 beach on June 20th and that the oil had reached that area by that time." Dr. Springer clearly solely relied on a court ruling in another case to conclude exposure, not any medical finding. This circular logic does not constitute proof of a tort. Unlike Angelina Richard in Bradford , there is no contemporaneous visit to the doctor to complain of symptoms. In fact, Ms. Glasgo went to the emergency room on June 22, 2006, complaining of boils on her skin, but did not make any mention of exposure to slop oil. Her first complaint of symptoms was when she saw Dr. Arimura in August 2006. Mr. Matthews first saw a physician for symptoms he alleged were related to the CITGO release of slop oil in September 2006. Mr. Matthews was also unclear on whether he was at the beach on June 19 or June 20. Mr. Matthews' records from Dr. Arimura's office state he was exposed to benzene a week after the June 19 or 20 exposure.

Given that there is no evidence in the record that the slop oil from CITGO reached the 210 beach by June 20, 2006, and in fact the evidence reflects it could not have, Yvonne Glasgo and Ricky Matthews failed to meet their burden of proving exposure to CITGO slop oil. I would reverse the judgment of the trial court to the contrary and the award of damages to Ms. Glasgo and Mr. Matthews.

Odelia Dowling

Ms. Dowling died before the trial of this matter, and before her deposition could be taken. The only evidence of her is exposure is her statement to Dr. Jason Morris on July 31, 2006, complaining of headaches, severe sinus congestion, severe post nasal drainage, a dry cough, and an upset stomach with intermittent bouts of diarrhea for five weeks. She told Dr. Morris that she delivered lunch to her daughter's fiancée on June 20, 2006. Dr. Springer, who did not examine Ms. Dowling, opined that her symptoms were related to exposure of chemicals from CITGO. The trial court found she was exposed to the air release from CITGO and that exposure caused her injuries. It is undisputed, however, that the air release ended on the afternoon of June 19, 2006. The air release had completely ceased twenty hours before she was at the plant. I would find that the trial court committed manifest error in finding Ms. Dowling was exposed to the air release and in awarding damages to Ms. Dowling.

Ellis Jack

I concur with the majority's conclusion that Mr. Jack failed to prove causation and with the reversal of the award of damages to Mr. Jack.

General damages for future injury

For the reasons assigned by the majority, I concur in the reversal of the award for general damages for fear of future injury to Leslie Mouton, Donald Mouton, Ebony Mouton Jack, John Thibodeaux, Tommy Mumford, Michael Colletta, and Ellis Jack. Because I find that Albert Doucet, John Smith, Ricky Matthews, and Yvonne Glasgo failed to prove exposure as outlined above, I would also reverse their awards for fear of future injury.

General damages for fear loss of enjoyment of life

In its third assignment of error, CITGO argues that the loss of enjoyment of life damages to twenty-four of the twenty-six plaintiffs are unsupported by the evidence. The awards for loss of enjoyment of life to Mr. L'Hoste and Mr. Lambright are not challenged in this assignment of error. CITGO argues that the testimony of the remaining plaintiffs does not show that the exposure to chemicals resulted in "detrimental alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formerly enjoyed." McGee v. A C and S, Inc. , 05-1036, p. 3 (La. 7/10/06), 933 So.2d 770, 774. In the plaintiffs' brief, they argue that these twenty-four plaintiffs testified about the symptoms that they suffered from as a result of their exposure to CITGO's release of chemicals, that they continued to live and work while suffering with these maladies, and that the trial court properly found they suffered a disruption in their normal quality of life. The plaintiffs also argue that it was wholly appropriate for the trial court to make general damage awards for both pain and suffering and loss of enjoyment of life, citing McGee . CITGO concedes that distinct general damage awards for 'pain and suffering' and 'loss of enjoyment of life' are appropriate, but only when there is sufficient proof to support each type of loss.

In McGee , 933 So.2d 770, 774-75, the supreme court recognized loss of enjoyment of life as an element of general damages, stating:

La. C.C. art. 2315 authorizes a tort victim to be compensated for the damage sustained as a result of the delict, including those for loss of enjoyment of life, if proven. Moreover, this court has clearly defined general damages to include loss of enjoyment of life. Consequently, loss of enjoyment of life is a compensable component of general damages under both La. C.C. art. 2315 and this court's existing definition of general damages. Therefore, the only remaining issue is whether loss of enjoyment of life may be separated from other elements of general damages, such as mental and physical pain and suffering, and whether that separation may be reflected by having a line for loss of enjoyment of life on a jury verdict form. See Joseph v. Broussard Rice Mill, Inc. , 00-0628, p. 1 (La.10/30/00), 772 So.2d 94, 106-107 (Victory, J., assigning additional reasons) (stating "this Court has never squarely addressed the issue of awarding hedonic damages for loss of enjoyment of life as a separate element of damages").
As established above, loss of enjoyment of life is a component of general damages and therefore loss of enjoyment of life is not separate and distinct from general damages. Nevertheless, general damages in Louisiana are routinely dissected. Courts commonly list different elements of general damages, including mental anguish and physical pain and suffering, both past and future, separately. In addition, general damages for permanent scarring and/or disfigurement are often listed separately. See, e.g., Joseph , 00-0628 at p. 17 (La.10/30/00), 772 So.2d at 106-107, n. 6 ; Degruise v. Houma Courier Newspaper Corp. , 95-1862, p. 9 (La.11/25/96), 683 So.2d 689, 694. Thus, allowing a separate award for loss of enjoyment of life would not offend the existing concept of general damages and would reflect the accepted method of listing elements of general damages separately.
Moreover, loss of enjoyment of life is conceptually distinct from other components of general damages, including pain and suffering. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.

This court, citing McGee , recently explained that a factfinder must consider the nature and severity of the injury to the plaintiff and the lifestyle he enjoyed prior to the injury when determining whether he sustained a loss of enjoyment of life. Minton v. GEICO Casualty Co. , 16-592 (La.App. 3 Cir. 3/8/17), 215 So.3d 290. The trial court, in its written reasons for judgment, stated that each of the plaintiffs "suffered an interruption of his normal quality of life."

This court awarded damages of $30,000.00 for loss of enjoyment of life to a plaintiff who, as a result of injuries suffered in a car accident, could not care for her aged mother, needed her son's help in doing household chores, and could no longer participate in activities she enjoyed, particularly dancing and running. Clement v. Citron , 13-63 (La.App. 6/19/13), 115 So.3d 1260. In Minton , 215 So.3d 290, this court awarded $75,000.00 for loss of enjoyment of life damages for a plaintiff who could no longer umpire or bowl as a result of his injuries, and whose activities with his grandchildren and at church were limited. In Stutes v. Greenwood Motor Lines, Inc. , 17-52, 17-567, 17-568 (La.App. 3 Cir. 11/22/17), 234 So.3d 75, this court affirmed an award of $6,000,000.00 for loss of enjoyment of life damages to a plaintiff rendered a paraplegic when a tractor-trailer crossed the center line and collided with his vehicle. Mr. Stutes introduced evidence that he needed assistance with his bodily functions, had little privacy, and he can no longer dress or feed himself. He also testified that he enjoyed hunting, fishing, gardening, and woodworking before the accident. He also expressed sadness that he would not be able to play with his expected grandchild as he would have had he not been injured. Each of the plaintiffs in these three cases introduced evidence to support the award of damages for loss of enjoyment of life.

In this case, there was testimony from each of the plaintiffs about their pain and suffering related to their exposure to chemicals released by CITGO, as outlined by the majority. The trial court granted damages for pain and suffering. We can find no evidence, testimonial or documentary, to show how any one of the plaintiffs suffered a detrimental change in their lifestyle. There was no evidence adduced that any plaintiff was unable to perform any task or enjoy any pleasure or any activity before June 19, 2006, that they could not perform after their exposure to the chemical released by CITGO. In fact, what evidence that was elicited from plaintiffs shows that they did not suffer any damages related to a loss of enjoyment of life. Several plaintiffs testified that they did not miss any work because of their exposure. Only three plaintiffs specifically testified about potential loss of enjoyment of life damages. Mr. Mumford testified under cross-examination that his exposure to slop oil fumes did not interfere with daily activities outside of work. Ms. Glasgo, whose damages we reverse because she failed to prove causation, testified under cross-examination that her symptoms did not prevent her from doing any hobbies or activities. This testimony does not support a finding that these two plaintiffs are entitled to damages for loss of enjoyment of life. Mr. Daigle, during redirect examination, testified that his headaches and sinus issues for one or two months had a major impact on his life, but he did not say how. Mr. Crewell, in a deposition taken before he died, stated that he missed one day of work because of a migraine headache approximately six weeks after the exposure. This testimony, given the lack of specific details about how either of these men's lives were affected, is insufficient to support an award for loss of enjoyment of life damages.

I would find that of those plaintiffs who proved exposure to either the CITGO release of slop oil or of hydrogen sulfide and sulfur dioxide, the evidence presented in this record supports the claims for pain and suffering awarded to the plaintiffs. However, I find those plaintiffs failed to prove entitlement to damages for loss of enjoyment of life, and the trial court erred in making an award for loss of enjoyment of life damages. Thus, I would reverse the following monetary awards: in docket number 18-169, to Mr. Bowling, $10,000.00; to Mr. Colletta, $5,000.00; to Mr. Crewell, $10,000.00; to Mr. Daigle, $3,500.00; to Mr. Forsyth, $3,000.00; to Mr. Judice, $5,000.00; to Mr. Martin, $4,000.00; to Mr. McCoy, $10,000.00; to Mr. Paggen, $5,000.00; to Mr. Spikes, $3,500.00; to Mr. Timpa, $10,000.00; to Mr. Young, $10,000.00; in docket number 18-170, to Mr. Mouton, $3,500.00; to Ms. Jack, $5,000.00; in docket number 18-173, to Ms. Mouton, $3,500.00; in docket number 18-174, to Mr. Thibodeaux, $5,000.00; and in docket number 18-179, to Ms. McZeal, $10,000.00 and to Mr. Mumford, $5,000.00.

CONCLUSION

As it relates to the plaintiffs in docket number 18-169, I concur that the judgment of the trial court awarding $10,000.00 to Michael Colletta for general damages for fear of developing disease should be reversed. I dissent from the majority opinion and would reverse the judgment of the trial court awarding $10,000.00 to Patrick Bowling, $5,000.00 to Mr. Colletta, $10,000.00 to Michael Crewell, $3,500.00 to Dustin Daigle, $3,000.00 to Zachary Forsyth, $5,000.00 to Chris Judice, $4,000.00 to Larry Martin, $10,000.00 to Richard McCoy, $5,000.00 to Robert Paggen, $3,500.00 to Corey Spikes, and $10,000.00 to Alton Young for general damages for loss of enjoyment of life. I would amend Mr. Timpa's damage award to $43,350.00. In all other respects, the I concur that judgment of the trial court in docket number 18-169 should be affirmed.

As it relates to the plaintiffs in docket number 18-170, I concur with the majority that the judgment of the trial court awarding $10,000.00 to Donald Mouton and $10,000.00 to Ebony Mouton Jack for general damages for fear of developing disease should be reversed. I dissent from the majority opinion and would reverse the judgment of the trial court awarding $3,500.00 to Mr. Mouton and $5,000.00 to Ms. Jack for general damages for loss of enjoyment of life. In all other respects, I concur that the judgment of the trial court in docket number 18-170 should be affirmed.

As it relates to the plaintiff in docket number 18-171, I dissent from the majority opinion and would reverse the judgment of the trial court finding the damages alleged by Odelia Dowling were caused by the release of hydrogen sulfide or sulfur dioxide into the air by CITGO and would reverse the damages in the amount of $13,200.00 awarded to Ms. Dowling.

As it relates to the plaintiff in docket number 18-172, I dissent from the majority opinion and would reverse the judgment of the trial court finding the damages alleged by Ricky Matthews were caused by exposure to slop oil released by CITGO and would reverse the damages in the amount of $45,732.00 awarded to Mr. Matthews.

As it relates to the plaintiff in docket number 18-173, I concur in the opinion of the majority that the judgment of the trial court finding Leslie Mouton's damages were caused by exposure to hydrogen sulfide and sulfur dioxide released into the air by CITGO. I agree that the judgment of the trial court awarding $10,000.00 to Ms. Mouton for fear of developing disease should be reversed. I dissent from the majority opinion and would reverse the judgment of the trial court awarding $3,500.00 to Ms. Mouton for general damages for loss of enjoyment of life. In all other respects, I agree that the judgment of the trial court should be affirmed.

As it relates to the plaintiff in docket number 18-174, I agree that the judgment of the trial court awarding $10,000.00 to John Thibodeaux for fear of developing disease should be reversed. I dissent from the majority opinion and would reverse the judgment of the trial court awarding $5,000.00 to Mr. Thibodeaux for general damages for loss of enjoyment of life. In all other respects, I agree that the judgment of the trial court should be affirmed.

As it relates to the plaintiff in docket number 18-175, I dissent from the majority opinion and would reverse the judgment of the trial court finding the damages alleged by Yvonne Glasgo were caused by exposure to slop oil released by CITGO and would reverse the damages in the amount of $23,925.00 awarded to Ms. Glasgo.

As it relates to the plaintiff in docket number 18-176, I agree with the majority that the judgment of the trial court finding the damages alleged by Ellis Jack, Jr. were caused by exposure to hydrogen sulfide or sulfur dioxide released into the air by CITGO should be reversed, as well as the damages in the amount of $27,700.00 awarded to Mr. Jack.

As it relates to the plaintiffs in docket number 18-179, I dissent from the majority and would reverse the judgment of the trial court finding the damages alleged by Albert Doucet, Jr. were caused by exposure to hydrogen sulfide or sulfur dioxide released into the air by CITGO and the damages in the amount of $35,450.00 awarded to Mr. Doucet. I dissent from the majority and would reverse the judgment of the trial court finding the damages alleged by John Smith were causes by exposure to the air release by CITGO or to slop oil released by CITGO and the damages in the amount of $45,459.00 awarded to Mr. Smith. I concur that the judgment of the trial court finding Debra McZeal's damages were caused by exposure to hydrogen sulfide and sulfur dioxide released into the air by CITGO should be affirmed. I dissent from the majority and would reverse the judgment of the trial court awarding $10,000.00 to Ms. McZeal for general damages for loss of enjoyment of life. I concur with the majority in affirming the judgment of the trial court finding Tommy Mumford's damages were caused by exposure to hydrogen sulfide and sulfur dioxide released into the air by CITGO but the trial court's finding that Mr. Mumford's damages were caused by exposure to slop oil released by CITGO should be reversed. I agree with the majority opinion that the judgment of the trial court awarding $10,000.00 to Mr. Mumford for general damages for fear of developing disease should be reversed. I dissent from the majority opinion and would reverse the judgment of the trial court awarding $5,000.00 to Mr. Mumford for general damages for loss of enjoyment of life. In all other respects, I would find the judgment of the trial court should be affirmed.


author: Judge Joy Cossich Lobrano

text:
    Antoinette RUSSELL v. FOREST ISLE, INC. and XYZ Insurance Company
    NO. 2018-CA-0602
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 5, 2018
    G. Karl Bernard, G. KARL BERNARD & ASSOCIATES, LLC, 1615 Poydras Street, Suite 101, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Kevin C. O'Bryon, Laura Leggette, O'BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Joy Cossich Lobrano

In this slip and fall case, plaintiff/appellant, Antoinette Russell ("Russell") appeals the district court's April 9, 2018 judgment granting a Motion for Summary Judgment in favor of Berk-Cohen Associates, LLC ("Berk-Cohen"). For the reasons set forth below, we affirm.

On July 18, 2014, Russell filed a petition for damages against defendants, Forest Isle, Inc. and XYZ Insurance Company, alleging that Russell sustained injuries after she slipped and fell on the walkway owned and operated by these defendants. On December 18, 2014, Russell filed a second amended petition for damages in which she named Berk-Cohen as a defendant.

Russell alleged that on July 19, 2013, she was injured while she was visiting her mother at her mother's apartment complex. As Russell approached her mother's apartment, she used a covered walkway that ran in front of her mother's apartment door. As she took the last few steps needed to reach her mother's door, the walkway cracked, splitting into a 3-4 inch wide gap running the length of the walkway. When the walkway cracked open, Russell's foot was caught in the gap and she fell to the ground sustaining injuries. Russell alleged that as a result of the fall, she has suffered significant injury to her left ankle that has persisted for several years, and that the accident was caused by the fault, negligence and/or want of care of the defendants.

On September 29, 2017, Berk-Cohen filed a motion for summary judgment, asserting that there was no genuine issue of material fact, as to whether the walkway was unreasonably dangerous and as to whether Berk-Cohen had any prior notice of the walkway's dangerous condition. The matter was heard on March 23, 2018. A judgment was signed on April 9, 2018, granting Berk-Cohen's motion for summary judgment and dismissing all claims of Russell in their entirety, with prejudice.

Although Russell presents a number of assignments of error in her appellate brief, the dispositive issue is whether there are genuine issues of material fact as to whether Berk-Cohen had notice of the defective condition of the walkway, precluding summary judgment.

A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents (pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions) show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art 966 (A)(3) and (4).

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

La. C.C.P. art. 966 (D)(1).

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of her pleading, but her response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If she does not so respond, summary judgment, if appropriate, shall be rendered against her. La. C.C.P. art 967 (B).

An appellate court's review of a summary judgment is de novo based on the evidence presented to the district court, using the same criteria used by the court in deciding whether summary judgment should be granted. Lewis v. Jazz Casino Co., L.L.C., 2017-0935, p. 5 (La. App. 4 Cir. 4/26/18), 245 So.3d 68, 72. "Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in the light of the substantive law applicable to" the case sub judice . Christakis v. Clipper Const., L.L.C., 2012-1638, pp. 3-4 (La. App. 1 Cir. 4/26/13), 117 So.3d 168, 170. The applicable substantive law in this case is set forth in Louisiana Civil Code articles 2317.1 and 2322.

An owner's premises liability for a vice or defect is rooted in La. C.C. arts. 2317 and 2322. Both articles impose strict liability "based on status as an owner or custodian rather than on personal fault." Pearson v. Delaune , 2010-0475, p. 5 (La. App. 4 Cir. 12/15/10), 54 So.3d 172, 175. " La.C.C. art. 2317 imposes liability on an individual as a custodian for damage caused by things in his custody." Id. "Under La.C.C. art. 2322, an owner is liable for damages to any person injured in an accident caused by the owner's neglect to repair the building or from a defect in its original construction." Id.

A plaintiff alleging negligence or strict liability of a building owner or custodian must prove the following elements to hold the owner of a building liable for the damages caused by the building's ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation. La. C.C. arts. 2317.1, 2322. If the plaintiff fails to prove any of the elements for a property owner to be found liable under the civil-code articles governing damage caused by ruin of building, the plaintiff's claim must fail. La. C.C. art. 2322.

Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Broussard v. State ex rel. Office of State Bldgs. , 2012-1238, p. 8 (La. 4/5/13), 113 So.3d 175, 182-83 ; Garrison v. Old Man River Esplanade, L.L.C. , 2013-0869, p. 5 (La. App. 4 Cir. 12/18/13), 133 So.3d 699, 701.

"Constructive notice is defined as 'the existence of facts which infer actual knowledge.' Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury." Gardner v. Louisiana Superdome, 2013-1548, p. 7 (La. App. 4 Cir. 5/7/14), 144 So.3d 1105, 1109 (quoting Maldonado v. Louisiana Superdome Comm'n , 95-2490, pp. 6-7 (La. App. 4 Cir. 1/22/97), 687 So.2d 1087, 1092 ).

In granting the motion for summary judgment, the district court found that Plaintiff failed to establish that Defendant had actual or constructive knowledge of the existence of an unreasonably dangerous condition. In its oral reasons, the district court stated:

But I don't have anything here, no prior photographs, no experts, there was nothing provided to me that would defeat this motion for summary judgment.
And I realize you are in a tenuous situation simply because you have a picture, don't know when it was taken. We know what happened at the time or around the time she stepped on it. But plaintiff, unfortunately, has failed to carry her burden on the summary judgment of providing factual support sufficient to create a genuine issue of material fact. Plaintiff relies on her own deposition and photographs taken shortly after the fall. However, she has failed to provide any evidence that the defendant should have known about a defective condition of the step and failed to act reasonably to cure that condition. I have no choice but to grant his motion for summary judgment.

A review of the record reveals that Russell failed to prove that the walkway was unreasonably dangerous or that Berk-Cohen knew or should have known of the allegedly defective condition of the walkway. No evidence was presented that Berk-Cohen had knowledge (actual or constructive) of the allegedly defective condition of the sidewalk before Russell fell.

In the case sub judice , Russell's testimony established that the crack in the sidewalk occurred contemporaneously with her fall, such that the custodian of the premises could not have had prior notice, and that she did not believe that Berk-Cohen could have prevented her accident. By Russell's own testimony, there was nothing Berk-Cohen could have done to prevent her accident, as the crack in the sidewalk and her fall simultaneously occurred, removing the possibility of constructive knowledge. Therefore, since the crack in the sidewalk occurred spontaneously with Russell's injury, there was no knowledge (either actual or constructive) of the alleged defect and no opportunity to prevent the injury. Thus, Berk-Cohen could not have had actual or constructive knowledge of the alleged defect.

Considering the law, evidence, and testimony presented in the case sub judice , we find that Russell failed to establish knowledge of the condition of the sidewalk and failed to produce factual support sufficient to establish that she could meet her burden of proof at trial. Russell has failed to provide any evidence that Berk-Cohen should have known about a defective condition of the walkway and failed to act reasonably to cure that condition. Accordingly, we conclude that summary judgment in favor of Berk-Cohen was appropriate.

For the above reasons, the April 9, 2018 judgment of the district court granting summary judgment in favor of Berk-Cohen is affirmed.

AFFIRMED

      Russell alleges that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is a genuine issue as to material fact regarding whether: (1) Berk-Cohen was negligent in failing to prevent or repair the defect in the subject sidewalk; (2) Berk-Cohen knew or, in the exercise of reasonable care, should have known of the vice or defect which caused Russell to fall; (3) the damage could have been prevented by the exercise of reasonable care on the part of Berk-Cohen; and (4) Berk-Cohen failed to exercise reasonable care.

      La. C.C. art. 2317.1 provides:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
      La. C.C. art. 2322 provides:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Christopher GRANADO
    18-485
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Allen Skinner, District Attorney, Terry Lambright, Assistant District Attorney, 30th Judicial District Court, Post Office Box 1188, Leesville, Louisiana 71446, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Stephen H. Shapiro, Attorney at Law, 700 Camp Street, New Orleans, Louisiana 70130, (504) 309-8442, COUNSEL FOR DEFENDANT/APPELLANT: Christopher Granado
    Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

Defendant Christopher Granado was indicted on June 2, 2016, as a principal to racketeering, a violation of La.R.S. 14:24 and 15:1353, for alleged offenses occurring from February 1, 2015 to March 9, 2016. On January 9, 2016, Defendant entered an open-ended plea of guilty to racketeering. The trial judge ordered a presentence investigation report (PSI) and set sentencing for February 6, 2018. At the sentencing hearing, the trial court reviewed Defendant's PSI and the State's sentencing memorandum. After taking into consideration the sentencing guidelines provided by La.Code Crim.P. art. 894, Defendant was sentenced to forty years at hard labor with credit for time served and fined $50,000.00 plus court costs. Defendant then filed a pro se motion for amendment of sentence and to withdraw plea agreement, which was denied by the trial court. Additionally, Defendant's counsel filed a motion to reconsider sentence, which was also denied by the trial court. Defendant now seeks review of his sentence and his motion to withdraw his plea, asserting two assignments of error. For the following reasons, we affirm Defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

This appeal arises out of Defendant's indictment and conviction on the charges of principal to racketeering, in violation of La.R.S. 14:24 and 15:1353. On January 27, 2016, Defendant and Ms. Hernandez-Quezada were arrested for selling methamphetamine in DeRidder, located in Beauregard Parish, Louisiana. On June 2, 2016, Defendant was indicted by a grand jury as a principal to racketeering, in violation of La.R.S. 14:24 and 15:1353 and conspiracy to distribute methamphetamine, a Schedule II Controlled Dangerous Substance, in violation of La.R.S. 40:967(A). Defendant was arraigned and pled not guilty to the above charges.

On January 9, 2018, Defendant entered an Alford plea to racketeering pursuant to a plea agreement. In return for Defendant's Alford plea, the State agreed to dismiss the charge of conspiracy to distribute a schedule II controlled dangerous substance, in violation of La.R.S. 40:967(A). The trial court accepted Defendant's plea and entered the plea agreement and waiver of constitutional rights forms into the record. On February 26, 2018, Defendant was sentenced to forty years at hard labor with credit for time served since the date of arrest and fined $50,000.00 plus court costs.

Defendant then filed a pro se motion for amendment of sentence and motion to withdraw plea agreement on March 19, 2018. Through counsel, Defendant filed a motion to reconsider sentence on March 20, 2018. Both motions were denied by the trial court on April 6, 2018. Defendant now appeals his sentence and the trial court's denial of his motion to withdraw his plea.

ASSIGNMENTS OF ERROR

1. The district court erred in denying Christopher Granado's Motion to Withdraw his Guilty Plea as not knowingly and voluntarily [sic] when Mr. Granado's counsel failed to properly and accurately communicate the State's plea offer to Mr. Granado: (1) by advising Mr. Granado that he would be sentenced to a prison term of 7-years; and (2) when Mr. Granado reasonably relied on his counsel's statement and pled guilty on the strength of counsel's advice.
2. The district court erred in imposing on [sic] a prison sentence of 40 years on Christopher Granado because this sentence was grossly excessive under the facts, circumstances, and sentencing factors.

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 there are no errors patent.

LAW AND DISCUSSION

Assignment of Error No. 1

In his first assigned error, Defendant contends the trial court erroneously denied his motion to withdraw his guilty plea. Defendant argues his guilty plea was not knowingly and voluntarily made because his counsel failed to properly and accurately communicate the State's plea offer. Specifically, Defendant alleges counsel advised him he would be sentenced to a prison term of seven years. Defendant alleges that he reasonably relied on counsel's statement and pled guilty on the strength of counsel's advice. He further contends that counsel was ineffective.

[A] guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly.

State v. Dixon , 449 So.2d 463, 464 (La.1984). See also State v. Filer , 99-626 (La.App. 3 Cir. 9/20/00), 771 So.2d 700, writ denied, 00-2918 (La. 9/21/01), 797 So.2d 63.

Our review of the record indicates that Defendant made the plea knowingly and voluntarily. Moreover, there is no indication that the State ever promised a specific sentence term, or that such information was ever communicated to Defendant. The record fails to show that Defendant ever at any time prior to the imposition of his sentence indicated his disagreement with any part of his plea agreement. In fact, the colloquy between Defendant and the trial court when he entered his plea at the January 9, 2018 hearing presents the opposite conclusion.

BY THE COURT:

Q. Sir, I have two forms in front of me. One's a Waiver of Constitutional Rights and enter a Plea of Guilty and Plea Agreement. Sir, have you had the opportunity to read and go over those?
A. Yeah.
Q. You understand them?
A. Yes, sir.
Q. If you had any questions your lawyer answer [sic] the questions?
A. Yes, sir.
Q. You sign [sic] them?
A. Yes, sir.
Q. Okay. Likewise, has anybody forced, threatened, coerced or promised you anything to get you to enter this plea today?
A. No, sir.
Q. Okay. Has anyone offered-other than what's been offered here in open court has anybody made a promise to you regarding the sentence that you'll receive?
A. No, sir.
Q. Are you pleading guilty of your own-is this plea of your own free will, sir?
A. Yes, sir.
....
Q. Okay. You also understand by entering this Alford Plea that you are-that this is because you think this is what's best for you to do, sir?
A. Yes, sir.

The State then presented an extensive factual basis for Defendant's Alford plea. The State claimed that it would be able to prove at trial that Defendant led an operation to distribute methamphetamine from February 1, 2015 to March 9, 2016. The operation consisted of a pattern of money laundering and a large-scale distribution of methamphetamine. Originating in the western United States, occasionally traveling through Shreveport, Louisiana, the enterprise was mainly operating in Vernon Parish, Louisiana, and surrounding areas. To facilitate this operation, Defendant and one of his associates, co-conspirator Nathan Wayne Robertson, would launder money from other criminal activity, which was evidenced by deposits into Defendant's bank account, and then used said proceeds to fund the acquisition and distribution of the methamphetamine. The methamphetamine was delivered to other associates and co-conspirators such as Nathan Wayne Robertson, Felisha Hernandez-Quezada, Carey Lynn White, Russel Wade Cole, and other unindicted co-conspirators. Once received by Defendant's associates, the methamphetamine would be further distributed in Vernon Parish and other surrounding areas.

In Dixon , 449 So.2d 463, the defendant told the trial court during the plea colloquy pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that he understood the possible penalties for his crimes, and he said he was promised nothing in return for his plea. He signed the guilty plea and waiver of rights forms and agreed his sentence would be imposed at a sentencing hearing following receipt of the PSI. Nevertheless, the defendant in Dixon said his attorney had told him those responses "were merely 'procedural' " and would not affect his plea agreement. When the trial court imposed the defendant's sentence, he immediately objected and appealed on the basis that the trial court did not order his guilty plea to be withdrawn. The Louisiana Supreme Court found that due to the lack of information in the record, an evidentiary hearing was needed to determine whether the sentence imposed conformed to the terms of his plea agreement. Dixon , 449 So.2d at 465.

However, in the instant matter, an evidentiary hearing is not necessary because the record indicates that Defendant never at any time prior to the imposition of his sentence indicated his disagreement with any part of his plea agreement. His written plea form indicated he was making a "straight up plea" with no sentencing cap or promised sentence. In return, the State agreed to dismiss a charge of conspiracy to distribute more than twenty-eight grams of a Schedule II controlled dangerous substance. Defendant also signed a "Waiver of Constitutional Rights and Plea of Guilty" form that stated:

I acknowledge that I am guilty of the offense charged and voluntarily waive such rights and enter a plea of guilty. I have not been promised anything and I have not been induced to plead guilty or sign this document by any threat, pressure, coercion, or force. My plea of guilty is made freely, voluntarily and intelligently.

The form further stated Defendant's attorney had explained the document to him, and Defendant was satisfied with his attorney's legal representation and the manner in which his case was handled. During the " Boykin colloquy" at the time of his plea, Defendant told the trial court he went to the eighth grade in school. He said he could read, write, and understand the English language. He had no mental illness and was not under the influence of any drugs, alcohol, or medication that would prevent his understanding of his plea. Further, he customarily worked in the oilfield. He understood that by entering an Alford plea he was waiving his rights as set out in Boykin , 395 U.S. 238, 89 S.Ct. 1709. He admitted to the trial court that he was satisfied with the information, advice, and representation his attorney had given him. Defendant also told the trial court he understood that the penalty for the crime of racketeering was imprisonment at hard labor for not more than fifty years and/or a fine of not more than $1,000,000. Neither Defendant, his counsel, nor the State ever mentioned a seven-year sentence, any capped sentence or sentencing promise as part of the plea agreement. Defendant filed no opposition to the State's "Sentencing Information and Memorandum of Law" filed on February 6, 2018, prior to his sentencing hearing on February 26, 2018. At the sentencing hearing, the trial judge again informed Defendant that the sentence for racketeering was "up to a million-dollar fine and or up to 50 years or both." Again, neither Defendant, his counsel or anyone else mentioned any agreement regarding a seven-year sentence, or any specific sentence.

Defendant had ample opportunity to state and explain his understanding of what his sentence would be to the trial court. Instead, he only stated an objection when the trial judge pronounced his sentence, and even then, he failed to assert any misunderstanding to the trial court about an anticipated sentence. Defendant has shown no evidence of any agreement to a lesser sentence or of his justifiable belief that he would receive a lesser sentence that would warrant granting Defendant's request for relief. Therefore, Defendant is not entitled to withdraw his guilty plea, and an evidentiary hearing is unnecessary. See Dixon , 449 So.2d 463.

[D]issatisfaction with the sentence received is not a permissible basis to withdraw a guilty plea, and the expectation of a lesser sentence does not render a guilty plea involuntary. It is only when misunderstandings regarding the sentence one will receive are induced by or attributed to representations of the prosecutor or trial judge which are not fulfilled, that grounds exist for the withdrawal of a guilty plea. Conversely, misunderstandings between a defendant and his defense counsel do not render a guilty plea involuntary.

State v. Johnson , 95-626, p. 6 (La.App. 3 Cir. 12/13/95), 666 So.2d 1137, 1141, writ denied , 96-156 (La. 4/19/96), 671 So.2d 925 (citations omitted).

Defendant also contends that his counsel was ineffective for advising him he would be sentenced to seven years in prison. A claim of ineffective assistance of counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted by the trial court. State In the Interestof A.B. , 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id. The record here does not contain such evidence. Defendant alleges his guilty plea was made in reliance on assertions or promises not found in the record. See State ex rel. Kenny v. State , 15-1864 (La. 12/16/16), 207 So.3d 1053 (per curiam). Accordingly, Defendant's claim of ineffective counsel is relegated to post-conviction proceedings.

Assignment of Error No. 2

Defendant contends his forty-year prison sentence is grossly excessive under the facts and circumstances of this case. Defendant further contends that the trial court abused its discretion in imposing such a sentence. The State argues Defendant waived his right to appeal his sentence when he signed his plea agreement. Alternatively, the State claims that the trial court did not abuse its discretion when imposing the sentence at issue on Defendant.

In reviewing the record, we find that Defendant's right to appeal his sentence was not waived. Although the plea documents contained a waiver of appeal of his sentence, at the sentencing hearing, the trial judge advised Defendant of his right to appeal or file for post-conviction relief. See State v. McAdory , 17-571 (La.App. 3 Cir. 1/4/18), 237 So.3d 539 (where this court found that although the defendant had waived his right to an appeal in his plea agreement, the trial court's instruction on that defendant's right to appeal allows his sentence to be reviewed on appeal). Therefore, we will review Defendant's excessive sentence claim.

This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] 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. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted). Louisiana Code of Criminal Procedure Article 881.4(D) provides, "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed."

We find that the trial judge reviewed and properly considered the sentencing guidelines provided in La.Code Crim.P. art. 894.1. Defendant was originally indicted for racketeering, in violation of La.R.S. 15:1353 and La.R.S. 14:24, and for conspiracy to distribute over twenty-eight grams of methamphetamine, in violation of La.R.S. 40:967(A). Defendant was exposed to a sentence of imprisonment at hard labor up to fifty years and/or a fine up to one million dollars.

Instead, he received a sentence of a term above the midrange but less than the maximum possible term. The fine imposed is only five percent of the maximum possible amount. Additionally, the State dismissed one count of conspiracy to distribute more than twenty-eight grams of a Schedule II controlled dangerous substance pursuant to La.R.S. 40:967(B)(1)(b) as part of the plea agreement. Defendant received a substantial benefit from his plea agreement because this charge would have exposed Defendant to an additional possible sentence of one to ten years and/or a fine of up to $50,000.

Defendant argues that because he was a first-time felony offender, he should be given an opportunity for rehabilitation. The trial court considered the presentence investigation, which indicated that Defendant was married with children, had a sixth-grade education level, and listed all his previous charges in New Mexico that were closed or dismissed, as well as pending charges in Beauregard Parish. Additionally, the trial court considered the unopposed sentencing memorandum submitted by the State. The State's memorandum alleged that the amount of methamphetamine involved in the criminal enterprise had a street value exceeding six million dollars, which equated to a volume that would furnish methamphetamine to as few as 225 users or to as many as 4,500 users, depending on the size of the dose. Additionally, the State alleged this case formally established a link back to the Sinaloa cartel.

At the sentencing hearing, the trial judge reviewed the sentencing guidelines provided by La.Code Crim.P. art. 894 and referenced Defendant's drug enterprise as very significant and sophisticated. The trial judge determined "clearly, the evidence would show that [Defendant] was the person running this massive drug distribution system within Vernon Parish and Beauregard Parish and was spreading out from there." The trial judge again noted Defendant "was the head and is the head of this racketeering offense here and it brought in a significant amount of drugs ... to our Parish and our community." The trial court found no substantial grounds to justify or excuse Defendant's criminal conduct. The trial judge stated that he believed that Defendant was unlikely to favorably respond to probationary treatment, he needed correctional treatment, and a lesser sentence would deprecate the seriousness of the offense. Further, the trial court judge asserted that an undue risk existed that Defendant would commit further crimes during any period of a probated or suspended sentence.

While Defendant objected to the forty-year sentence as "extremely harsh," he made no objection to the statements of the State or the trial judge's findings at the sentencing hearing. We find that the record fully supports the findings of the trial court, evidencing a massive enterprise to traffic methamphetamine in which Defendant played a significant and leadership role. A review of our jurisprudence considering similar crimes supports the imposition of lengthy sentences for involvement in this type of criminal activity. See State v. Nagi , 17-1257 (La.App. 1 Cir. 4/9/18), 2018 WL 1704253 (unpublished opinion); State v. McGuire , 50,074, 50,075 (La.App. 2 Cir. 9/30/15), 179 So.3d 632 ; State v. Casaday , 49,679 (La.App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 15-607 (La. 2/5/16), 186 So.3d 1162 ; State v. Sullivan , 51,180 (La.App. 2 Cir. 2/15/17), 216 So.3d 175 ; State v. Guyn , 16-1059 (La.App. 1 Cir. 4/12/17), 2017 WL 1376573, (unpublished opinion), writ denied , 17-1082 (La. 6/1/18), 243 So.3d 1062. Accordingly, we find that Defendant's forty-year sentence and fifty thousand dollar ($50,000.00) fine is not unconstitutionally excessive under the facts and circumstances of this case.

CONCLUSION

The trial court's denial of Defendant's motion to withdraw his guilty plea is affirmed. Defendant's sentence of forty years at hard labor, with credit for time served and a $50,000.00 fine plus court costs is not unconstitutionally excessive and is affirmed in its entirety.

AFFIRMED.

      Defendant entered a guilty plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which recognized a defendant's right to knowingly and voluntarily enter a plea of guilty and consent to the imposition of a prison sentence, even in the instance that the defendant denies or refuses to admit participation in some or all of the actions that constituted the crime.

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      See Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), (where the United States Supreme Court found that to establish that counsel was ineffective, a defendant must show that: (1) his trial counsel's performance fell below an objective standard of reasonableness; and (2) he suffered prejudice as a result.); also see State v. Washington , 491 So.2d 1337, 1339 (La.1986), (which adopted the Strickland test).

      In McAdory , 237 So.3d 539, this court reviewed Vernon Parish plea forms, where the State argued that the defendant waived his right to raise sentencing issues on appeal by signing the form. This court noted:
      [T]he question is whether the clause stating that Defendant waives his right to appeal his conviction and sentence should be upheld as valid. The State argues that because the supreme court found in State v. Bordelon , 07-525 (La. 10/16/09), 33 So.3d 842, that even a capital defendant sentenced to death may waive his right to appeal, the waiver should be considered valid so long as it was given knowingly and intelligently. We caution, however, that the Bordelon court also noted it was still required to review the defendant's capital sentence for excessiveness under La.Code Crim.P. art. 905.9. Although the excessiveness issue in Bordelon is not relevant in the instant matter, we note that the trial court instructed Defendant at sentencing that, "[y]ou have two years from the date this sentence becomes final to assert any claim for post conviction relief and you have 30 days in which to file an appeal." We will, therefore, address Defendant's appeal.
      Id. at 543.