text:
    Joycelyn MURPHY v. JEFFERSON HEALTH CARE CENTER LLC and Clarendon America Insurance Company.
    No. 09-CA-304.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      H. Edward Sherman, James E. Cazalot, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    G. Frederick Kelly, III, Attorney at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12Plaintiff, Joyeelyn Murphy, was employed by the Louisiana Department of Health and Hospitals as a surveyor to inspect nursing homes for state compliance. On April 11, 2005, Ms. Murphy was part of a team of approximately five inspectors who were assigned to inspect the Jefferson Healthcare Center, L.L.C. (“JHCC”). On that date, the inspectors arrived unannounced at JHCC and began their inspection. Ms. Murphy alleges that while she was walking in a hallway between patients’ rooms, she slipped on a greasy substance on the hallway floor and caught herself on the handrail, causing her to suffer injuries, particularly to her lower back and under her right knee.

On March 17, 2006, Ms. Murphy filed a Petition for Damages against JHCC and its insurer, Clarendon America Insurance Company (“Clarendon”), asserting that JHCC knew or should have known of the slippery substance on its floor but failed to take steps to warn visitors or remove the slippery substance. JHCC and Clarendon filed an Answer on April 12, 2006, generally denying the allegations in | sthe petition and asserting that JHCC had no notice or knowledge of any alleged slippery substance on its floor.

A jury trial began on July 28, 2008, and concluded on July 31, 2008. The jury rendered a verdict in favor of defendants, JHCC and Clarendon, finding that there was a foreign substance on the floor at JHCC on April 11, 2005, but that JHCC took reasonable steps to discover and correct any dangerous conditions on its premises. On August 6, 2008, the trial court signed a judgment making the jury’s verdict the judgment of the court and dismissing all of plaintiffs claims with prejudice. Thereafter, on August 19, 2008, defendants filed a Motion for Costs, which was granted after a hearing on October 27, 2008. The trial court rendered a judgment in favor of defendants and against plaintiff for $13,407.07 in costs. Plaintiff appeals.

LAW AND DISCUSSION

On appeal, Ms. Murphy contends that: The Trial Court erred in refusing to charge the jury with negligence and charging the jury with Louisiana Civil Code Article 2317.1 instead of the proper La. C.C. Art. 2315 negligence charge and corresponding jury interrogatory _for a slip and fall in a hospital/nursing home for the elderly and infirm.

Plaintiff claims that the trial court erred in refusing to charge the jury with negligence and in providing a misleading jury interrogatory which significantly affected the jury’s verdict, because the jury was not given the opportunity to determine if JHCC was negligent in allowing a foreign substance to be on its floor.

First, we note that plaintiff did not object to the jury charges at trial. The trial judge asked counsel for plaintiff and defendants, “Any objections to the jury charges themselves?” Plaintiffs counsel replied, “No, sir.”

|4It is well settled that a party may not assign as error the giving or failure to give a jury charge unless she timely objects to the charges. LSA-C.C.P. art. 1793(C); Hebert v. Old Republic Ins. Co., 01-355, p. 16 (La.App. 5 Cir. 1/29/02), 807 So.2d 1114, 1127. However, courts have held that where the jury instructions contain a “plain and fundamental” error, the contemporaneous objection requirement is relaxed and appellate review is not prohibited. Berg v. Zummo, 00-1699, p. 13 (La.4/25/01), 786 So.2d 708, 716, n. 5.

In the present case, we have reviewed the jury charges given by the trial court and we do not find any fundamental errors. Therefore, because plaintiff did not object to the giving or failure to give any jury charges at trial, she is precluded from making such a claim on appeal. Furthermore, even if we considered plaintiffs claim that the trial court erred in failing to give a negligence charge, we find no basis for this argument, because a simple review of the written jury charges or the transcript of the trial judge’s recitation of the charges reveals that the trial judge did, in fact, charge the jury with negligence., Accordingly, it unclear to this | fiCourt why plaintiff makes this assertion on appeal, and we find that plaintiff is not entitled to any relief on her claims regarding the jury charges.

Ms. Murphy further complains that the trial judge erred because jury interrogatory number two did not address the negligence issue, and the jury was instructed to return to the courtroom without answering further questions if the jury answered interrogatory number two in the affirmative. She further argues that the jury found that JHCC had adequate procedures to detect hazardous conditions on its premises but the jury was never asked whether JHCC had actually fulfilled those procedures or was negligent in allowing a foreign substance to be on its floor.

Jury interrogatory number one on the verdict form provides as follows:

Do you find that there was a foreign substance on the floor of the defendant, Jefferson Healthcare Center on April 11, 2005?

Ten of the twelve jurors replied, ‘Tes,” to jury interrogatory number one. The verdict form instructed the jurors to proceed to the next question if the answer to their first question was “Yes.”

Jury interrogatory number two provides as follows:

Did the defendant, Jefferson Healthcare Center, take reasonable steps to discover and correct any dangerous conditions on its premises?

Nine of the twelve jurors replied, “Yes,” to jury interrogatory number two. The verdict form instructed the jurors to have the foreperson sign and date the form and return it to the courtroom if their answer to this question was ‘Tes.” Accordingly, the jurors did not answer the remaining questions on the verdict form.

|fiThe record reveals that plaintiffs counsel made a timely objection to the wording of jury interrogatory number two. He asked the trial court to add an interrogatory or change interrogatory number two to read:

Was the defendant Jefferson Healthcare Center negligent in not discovering any foreign substance or slippery and greasy substance on its premises, which created an unreasonably dangerous condition?

The trial judge denied plaintiffs request and indicated that the wording of LSA-C.C. art. 2817.1 was used for interrogatory number two and would remain the language in interrogatory number two. We find no error in the trial court’s decision.

An appellate court will not set aside a trial judge’s framing of questions to be posed to the jury absent an abuse of discretion. Johnson v. First Nat. Bank of Shreveport, 00-870, p. 26 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, 53, writs denied, 01-2770, 01-2783 (La.1/4/02), 805 So.2d 212, 213. However, if the trial court submits a verdict form to the jury with misleading or confusing interrogatories, such interrogatories do not adequately set forth the issues to be decided by the jury and may constitute reversible error. State ex rel. Dept. of Transp. and Development v. Wade, 07-1385, p. 4 (La.App. 3 Cir. 5/28/08), 984 So.2d 918, 921, writ denied, 08-1896 (12/12/08), 997 So.2d 561.

In the present case, our review of the verdict form reveals that the interrogatories presented to the jury were not misleading or confusing. Rather, the interrogatory complained of, number two, accurately reflects the applicable law in light of the facts in this particular case, and there was no abuse of discretion in the trial court’s wording of this interrogatory. Although plaintiff contends that the jury found that JHCC had adequate procedures to detect hazardous conditions on its premises but the jury was never asked whether JHCC had actually fulfilled those procedures, our reading of this interrogatory shows otherwise. The interrogatory 17does not ask whether JHCC’s policies included reasonable steps to discover and correct any dangerous conditions, but rather it queries:

Did the defendant, Jefferson Healthcare Center, take reasonable steps to discover and correct any dangerous conditions on its premises? (Emphasis added.)

Furthermore, we note that in closing arguments, plaintiffs counsel reviewed interrogatory number two and some of the evidence pertaining to this interrogatory and stated in pertinent part:

The second question you’re going to be asked to decide was did the Defendant Jefferson Health Care take reasonable steps to discover and correct any dangerous conditions on its premises?
Is a slick, greasy area caused by a foreign substance creating a dangerous condition? These people say it did. The Jefferson Health care people said it did. If you’re walking in a nursing home and there’s a slick, greasy substance, that creates a dangerous condition.
Now, did they take reasonable steps? Well, they had a policy to inspect. But did they actually inspect it? Did they actually discover it and clean it up?
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
So, we believe that evidence indicates on Number 2, the answer to Number 2 is no, they didn’t have — they didn’t actually take reasonable steps that day to discover the greasy, slick area on the floor.

These comments by plaintiffs counsel suggest that he understood that the interrogatory was asking if JHCC actually took reasonable steps to discover the substance, not whether JHCC simply had a policy to inspect in place.

Considering the arguments of counsel and the applicable law, we find that this assignment of error is without merit.

DECREE

Based on our finding that the arguments set forth by plaintiff on appeal are without merit, we affirm the trial court’s August 6, 2008 judgment making the Injury's verdict a judgment of the court and dismissing plaintiffs claims. All costs of these proceedings are to be paid by plaintiff.

AFFIRMED.

EDWARDS, J., concurs.

EDWARDS, J., concurs.

_JjI concur in the result.

      . On October 26, 2007, the State of Louisiana, through the Office of the Governor, Division of Administration, Office of Risk Management and the Louisiana Department of Health and Hospitals filed a Petition for Intervention seeking reimbursement of worker’s compensation benefits paid to Ms. Murphy.

      . The trial judge read the following to the jury regarding negligence:
      The Louisiana Law in this regard provides:

        Every act whatsoever of man that causes damage to another obligates him by whose fault it happened to repair it. Damages may include loss of consortium, service and society.
      The word "fault" in this law means negligence.
      Negligence is defined as the lack of due diligence or care. In the legal sense, negligence means the failure of a party to use due care in a particular set of circumstances. In other words, negligence is the failure of a party to use the standard of care which an ordinary reasonable and prudent person would use under a similar set of circumstances. Basically, each of us has the duty not to injure or damage another as a result of our fault or negligence.
      A person can be at fault by an unreasonable act of commission or by omission. In other words, if a person fails to perform some act which a reasonably prudent person would perform, and such failure to act causes injury of any type to another, that failure or omission is negligence. In short, negligence is the failure to exercise reasonable care towards another person to whom a duty to exercise reasonable care is owed, and negligence includes omissions as well as commissions.
      The trial judge also charged the jury with the provisions of LSA-C.C. art. 2317.1 as follows:
      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.

      . We have not made a determination regarding whether or not this particular negligence charge was required. Rather, we simply note that a negligence charge was, in fact, given to the jury.

      . LSA-C.C.P. art. 1797(B) provides that nine of twelve jurors must concur to reach a verdict, unless the parties stipulate otherwise.

      . Although it is not listed in her assignments of error, plaintiff claims on appeal that the trial court should not have granted defendants’ Motion for Costs. However, because plaintiff does not brief this issue and considering our decision to affirm the trial court’s judgment making the jury's verdict a judgment of the court, we find no reason to grant plaintiff any relief regarding the Motion for Costs.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Anthony T. FONTENBERRY.
    No. 09-KA-127.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

[2This is a criminal proceeding in which the defendant/appellant Anthony T. Fon-tenberry seeks a Crosby appeal of his simple burglary guilty plea convictions and sentences and subsequent fourth felony finding and enhanced sentence. The defendant assigns as error the trial court’s denial of a motion for severance of offenses. For the reasons that follow, we affirm the defendant’s simple burglary convictions, simple burglary sentences, habitual offender finding, and enhanced simple burglary sentence.

PROCEDURAL HISTORY

On December 22, 2005, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant with five counts of simple burglary in violation of La. R.S. 14:62. The defendant pleaded not guilty at arraignment. | ¡¡Thereafter, the defendant filed a Motion for Severance of Offenses and a Motion for Daubert Hearing Concerning Admissibility of Fingerprint Evidence. The trial judge heard and denied the Motion for Severance of Offenses. The court additionally ruled that fingerprint evidence was admissible that day.

Counsel for the defendant orally advised the trial court of his intention to file an application for supervisory writs from the denial of the Motion for Severance of Offenses and the Motion for Daubert Hearing. No such writ was filed in this Court.

The defendant withdrew his guilty plea and entered a plea of guilty as charged. He reserved the right to challenge the trial court’s pretrial rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976). That same day, the trial court sentenced the defendant to a negotiated twelve year term of imprisonment at hard labor on each of the five simple burglary counts, to be served concurrently. The state thereafter filed a multiple offender bill of information as to count one of the bill of information to which the defendant had already pleaded guilty. In the multiple bill the state alleged the defendant was a fourth felony offender. The defendant stipulated that he had previously been convicted of the felonies set forth in the multiple offender bill of information. The trial court accepted the stipulation and determined that the defendant was a fourth felony offender. The trial court subsequently vacated its previous sentence as to count one on the first simple burglary charge and resen-tenced the defendant on that count to a negotiated term of | .^imprisonment at hard labor for thirty years without benefit of probation or suspension of sentence on that count. The trial court ordered that the thirty-year sentence be served concurrently with the remaining simple burglary charges. The defendant timely appealed.

FACTS

Because this case is before us on guilty pleas, the facts were gleaned from the bill of information, arrest reports, and probable cause affidavits. The bill of information alleges that the defendant committed five separate simple burglaries of five separate vehicles. In addition, the bill of information indicates that counts 1 and 3 occurred on or between August 10 and August 11, 2005, that counts 2 and 4 occurred on or about August 12, 2005, and that count 5 occurred on or between July 24 and July 30, 2005. The arrest reports and probable cause affidavits for each count are contained in the record. All of the arrest reports and probable cause affidavits indicate that the defendant either pried open a car window, smashed a car window, or cracked a windshield. Similarly, all of the arrest reports and probable cause affidavits indicate that the defendant either removed stereo equipment or ransacked his victims’ vehicles.

In the Motion for Severance of Offenses, the defendant contended that “the number of offenses charged would cause the trier of fact difficulty in distinguishing the evidence and applying the law intelligently to each offense.” At the hearing on the Motion for Severance of Offenses, defense counsel argued that the matter involved five separate incidents with different witnesses and different evidence. Defense counsel additionally contended that trying the offenses together would give the jury the impression that defendant “must have done something.” The prosecutor replied that four of the five offenses occurred between August 10 and August 12, 2005 and that the fifth offense occurred approximately three weeks |fiprior to the commission of the other offenses. The prosecutor contended that the modus operandi was identical in each of the burglaries and that the offenses should be tried together in the interest of judicial economy. The prosecutor additionally contended that the separate incidents consisted of “different witnesses ... different evidence” and that the state had ample evidence to convict the defendant on each simple burglary charge.

CROSBY PLEAS

In the instant case, the defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He now seeks appellate review of the trial court’s denial of the motion for severance of offenses. Ordinarily, when a defendant enters a guilty plea, he waives all pre-plea nonjurisdictional defects. State v. Torres, 281 So.2d 451 (La.1973). However, in State v. Crosby, supra, the Louisiana Supreme Court determined that the Louisiana courts of appeal may review assignments of error specifically reserved at the time a guilty plea is made and “where the trial court accepted the guilty plea so conditioned.” Id. at 588. The Crosby court only extended this ruling to those “assignments of error specifically reserved at the time of the plea of guilty.” Id.

Accordingly, we must first determine which adverse pre-trial rulings the defendant reserved for appellate review. The record contains a contemporaneous guilty plea constitutional waiver form signed by the defendant, the trial judge, and the defendant’s counsel. The form contains a handwritten notation initialed by the defendant which states “[djefendant will maintain his appeal of the Court’s pre-trial rulings under Crosby.” Thus, the waiver form stated that the defendant reserved his right to appeal the motion for severance of offenses and the motion for Dau-bert hearing.

IfiAt the hearing on the defendant’s guilty plea, defense counsel informed the court that he reviewed the guilty plea form with the defendant. He subsequently asked the court to accept the pleas under Crosby. Thereafter, the trial judge informed the defendant “you have the right to maintain the ruling under the Crosby case on the fingerprint pretrials that we talked about.” Considering the guilty plea form that was signed by all parties, it is apparent that the trial court’s use of the term “pretrials” encompassed both pretrial rulings.

We therefore conclude that the defendant presented a detailed specification of which adverse rulings he sought to preserve on appeal. Compare State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196, 1197 (per curiam) (“[ajbsent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of evidentia-ry rulings which ‘go to the heart of the prosecution’s case’ that the defendant would otherwise waive by entering an unqualified guilty plea.”).

We must next determine whether we may review the denial of a motion to sever after a Crosby plea. In Crosby, the supreme court noted:

Normally, the trial court will not accept a plea of guilty conditioned upon review of procedural irregularity occurring after the trial has commenced or eviden-tiary rulings therein which do not go to the heart of the prosecution’s case. Of this nature also, are pre-trial rulings which affect the conduct of the trial but which do not substantially relate to guilt, such as the denial of a continuance or of a severance.
Crosby, 338 So.2d at 591 (emphasis supplied).

Thus, the Crosby court cautioned that the denial of a motion for severance is not normally contemplated in a conditional Crosby plea. However, we note that at least one Louisiana court of appeal has considered the merits of a denial of a 17motion for severance under Crosby. In State v. Thomas, 28,790 (La.App. 2 Cir. 10/30/96), 688 So.2d 1272, writ denied, 96-2844 (La.4/25/97), 692 So.2d 1081, the defendant was charged with two counts of first-degree murder. In exchange for the state’s promise not to seek the death penalty, the defendant pleaded guilty to one count of first degree murder and one count of second degree murder. Thomas, 683 So.2d at 1274-75. The defendant reserved the right to challenge several pretrial rulings under Crosby, including a denial of a motion to sever. Id. at 1278. The defendant argued on appeal that the evidence on the two counts would confuse the jury and that the jury would most likely use evidence of one count to convict him on the other count. Id. at 1279. The Thomas court considered the merits of the trial court’s denial of the motion to sever. The court ultimately concluded that the defendant failed to show how he was prejudiced by the denial of the motion to sever, reasoning that the charges were triable by the same mode of trial and that the defendant did not demonstrate that he would not have pled guilty but for the denial of this motion. Id.

Persuaded by Thomas, we conclude that when a defendant conditions a Crosby plea upon a denial of a motion to sever, we may review the merits of the trial court’s ruling. Accordingly, we will consider the merits of the instant defendant’s motion to sever in an abundance of caution.

SEVERANCE OF OFFENSES

Appellant argues that the trial court’s failure to sever the five simple burglary charges from each other was prejudicial because all five incidents took place shortly before the passage of Hurricane Katrina over southeast Louisiana. The appellant asserts that the jurors would be inflamed by the occurrence of offenses during a disaster. In his brief, the appellant notes:

| ^People were and are very passionate about looting and stealing from anyone in Southeast Louisiana who had already been hit hard by a natural disaster. There is something particularly offensive about stealing from Katrina victims, especially five of them. The jury may very well have only looked to convict someone.

La. C. Cr. P. art. 493 permits the join-der of offenses if the offenses charged “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan” and the offenses are triable by the same mode of trial.

A defendant properly charged in the same indictment with two or more offenses pursuant to La. C. Cr. P. art. 493 may nonetheless move for a severance of the offenses under La. C. Cr. P. art. 495.1, which provides: “[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.”

In determining whether prejudice results from a joinder of offenses, the trial court must consider the following factors: whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition, and whether, considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Welch, 03-905 (La.App. 5 Cir. 11/25/03), 864 So.2d 204, 207-208, writ denied, 04-0171 (La.2/4/05), 893 So.2d 88 (citing State v. Washington, 386 So.2d 1368 (La.1980)).

A defendant alleging a prejudicial joinder of offenses has a heavy burden of proof. State v. Welch, 864 So.2d at 208. Motions to sever under La. C. Cr. P. art. 495.1 are within the sound discretion of the trial court and its ruling will not be | ¡¡disturbed on appeal absent an abuse of discretion. Id. Factual, rather than con-clusory, allegations are required when the defendant alleges prejudicial joinder of offenses on a motion to sever. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1019.

The fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So.2d 126 (La.1973), in a separate trial on the joined offense, does not prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Deruise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1232 (citing State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So.2d 1012, 1019). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Id.

In Thomas, supra, as in the instant case, the defendant failed to specify how the denial of the motion to sever prejudiced him in light of his guilty plea. As is true in the instant case, the Thomas defendant did “not assert[ ] that he would not have pled guilty but for the denial of this motion nor is there any such suggestion.” Id. The Thomas court concluded that because the defendant had not shown how he was prejudiced by the denial of the motion even if that denial was an error, there was no merit to the assignment. Id. Even if we assume that but for the denial of the motion to sever the offenses, the defendant would have gone to trial on each of them separately, we otherwise find he has failed to show that he was prejudiced. In this regard, we consider the following jury trial cases, which offer guidance:

In State v. Burks, 04-1435 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176, the defendant was convicted of six sexual offenses involving three juvenile victims. On appeal, the defendant argued that he was prejudiced by having all six counts tried at the same time and that thejj¡jury found him guilty based on the volume of charges alone. This Court determined that:

In the present case, the evidence shows that the multiple counts, although perpetrated upon different victims and at different times, occurred under strikingly similar circumstances. Consequently, we find that the counts are of the same or similar character as contemplated by La.C.Cr.P. art. 493 and were, therefore, properly charged in the same bill of indictment. We further fail to find that defendant has failed to meet the heavy burden of proving he was prejudiced by the joinder of these offenses.
The evidence presented by the State through the testimony of the victims was clear and consistent, and it is highly improbable that the jury was confused by the multiple counts involving the three victims.

Burks, 905 So.2d at 400.

In State v. Christy, 593 So.2d 1322 (La. App. 1 Cir.1991), the defendant was charged with six counts of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. He was subsequently convicted of five counts of simple burglary of an inhabited dwelling by a jury. On appeal, the defendant contended that the trial court erred in denying his motion to quash for misjoinder, or, alternatively, motion to sever offenses. Christy, 598 So.2d at 1324. The First Circuit disagreed, reasoning:

The facts of these offenses were relatively simple and were similar. All five burglaries involved inhabited dwellings on El Scott Avenue. For each offense, the State introduced the testimony of the particular sheriffs deputy who investigated that offense and recovered fingerprints therefrom ... Finally, the State presented the testimony of the fingerprint expert, Martha Hilburn, who identified the defendant’s fingerprints in connection with each particular offense.
Considering the relatively simple facts of these very similar offenses, the manner in which the evidence was presented to the jury, and the trial court’s instructions to the jury, we conclude that the defendant was not prejudiced by the joinder of these offenses in a single bill of information. Accordingly, the trial court did not err in denying the defendant’s motion to quash for misjoinder, or, alternatively, motion to sever offenses.
Id. at 1325.

Inin the instant case, the offenses were properly joined pursuant to La. C. Cr. P. art. 493. Although the crimes involved five different victims, the defendant perpetrated the offenses each victim within a relatively short time span. In each offense, the defendant burglarized or attempted to burglarize a vehicle with the ostensible purpose of removing stereo equipment from the vehicle. Each offense took place within the corporate limits of Kenner, Louisiana. Further, as the defendant was charged with simple burglary for all offenses, the counts were triable by the same mode of trial pursuant to La. C. Cr. P. art. 782(A).

Similarly, the facts of the charged offenses were relatively simple and uncomplicated. The charged offenses were not complicated in nature, nor were the allegations such that a jury would not have been able to segregate the various offenses. Four of the five offenses occurred within a three day period. The fifth offense occurred approximately three weeks earlier. All five offenses involved the vehicle burglaries. The burglaries involved five different victims and five different vehicles, however, the offenses were perpetrated under similar circumstances. In the memorandum opposing the Motion for Severance of Offenses, the state explained that two of the five offenses occurred “next to each other at 1100 Industry Road and at 1020 Industry Road, respectively, on and within adjacent properties.” The state additionally noted that two offenses occurred at the Butch Dewey gymnasium and playground parking lot located at 1710 10th Street on the same date and time. At the hearing on the Motion for Severance of Offenses, the prosecutor indicated that in each of the burglaries, vehicle windows were pried open or smashed, and that the defendant’s fingerprints were found inside all of the vehicles. The defendant’s argument that he would have been prejudiced because a jury would have believed he was stealing from Hurricane Katrina victims is wholly without merit; all five offenses took place before Hurricane Katrina’s passage over | ^Louisiana. The joinder of the charges would not have prevented the defendant from putting on a sound defense at trial. Moreover, the charged offenses were not crimes of violence, and it is therefore unlikely that a jury would have been inflamed by the inclusion of all five counts.

The offenses shared enough similarities to make joinder permissible and the facts of each offense are not identical and are easily distinguishable from each other. We therefore find that the defendant did not overcome his heavy burden of proving prejudicial joinder and that the trial court did not abuse its discretion in denying the defendant’s Motion for Severance of Offenses.

Accordingly, this assignment of error has no merit.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920, State v. Oliveaux, 812 So.2d 387 (La.1975), and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

We discern one error patent. The trial court imposed an illegally lenient multiple offender sentence. La. R.S. 15:529.1(A)(l)(c) provides as follows:

(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(11) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence,
(emphasis added)

La. R.S. 14:62 provides, in pertinent part:

| ^Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.

(emphasis added)

The multiple offender bill of information alleges that the defendant had two prior convictions for simple burglary and one prior conviction for attempted simple burglary. The defendant stipulated that he had previously been convicted of the felonies as stated in the multiple bill. Thus, the fourth felony and two of the previous felonies were punishable by imprisonment for twelve years or more. The defendant should have accordingly received a mandatory life sentence of imprisonment without benefit of parole, probation, or suspension of sentence under La. R.S. 15:529.1(A)(l)(c)(ii).

The state did not object to the illegally lenient sentence at the time of sentencing, nor does it do so on appeal. Under La. C. Cr. P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. This authority is permissive rather than mandatory. State v. Quinones, 03-907, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830. A defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So.2d 790, 797. However, “[a]n appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in dispositions of the cases favorable to the defendant.” State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136, 1136 (citing State v. Guzman, 99-1528, p. 6 (La.5/16/00), 769 So.2d 1158, 1162). The purpose of the Campbell edict is to avoid vacating the guilty plea and providing the defendant with a remedy that he did not request, thus the edict applies to an error patent review of guilty pleas. See State v. Robinson, 06-1406 (La.12/8/06), 943 So.2d 371, 372 (per curiam) (“[a] guilty plea colloquy is not part of the record for purposes of error patent review.”).

In State v. Massey, 02-872 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, the defendant was found guilty as charged by a jury of one count of possession of cocaine, a violation of La. R.S. 40:967(C). The state subsequently filed a multiple offender bill of information, wherein it alleged the defendant to be a fourth felony offender. Following a hearing, the defendant admitted the allegations of the multiple bill in exchange for a negotiated multiple offender sentence of fifteen years of imprisonment. Massey, 841 So.2d at 863. The trial judge vacated the defendant’s original sentence and sentenced defendant as a multiple offender to imprisonment for 15 years at hard labor with credit for time served but without benefit of probation or suspension of sentence. Id. On appeal, this Court noted that the “defendant was subject to a mandatory life sentence without benefit of parole, probation or suspension of sentence under La. R.S. 15:529.1(A)(l)(c)(ii)” because he had previously been convicted of a “crime of violence” under La. R.S. 14:2(B). Id. at 865. However, we reasoned “[following [the Campbell] edict, we will not disturb defendant’s sentence. Accordingly, we affirm defendant’s conviction and sentence.” Id.

In the instant case, as in Massey, the defendant was subject to a mandatory life sentence as a fourth felony offender pursuant to La. R.S. 15:529.1(A)(l)(c)(ii). The defendant bargained for and received a negotiated sentence that was not legally available to him, as in Massey. Neither the defendant nor the state complains about the illegally lenient sentence on appeal. We recognize that the Massey defendant was found guilty as charged after a jury trial, while the defendant in the instant case pleaded guilty to five counts of simple burglary. We also recognize that this Court has arrived at different | ^conclusions when considering the Campbell prohibition in its sentencing error patent review where a negotiated illegally lenient sentence is based on a plea bargain. See, e.g., State v. Grant, 04-341, pp. 4-5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (applying the Campbell prohibition to “not disturb [the defendant’s] sentences.”); State v. Thomas, 07-940, p. 6 (La.App. 5 Cir. 3/25/08), 983 So.2d 943, 946 (same); State v. Smith, 08-528 (La.App. 5 Cir. 1/13/09), 1 So.3d 802, 806 (“we exercise our discretion to notice the illegally lenient sentence” despite the Campbell prohibition). In the instant case, we will refrain from exercising our authority under La. C. Cr. P. art. 882 to correct an illegally lenient sentence.

CONCLUSION AND DECREE

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. We additionally affirm the trial court’s habitual offender finding and enhanced simple burglary sentence.

SIMPLE BURGLARY CONVICTIONS AND SENTENCES AFFIRMED; HABITUAL OFFENDER FINDING AND SENTENCE AFFIRMED.

      . See State v. Crosby, 338 So.2d 584 (La.1976).

      . See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The trial judge had originally granted the defendant a continuance of trial, over the state's objection, in order for the defendant to seek writs. Thereafter, in November, the trial judge denied the defendant's request for an extension. Under Rule 2-1.14 of the Uniform Rules-Courts of Appeal, any record lodged in this Court may be used, without necessity of duplication, in any other case on appeal or on writ. State v. Bradley, 02-1130 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, 118. Our records reveal that in December, in State v. Fontenberry, 06-KM-914 (La.App. 5 Cir. 12/4/06) (unpublished motion to stay), diis Court denied the defendant's motion for a stay of trial and a motion for extension of time in which to file a supervisory writ in this Court.

      . According to the commitment and minute entry of December 5, 2006, the trial judge denied the defendant's oral motions to exclude evidence and testimony as well as motions for continuance and stay of trial. The record before this Court, however, only contains the subsequent guilty plea and sentencing transcripts.


author: WALTER J. ROTHSCHILD, Judge. WICKER J.,

text:
    Deidre MORALES, Wife of and Brian Morales v. BOOMTOWN, L.L.C. OF DELAWARE, Louisiana-I Gaming, a Louisiana Partnership in Commendam, Doing Business as Boomtown Casino New Orleans and Boomtown Casino Westbank, and Stewart Thompson, and Ronette M. Thompson.
    No. 09-CA-194.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Peter M. Meisner, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.
    Daryl A. Higgins, Gevin P. Grisbaum, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| gPIaintiffs, Deidre and Brian Morales, appeal a summary judgment rendered in favor of one of the defendants, Louisiana-I Gaming, a Louisiana Partnership in Com-mendam d/b/a Boomtown Casino (hereinafter referred to as “Boomtown”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from an incident that occurred at Boomtown Casino in Harvey, Louisiana on July 8, 2005. Deidre Morales was playing a nickel slot machine while Ronette Thompson, her mother, and her father, Stewart Thompson, were playing slot machines nearby. According to the record, Ms. Thompson or her boyfriend had previously been playing the machine that Ms. Morales had begun to play. While playing this slot machine, Ms. Morales won a jackpot. While Ms. Morales waited for an attendant to arrive to pay her winnings, a verbal argument began between Ms. Morales and Ms. Thompson. Aja Washington, who was | ^working at Boomtown as a slot machine attendant, arrived to pay Ms. Morales. Ms. Morales claims that she asked Ms. Washington to call security or to tell Ms. Thompson “to shut up,” but Ms. Washington moved Ms. Morales to the aisle and told her to ignore Ms. Thompson. Then, a physical altercation occurred between Ms. Morales and Ms. Thompson, and Stewart Thompson became involved in the altercation as well. Security officers arrived quickly, the fight was immediately stopped, and the police were called to the scene.

On June 20, 2006, Ms. Morales and her husband filed a Petition for Damages against Boomtown, Ronette Thompson, and Stewart Thompson, in which they assert that Boomtown is liable for damages sustained by Ms. Morales in this incident because its employee, Ms. Washington, did not prevent the confrontation or accurately assess the risk to Ms. Morales. In the petition, plaintiffs further contend that Boomtown is liable because its surveillance and security employees did not timely and effectively prevent the physical confrontation.

On June 18, 2008, Boomtown filed a Motion for Summary Judgment asserting that it should be dismissed from this lawsuit, because: 1) it had no legal duty to prevent unexpected and spontaneous criminal acts of third parties, and 2) it fulfilled its duty of reasonable care by providing adequate, trained security officers to protect its customers. Plaintiffs opposed the motion, arguing that there are several genuine issues of material fact, that the confrontation was reasonably foreseeable, and that Ms. Washington should have called security when Ms. Morales allegedly asked her to do so.

After a hearing on October 28, 2008, the trial judge took the matter under advisement in order to allow him the opportunity to view a videotape of the | incident. On November 5, 2008, the trial judge granted Boomtown’s motion and rendered sum-maty judgment in its favor. It is from this judgment that plaintiffs appeal.

LAW AND DISCUSSION

On appeal, plaintiffs argue that the trial court erred in granting Boomtown’s Motion for Summary Judgment. Plaintiffs claim that there are several genuine issues of material fact that preclude summary judgment, such as whether the Thomp-sons’ conduct in assaulting Ms. Morales was reasonably foreseeable, whether Boomtown’s employee, Ms. Washington, should have recognized the danger in the Thompsons’ abusive language and negligently failed to immediately call for security, and whether Boomtown’s employees had adequate training or notice in order to prevent the assault of Ms. Morales.

Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s consideration of whether or not summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); Bua v. Dressel, 96-79, p. 3 (La.App. 5 Cir. 5/28/96), 675 So.2d 1191, 1192, writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348. LSA-C.C.P. art. 966(B) provides that summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Input/Output, Inc. v. Wilson Greatbatch, Inc., 07-570, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 109, 112, writ denied, 08-397 (La.4/18/08), 978 So.2d 350.

IfiThe party bringing a motion for summary judgment bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. LSA-C.C.P. art. 966(C)(2). The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issue of material fact exists. Underwood v. Best Western Westbank, Inc., 04-243, p. 5 (La.App. 5 Cir. 8/31/04), 881 So.2d 1271, 1274. Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

In the present case, at the hearing on the Motion for Summary Judgment and on appeal, plaintiffs do not claim that security officers did not arrive timely after being notified of the altercation between the parties. Plaintiffs admit that security officers stopped the fight as soon as they arrived, and they state in their brief on appeal that the response time of the security officers suggests proper training. However, plaintiffs assert that proper procedure for Ms. Washington and other employees, when faced with customer hostility, was to alert security immediately and Ms. Washington failed to do so in this case. Boomtown responds that the alleged criminal conduct of the Thompsons was not foreseeable, that Boomtown provided adequate, trained security officers to protect its customers, and they acted appropriately under the circumstances.

A business proprietor’s duty to his patrons includes that the proprietor must refrain from conduct likely to cause injury to a guest and he must maintain the premises free from unreasonable risks of harm or warn patrons of known dangers. Fredericks v. Daiquiris and Creams of Mandeville, L.L.C., 04-567, p. 4 (La.App. 1 Cir. 3/24/05), 906 So.2d 636, 640, writ denied, 05-1047 (La.6/17/05), 904 So.2d 706. Generally, there is no duty to protect others from the criminal acts of third parties. Taylor v. Stewart, 95-1743 (La.App. 1 Cir. 4/4/96), 672 So.2d 302, 307. Business owners are not insurers of their patrons’ safety, but they do have a duty to implement reasonable measures to protect patrons from criminal acts when those acts are reasonably foreseeable. Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 5 (La.11/30/99), 752 So.2d 762, 766.

The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determines the existence and extent of the defendant’s duty. Bezel v, Original Library Joe’s, Inc., 01-1586, p. 9 (La.App. 1 Cir. 11/8/02), 838 So.2d 796, 801. The plaintiff has the burden of establishing the duty defendant owed under the circumstances. Id.

In the present case, it is undisputed that the physical altercation occurred between patrons of the casino and that no Boomtown employee was involved. Although plaintiffs assert that Boomtown had a duty to prevent the physical altercation, Boomtown only had a duty to protect its patrons from criminal acts that were reasonably foreseeable. The exhibits and the videotape reveal that only two to three minutes elapsed from the time Ms. Washington arrived to pay Ms. Morales and the time the physical fight began. Plaintiffs claim that Ms. Washington should have called security when she heard Ms. Thompson and Ms. Morales arguing or when Ms. Morales asked her to call security. However, Ms. Morales testified in her deposition that she asked Ms. Washington to call security or to tell Ms. Thompson “to shut up.” Thereafter, Ms. Morales stated that Ms. Washington moved her into the aisle and told her not to worry about Ms. Thompson. Ms. Morales testified that she had no idea that Ms. Thompson was going to physically touch her until she was “nose to nose” with her and Ms. Thompson pushed her.

|7In their depositions, Ronette and Stewart Thompson testified that they went to Boomtown often before the incident and they had never had any trouble or been in any other fights or altercations there. There was no evidence to the contrary. In Aja Washington’s affidavit, she stated that she heard derogatory comments being exchanged between Ms. Morales and Ms. Thompson for less than two minutes before the physical altercation occurred, and she stated that she had no reason to believe or anticipate that these individuals would start a physical altercation. Ms. Washington noted that Boomtown security officers were close to the location of the incident and they arrived within seconds. The parties do not dispute that security officers arrived quickly after the incident became physical.

After a careful de novo review, we find that Boomtown has shown by the undisputed evidence that it did not have a duty to protect Ms. Morales from the physical altercation, because the evidence does not show that this incident was reasonably foreseeable. The evidence shows that the altercation occurred within minutes after the parties began exchanging words and was quickly stopped by security officers. There was no evidence indicating that Boomtown knew of any danger to Ms. Morales and failed to warn her. There was also no evidence that the Thompsons had previously been involved in any physical fights at Boomtown, and even Ms. Morales stated that she had no idea that a physical confrontation would result from their argument until it occurred.

In its Motion for Summary Judgment and supporting exhibits, Boomtown presented a prima facie case that it did not owe a duty to protect Ms. Morales from a physical altercation, because it was not reasonably foreseeable. Ms. Morales did not present sufficient evidence in opposition to show that the altercation was reasonably foreseeable and that Boomtown had a duty to protect her from the altercation with the Thompsons. Therefore, Ms. Morales did not show that she can |Rmeet her evidentiary burden of proof at trial or that issues of material fact preclude summary judgment.

We have considered all of plaintiffs’ arguments on appeal and all of its claims of issues of material fact. However, after our de novo review of the Motion for Summary Judgment, Opposition, and exhibits, including the videotape of the incident, and considering the applicable law, we conclude that the trial judge was correct when he granted Boomtown’s Motion for Summary Judgment.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of Boomtown.

AFFIRMED.

WICKER J.,

dissents with reasons.

hi respectfully dissent.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049, 1050. The majority is correct in its assertion that a business owner has a duty to implement reasonable measures to protect patrons from criminal acts “when those acts are foreseeable.” See, e.g., Posecai v. Wal-Mart Stores, Inc., 99-1222, (La.11/30/99), 752 So.2d 762, 766; Banks v. Hyatt Corp., 722 F.2d 214, 220 (5th Cir.1984). The majority concludes that Boomtown did not owe a duty to protect Ms. Morales from a physical altercation because a physical altercation between Ms. Morales and Ms. Thompson was not reasonably foreseeable.

In my opinion, the factual inferences drawn from Aja Washington’s testimony should preclude summary judgment for Boomtown. Ms. Washington, a Boomtown security guard, testified during her deposition that she heard “various remarks ... derogatory in nature” exchanged between EMs. Thompson and Ms. Morales. Ms. Washington also admitted that Ms. Morales asked her to summon security and that she did not do so immediately. Approximately two minutes later, Ms. Morales and Ms. Thompson became engaged in a physical altercation. However, after the altercation began, it took mere seconds for additional Boomtown security officers to respond. In addition, Ronald Robin, Boomtown’s Director of Security, testified that security officers are instructed to call security should “anything out of the ordinary [or] anything unusual” occur.

When an owner or employee of a business has or should have knowledge of a third person’s intended injurious conduct that is about to occur and which is within the power of the owner or employees to protect against, a duty to protect a patron exists. Banks v. Hyatt Corp., 722 F.2d 214, 220 (5th Cir.1984); Rodnguez v. New Orleans Public Service, Inc., 400 So.2d 884, 887-88 (La.1981). A reasonable fact-finder could have concluded that Boom-town should have known that a physical altercation was about to occur between Ms. Thompson and Ms. Morales at the time Ms. Washington heard Ms. Thompson’s derogatory remarks. I therefore believe that a genuine issue of material fact exists as to whether the confrontation between Ms. Morales and Ms. Thompson was an unforeseeable and unanticipated occurrence.

In addition, a reasonable factfinder could have concluded that Boomtown breached its duty to Ms. Morales because Ms. Washington failed to summon security officers in a timely manner. I am of the opinion that a genuine issue of material fact exists as to whether Ms. Thompson’s delay in summoning security officers constitutes a breach of Boomtown’s duty to Ms. Morales. This is especially true considering that, when disturbances | soccur, Boomtown security officers are trained to summon security immediately.

For the foregoing reasons, I would reverse the judgment of the trial court and remand this matter for further proceedings.

      . At the hearing on the Motion for Summary Judgment, the trial judge indicated that plaintiffs' memorandum in opposition to the motion had not been filed with the Clerk of Court. This opposition memorandum was also not initially in the record on appeal. However, plaintiffs filed a Motion to Supplement the Appeal Record with the opposition memorandum, which was granted by this Court on May 12, 2009.


author: JUDE G. GRAVOIS, Judge.

text:
    Constantino HERRERA v. UNITED FIRE & CASUALTY COMPANY and Norma Montero.
    No. 09-CA-256.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Writ Denied Feb. 5, 2010.
    Ivan A. Orihuela, Attorney at Law Ken-ner, LA, for Plaintiff/Appellant.
    Raymond A. Pelleteri, Jr., Alexander R. Saunders, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

IgPlaintiff, Constantino Herrera, appeals from a summary judgment rendered in favor of defendant, Norma Montero, and her liability insurer, Lafayette Insurance Company. After thoroughly reviewing the record and the applicable law, for the reasons that follow, we find no merit to the plaintiffs assignments of error and therefore affirm the district court’s grant of summary judgment herein.

Factual Background and Procedural History

Plaintiff alleged that he was injured while cutting tree branches at Montero’s request in Montero’s yard. The briefs and record show that Herrera and Montero were acquainted through work. Montero asked Herrera if he would come over to her house to cut or prune branches on some trees in her yard, specifically because at least one branch was tangled in an overhead cable. Apparently Herrera had trimmed trees on at least one prior occasion for another friend, though he was not a tree trimmer by profession. Herrera went to Montero’s home to inspect the tree and agreed to cut the branches. He returned the next day with his own ladder and |shis own chain saw. He and Montero discussed the advisability of his using a safety harness, but he decided one was not necessary. It is undisputed that Montero did not direct or instruct Herrera on how to perform the work in any way.

According to his deposition, Herrera placed the ladder upon the branch he was to cut. When he cut the branch, it did not fall the way he anticipated, but rather it fell in such a way that caused both Herrera and the ladder to fall to the ground, whereupon Herrera sustained the injuries for which he now seeks to hold Montero hable.

Herrera filed suit against Montero and her homeowners’ insurer, alleging that Montero failed to exercise reasonable care under LSA-C.C. art. 2317.1. He argues that Montero failed to maintain the tree properly and failed to warn him of the dangerous condition, the entanglement of its branches with the cable, both of which are the proximate cause of his injuries.

On appeal, plaintiff argues that the trial court erred in granting summary judgment because 1) issues of material fact remain that preclude summary judgment; 2) factual issues were shown that supported a finding of negligence; 3) it was shown that defendant Montero’s actions caused plaintiffs injuries and damages; and 4) it was shown that Montero breached a duty to Herrera under the circumstances at issue.

Defendants contend that there are no undisputed facts, material or otherwise. They argue that under the factual circumstances of this case, which are that Monte-ro engaged Herrera to rectify the very condition that he alleges constituted the breach of her duty to him that caused his injuries (the tangled branches with the 14cable), Montero has no liability to Herrera. Defendants also emphasize that Herrera decided the manner in which he would perform the work with no direction from Montero.

Analysis

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action (subject to certain exceptions not pertinent herein). LSA-C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id.

Under LSA-C.C.P. art. 966(C)(2):

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

The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Hanks v. Entergy Corp., 2006-477 (La.12/18/06), 944 So.2d 564. "Whether the defendant breached |5that duty and whether that breach was a cause in fact of plaintiffs injuries are factual questions to be determined by the fact finder. Id.

Addressing plaintiffs first assignment of error that issues of material fact remain that preclude summary judgment, our review of the record shows that all of the facts surrounding this accident are undisputed. It is apparent from reading plaintiffs brief that what he objects to is the trial court’s application of law to the undisputed facts. Plaintiff argues, for instance, that Montero’s allowing the tree branch to grow entangled with the cable is a material fact that the trial court should have found and therefore used to conclude that Montero breached her duty “to avoid the creation of an undue risk of harm to others.” The brief, however, fails to show the existence of any disputed facts or the possible existence of heretofore unknown facts surrounding this accident.

The next three assignments of error are discussed in plaintiffs brief together. The record does not support plaintiffs assertion that factual issues were shown that supported a finding of negligence, nor was it shown that defendant Montero’s actions caused plaintiffs injuries and damages, nor was it shown that Montero breached a duty to Herrera under the circumstances at issue.

The case of Zellers v. National American Ins. Co., 514 So.2d 234 (La.App. 5 Cir.1987), is instructive. In that case, plaintiff hired a professional tree trimmer to cut down a dying tree. The tree trimmer inspected the tree and agreed to cut it down. He returned and was in the process of cutting the tree when his own equipment failed and he fell to the ground, landing on some pipe that he had exposed in the process of his work. His petition for damages alleged that the defendant had faded to warn him about the dangerous condition of the tree. In affirming the grant of summary judgment, this Court, at page 236, stated:

|fiIn this case, the moribund condition of the tree may have constituted a hazard imposing liability on defendant, had it caused an injury to someone other than this particular plaintiff under these particular circumstances. But this plaintiff is clearly a professional tree cutter who was specifically hired to eliminate the potential danger. He entered into that work fully cognizant of the risks he was incurring. These uncontested facts do not show a basis for imposing liability on defendants, and we can conceive of no other facts, nor has plaintiff suggested any, which would impose liability on defendants for plaintiffs injury. Since we conclude reasonable minds must inevitably concur as a matter of law on these particular facts, we find the summary judgment was properly granted.

The same reasoning applies to this case and compels the same result. That Herrera was not a “professional” tree cutter is a distinction without a difference. Monte-ro clearly engaged plaintiff to remedy the very condition, the branch tangled in the cable, which plaintiff now claims Montero failed to warn him of. It is clear that Herrera knew the branch was tangled in the cable because he was there to eliminate it. Herrera agreed to perform the work only following his inspection of the tree, did so with his own equipment, and performed the work under his own direction. What he may not have appreciated is how the tree branch would fall once he cut it, but that result of his own actions does not create a duty owed by Montero to him. Under these undisputed factual circumstances, plaintiff has failed to show that any action of Montero caused his injuries, nor has he shown that she breached any duty to him, to warn or otherwise.

At the second hearing in the district court on plaintiffs motion for summary judgment, plaintiff cited Socorro v. City of New Orleans, 579 So.2d 931 (La.1991), to support his contention that Montero’s failure to warn was a factor in causing the accident. However, we find that case distinguishable. In that case, plaintiff sustained serious injuries when he dove into an area of Lake Pontchartrain 17and struck submerged concrete rip rap. The court found that the absence of warning signs, combined with the alluring bulkhead and the submerged rip rap, created an unreasonably dangerous condition, and that, therefore, the City breached its duty to warn swimmers about the presence of the submerged rip rap. In the instant case, the complained-of condition, the branch tangled in the cable, was open and obvious, and it is undisputed that the plaintiff knew about it, since he was there to cut the branch away from the cable.

Conclusion

The district court’s grant of summary judgment herein in favor of defendants is hereby affirmed.

AFFIRMED.

      . 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.

      . We note that plaintiff had ample opportunity in the court below to present his case. After the hearing on the motion for summary judgment on May 30, 2008, the trial court agreed to keep the matter open, at plaintiff's request, for additional discovery. The parties returned to court on September 25, 2008, at which time plaintiff acknowledged that he had not propounded any additional discovery or supplemented his pleadings. The matter was argued again briefly, whereupon the court granted summary judgment in favor of defendants.


author: SUSAN M. CHEHARDY, Judge.

text:
    Debra B. McKENNA v. Patrick D. McKENNA, Sr.
    No. 09-CA-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Keith R. Credo, Pat M. Franz, Michael Baham, Pat M. Franz & Associates, L.L.C., Attorneys at Law, Metairie, LA, for Plaintiff/Appellee, Debra McKenna.
    Bennett Wolff, Wolff & Wolff, Attorney at Law, and R. Scott Buhrer, Flanders, Flanders & Buhrer, Attorney at Law, Me-tairie, LA, for Defendant/Appellant, Patrick D. Mckenna.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This appeal arises in a divorce proceeding. Patrick D. McKenna appeals the trial court’s determination that his former wife, Debra McKenna, is free of fault for purposes of permanent spousal support. We affirm.

On June 14, 2007 Debra McKenna filed a petition for divorce pursuant to La. C.C. art. 102. The petition recited that the parties were married on January 17, 1989, and one child was born of the marriage, a daughter, who was sixteen at the time the divorce petition was filed. Several months after the filing the parties entered into a consent judgment concerning interim periodic spousal support and other matters. The consent judgment ordered Patrick McKenna to pay Debra McKenna spousal support in the amount of $3,125.00 per month.

In June 2008 Patrick McKenna filed a motion for a hearing to determine fault and/or entitlement to final periodic spousal support.

A judgment of divorce was rendered on August 1, 2008. The hearing on fault for purposes of permanent alimony was held later, over the course of two separate days.

|sThe testimony, by Debra McKenna, Patrick McKenna, their daughter, and three therapists who treated Debra McKenna for psychiatric problems, established that the parties argued frequently and that the major subject of contention was money problems. Each blamed the other for poor financial management. Each accused the other of being unsup-portive, cold, and verbally harassing; they claimed the other cursed and screamed, but denied doing it themselves.

The parties’ daughter testified she heard her parents arguing all the time, almost always about money issues. She did not recall her mother raising her voice, screaming or yelling; she said it was her father who always yelled and cursed. She admitted hearing her mother curse at her father once or twice, but said she heard her father scream, yell and curse at her mother a lot. Her father called her mother “stupid” many times.

Debra McKenna’s therapists testified that she suffered from major depression, dissociative disorder, major affective disorder, post-traumatic stress disorder, panic disorder, anxiety disorder, repressed anger, and possible attention deficit disorder. They said that when her husband yelled at her, she dissociated (withdrew), and that she found it difficult to confront her husband, and she often felt intimidated. All the therapists felt she would be unlikely to express her anger directly.

On December 29, 2008 the district court rendered judgment that found Debra McKenna to be without fault and awarded her $2,136.00 per month in permanent spousal support. The court found as follows, in pertinent part:

[T]he court considers the testimony of the experts presented to be the most compelling; since the testimony of the parties themselves presented simply a “he said, she said” situation. Both Donna Lewis, plaintiffs current treating therapist and a licensed social worker, and Maria Ketchum, also a licensed social worker and plaintiffs former treating therapist, testified that plaintiffs manner |4of dealing with issues that trouble her is to withdraw into herself, almost dissociating from the situation. Ms. Ketchum specifically testified that Mrs. McKenna was intimidated by her husband and had difficulty expressing her feelings to him; she could not confront her husband about her anger towards him. Dr. George Daul, plaintiffs psychiatrist, also testified that because he believes plaintiff was abused as a child, she often “checks out” and disconnects from what is going on.
Based upon this testimony, the Court finds it unlikely that plaintiff actually engaged in the type of mental cruelty alleged by defendant which would rise to the level of fault; she was not, it appears, capable of that type of confrontation. Although plaintiff certainly complained about her husband to her therapists and was probably not totally blameless in their marital discord, the Court finds that she is legally entitled to permanent spousal support.

The Court found that Patrick McKen-na’s monthly net income is $8,765.00; that Debra McKenna is capable of working at least a minimum-wage job thirty hours a week, making approximately $786.00 per month; and that Debra McKenna is entitled to one-third of that amount, less her projected earnings of $786.00, bringing the amount to be paid by Patrick McKenna to Debra McKenna to $2,136.00 per month. The court rendered judgment in favor of Debra McKenna accordingly.

Patrick McKenna has appealed. He challenges the determination that Debra McKenna was free from fault that caused the breakup of the marriage.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Patrick McKenna (hereafter “Appellant”) asserts the trial court committed manifest error in finding Debra McKenna (hereafter “Appellee”) to be free from fault in causing the marital breakup. He argues the evidence clearly establishes that she was guilty of mental cruelty.

| ^Appellant states that in finding Appel-lee to be free from fault, the trial court relied almost exclusively on the opinions rendered by the mental health professionals who treat Appellee, but the court gave almost no weight to the testimony of the parties. Appellant argues the therapists’ testimony establishes that the marital relationship was fraught with conflict, in which both parties engaged in a continuous pattern of criticizing, harassing, and blaming the other spouse. Appellant contends the constant mutual accusations and arguing occurred over a lengthy period of time and rendered the parties’ living together insupportable.

“Petty quarrels between husband and wife do not rise to the level of legal fault.... Legal fault consists of serious misconduct, which is a cause of the marriage’s dissolution.” (Citations omitted). Hamsa v. Hamsa, 95-736, p. 4 (La.App. 5 Cir. 1/17/96), 668 So.2d 1209, 1211.

In this context, the word “fault” contemplates “conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord.” Pearce v. Pearce, 348 So.2d 75, 77 (La.1977). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Id.

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. Pearce, 348 So.2d at 78. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Id.

Appellant blamed the breakup of the marriage on his wife’s “excessive spending,” but he produced no documentation of her alleged extravagance. He | r,complained about her spending, but acknowledged he controlled how much money she was given. He denied Appellee’s testimony that he was financially irresponsible, yet admitted that he paid bills not as they arrived but as they came due and, if the statements were moved, he often forgot to pay them. He admitted the times when the household utilities were turned off were due to his failure to pay bills. He claimed he did not have enough money for the bills, yet he acknowledged he gives his adult son over $25,000 a year, and that he paid $100,000 to purchase a farm. Further, his claims that Appellee was nagging and verbally abusive were contradicted by the testimony of his daughter and of Ap-pellee’s therapists.

It is clear the trial court made a factual finding based on credibility determinations, which are entitled to great deference. We find no manifest error in those determinations. Accordingly, there is no merit to this assignment.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Patrick McKenna contends that if the trial court found Debra McKenna to have committed legal fault but excused such conduct because of her mental illness, then it committed legal error.

Appellant asserts that Appellee did not raise the affirmative defense of mental illness, so she cannot urge her mental cruelty should be excused by her psychiatric disorder. Alternatively, he argues, if she has the right to raise the defense, she must establish both that she has a mental illness and that each act of fault-based conduct is causally related to her mental illness, or was involuntarily induced by her mental condition. Appellant acknowledges that Appellee has a psychiatric disorder, major depression. However, he contends, even Appellee’s current treating therapist, Maria Ketchum, testified she did not believe the financial arguments were caused by the psychiatric condition.

|7We find no merit to this assignment. The trial court found that Appellee was free from fault that caused the breakup of the marriage. We have held that the trial court did not err in that determination. Accordingly, Appellant’s second assignment is moot.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Patrick McKenna.

AFFIRMED.

      . Art. 102 allows a divorce to be granted after the parties have lived separate and apart continuously for the period of time prescribed by La. C.C. art. 103.1, which ranges from 180 days to 365 days, depending on circumstances specified in Art. 103.1.

      . A spouse who “has not been at fault and has not sufficient means for support” may be allowed permanent periodic alimony out of the property and earnings of the other spouse "which shall not exceed one-third of his or her income.” La. C.C. art. 112.


author: MARION F. EDWARDS, Judge.

text:
    Ruche J. MARINO, et al. v. PARISH OF ST. CHARLES, A Political Subdivision of The State of Louisiana.
    No. 09-CA-197.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Daniel E. Becnel, Jr., Darryl J. Becnel, Becnel Law Firm, LLC, Reserve, Louisiana, for Plaintiffs/Appellants.
    Alan A. Zaunbrecher, Zaunbrecher Treadaway, L.L.C., Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| aPlaintiffs/appeIlants, Ruche J. Marino (“Marino”), et al., appeal the grant of a summary judgment by the Twenty-Ninth Judicial District Court dismissing their claims with prejudice. We affirm as follows.

Marino’s original petition alleged that, on April 25-26, 2004, there was a heavy rainfall in Norco, Louisiana, and that, as a result of the negligence of the Parish of St. Charles (“the Parish”) in maintaining its drainage system, homes and property were damaged and/or destroyed by flooding. Numerous plaintiffs were named in subsequent amending petitions. The Parish answered the petition and ultimately filed a Motion for Summary Judgment, alleging that it was immune from the action under La. R.S. 29:735, the Louisiana Homeland Security and Emergency Assistance and Disaster Act, as well as under La. R.S. 9:2798.1, Discretionary Function Immunity, and the “Act of God” defense. Following a hearing, the trial court granted judgment in favor of the Parish, finding that La. R.S. 9:2798.1 was applicable and provided immunity. Marino appeals.

Marino argues that the Discretionary Function Immunity Act is not so broad as to grant the Parish the overall umbrella of immunity applied in the present case, and that the court erred in finding there were no genuine material issues of fact. Marino also argues that any such reading of governmental functions immunity would be unconstitutional.

|3On appeal, Marino urges that the statute does not apply to operational, rather than discretionary negligence, and that the present case involves the former. According to Marino, the Parish failed to clean out and repair the culverts, failed to keep gaps in the hurricane levee free from trash and debris, and failed to have adequate operators on the scene to maintain the pumps. In the petition, Marino alleged that, among other things, Clayton Pond is adjacent to the Marino property, and that the pond holds water, one-half of which goes to the pumping station and the other to openings which flow into the pond. According to Marino, there is no control valve and the pumps are inefficient for the quantity of water present. Marino averred that the culvert for the pond on Airline Highway was clogged, that he notified the Parish of such, but that it was not cleaned, and the drainage pipe under Airline Highway collapsed.

It was further alleged that a new levee being constructed on the north side, the Hurricane Protection Levee, constricted the flow of water on the day in question because of debris in the levee gaps, and that the Parish altered the flow of water in such a fashion that everything was blocked, causing the flood.

In connection with the Motion for Summary Judgment, the Parish introduced several exhibits. The affidavit of Michael A. Ports (“Mr. Ports”), a licensed professional engineer with extensive experience in the design of stormwater drainage systems, was admitted, along with a copy of his report on “Hydrologic and Hydraulic Investigations and Findings.” Mr. Ports reviewed the drainage system in Norco, along with schematics, aerial photographs, and survey information, as well as Parish reports and rainfall information. He also observed the Norco system itself. Mr. Ports determined that the Norco system was designed and built to handle the volume of water produced by a 10-year, 24-hour rain event, common for municipalities and parishes and meeting the standard of care for the profession. The 10-year, 24-hour rainfall for Norco is 9.0 inches. Portions of pNorco received 12.97 inches of rain with the average across the entire drainage basin of 10.94 inches for the 15-hour period of 9 a.m. to midnight. Therefore, the drainage system received 1.94 more inches of rain than it was designed to accommodate, and, moreover, the additional rain fell during a much shorter period of time. By Mr. Ports’ calculation, the storm actually dumped rain onto the drainage system at almost twice the rate for which it was designed.

The 100-year, 15-hour amount of rainfall for Norco is 10.9 inches. Therefore, the Norco drainage system experienced the 100-year, 15-hour rainfall event. The rain greatly exceeded the ability of the drainage system to pump it out and resulted in widespread flooding. The depth of the flooding was not affected by the temporary loss of one pump for 30 to 60 minutes. The Norco drainage system was operating efficiently. Clayton Pond, a storage pond in the Norco drainage basin, has its own discharge culverts under Airline Highway. The heavy rainfall caused the Airline Highway embankment to erode and “slough off’ into the drainage ditch, blocking the flow of water from Clayton Pond north under Airline Highway to the New Norco Pumping Station. Airline Highway and its embankment, as well as all culverts under it, are the property and under the care and control of the State of Louisiana, Department of Transportation and Development (“DOTD”). After the rain, the Parish contacted DOTD to repair the eroded embankment and unblock the culvert. On inspection, it revealed a deflection in the middle of the culvert downward, obstructing it by approximately 30 percent

The Bayou Trepagnier Pumping Station, built along the Lake Pontchartrain Hurricane Protection Levee, north of the other stations, was not completed at the time of the storm. The top one-third to one-half of a “gate” in the levee, open during the event, was blocked, allowing the water to pond north of the other two Norco pumping stations between the old and new levees. At no time did this | ¡¡ponded water go back to the Norco drainage basin or affect the operation or efficiency of the Norco pumps.

In his report attached to his deposition, Mr. Ports stated that “the flooding in question was caused by a rainfall that produced runoff far in excess of the design capacity of the drainage system. Furthermore, all three of the pump stations operated as designed and intended.”

Also attached to the Motion for Summary Judgment was the affidavit of Gregory E. Bush (“Mr. Bush”), director of the Parish’s Department of Public Works and Wastewater at the time of the flood. He attested that the storm appeared to have stalled over Norco, which had the heaviest rainfall. On-call personnel responded to the rainfall by 11:00 a.m. and other personnel were called throughout the day to respond to the Norco emergency. Mr. Bush ordered portable, temporary pumps to be placed along Engineers Canal and at the Norco Pumping Stations. One of the electrical pumps at the New Norco Pumping Station was lost for 5 to 30 minutes. Upon noticing that Clayton Pond was not draining properly due to the erosion of the Airline Highway embankment, Mr. Bush ordered a Parish crew to cut a ditch to relieve the blockage. Repairs begun by DOTD revealed the deflection of the culvert (as described by Mr. Ports’ affidavit, supra). Mr. Bush also described the “gate” in the new levee as did Mr. Ports, and verified that no ponded water returned to the Norco drainage system. Finally, he stated that all stormwater drainage canals are cleaned routinely as part of periodic maintenance. An executive order declaring a state of emergency was declared at 6:30 p.m. on April 25, 2004.

In opposition to the Motion for Summary Judgment, Marino submitted copies of a performance review of the April 25, 2004 rainfall event prepared by the Parish’s Department of Public Works, Department of Emergency Preparedness and Ifithe Department of Planning and Zoning. These documents were not attached to any affidavits.

The standard for review of a ruling on a summary judgment is de novo. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A genuine issue exists where reasonable persons, after considering the evidence, could disagree. A fact is “material” if it is one that would matter at trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.

Pursuant to La. C.C.P. art. 966(B), the burden of producing evidence at the hearing on the motion for summary judgment is on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

La. C.C.P. arts. 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an 17affidavit, has no evidentiary value on a motion for summary judgment. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. For this reason, we do not consider the copies of the performance reviews attached to Mari-no’s opposition.

Marino alleges the Parish was negligent in its operation of the drainage system, i.e., that the Parish had a duty to keep the culverts clean and clear, to maintain them, and to operate the pumps in an effective and proper manner.

La. R.S. 9:2798.1 provides:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

|sIn determining “Discretionary Immunity” under La. R.S. 9:2798.1, the court must first consider whether the government employee had an element of choice and his course of action was not specifically prescribed by the statute, regulation, or policy. Conduct cannot be discretionary unless it involves an element of judgment or choice. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence.

In the present case, it is undisputed that the Norco drainage system meets the standard of care and is in use by a majority of Louisiana municipalities and parishes. It is further undisputed that the Norco system experienced a 100-year event dumping rain at almost twice the rate for which the drainage system was designed. Mari-no alleges that debris collected in the gate at the new Hurricane Protection Levee affected the level of flooding. However, the evidence submitted by the Parish establishes that any such debris had no ef-feet whatsoever on the flooding at issue here. Regarding the drainage culverts and structures under Airline Highway, it is undisputed that ownership and control of these is vested with the State of Louisiana, rather than the Parish.

As in Fossier, applying the test to the facts of the instant case, we find that the decisions made in this case involved elements of judgment and choice, which means the Parish’s actions were discretionary. The Parish has shown the necessary social and economic consideration surrounding its decisions regarding the choice |fland operation of the drainage system for this specific area, including the fact that its system met the necessary standards.

Further, as the Parish points out, there is nothing in the record to dispute the finding by Mr. Ports that the excess runoff caused by the intense rain caused the flooding, rather than any action taken by the Parish.

The longstanding jurisprudential rule of law in Louisiana is litigants must raise constitutional attacks in the trial court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized. None of the exceptions to this general rule apply in the present case.

Accordingly, the Parish was entitled to summary judgment. Costs of this appeal are taxed to the appellants.

AFFIRMED.

      . Bayou Fleet Partnership v. Phillip Family, LLC, 07-581 (La.App. 5 Cir. 2/6/08), 976 So.2d 794, writ denied, 08-0721 (La.5/30/08), 983 So.2d 899.

      . Id.

      . Cyprien v. Bd. of Supervisors ex rel. Univ. of La. Sys., 08-1067 (La.1/21/09), 5 So.3d 862.

      . Id.

      . Bunge N.A., Inc. v. Bd. of Commerce & Indus. and La. Dep't of Econ. Dev., 07-1746 (La.App. 1 Cir. 5/2/08), 991 So.2d 511, writ denied, 08-1594 (La.11/21/08) 996 So.2d 1106.

      . Id. (citing Williams v. Mem'l Med. Ctr., 03-1806, pp. 14-15 (La.App. 4th Cir.3/17/04), 870 So.2d 1044, 1053, writ denied, 04-0963 (La.6/4/04), 876 So.2d 93).

      . Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255 (citing Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/08/99), 745 So.2d 1).

      . Id.

      . Fossier, supra (citing Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2 Cir. 1992), writ denied, 613 So.2d 976 (La.1993), and Simeon v. Doe, 618 So.2d 848 (La.1993)).

      . Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La. 1/19/05), 903 So.2d 392 (citing Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864).


author: CLARENCE E. McMANUS, Judge.

text:
    Keith G. ROSE, et al v. Jack A. TITTLE, Jr., et al.
    No. 09-CA-193.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul A. Eckert, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.
    Stephen J. Laborde, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

laThis is an appeal from the trial court’s grant of a peremptory exception of prescription in favor of appellee, Jack A. Tittle, Jr. and Tittle & Tittle, Attorneys at Law, dismissing the legal malpractice claims of appellants.

STATEMENT OF THE CASE

Appellants, Keith G. Rose, Kurt E. Rose, Kenneth E. Rose, Donna Rose Billo-daux, and Kevin Rose, are the children of Edmond Gessner Rose. Rose executed a Last Will and Testament on August 15, 1997 bequeathing his entire estate to Dorothy Topolank Barbier. On January 8, 1999, Rose executed another Last Will & Testament, prepared and notarized by Jack Tittle, Jr., Attorney at Law. Tittle’s two secretaries signed the will as witnesses. This 1999 will revoked all prior wills and bequeathed his entire estate to his five children, the appellants listed above. Rose died on July 31,1999.

On October 21, 1999, Barbier filed a Petition for Probate & Confirmation of Executrix seeking to probate the 1997 will. Appellants then filed a Petition to Annul Probated Testament and sought to probate the 1999 will, arguing the 1997 |swill had been revoked. In the course of the proceedings, Barbier sought affidavits from the notary and witnesses to the 1999 will. Tittle sent a letter by fax to counsel for appellants, Paul Eckert, on July 27, 2000, regarding the affidavits. Tittle advised Eckert that neither witness to the 1999 will could recall being present when the will was signed. Tittle further informed Eckert that he had checked his notes on the matter and must recant his earlier statements regarding the will. In the letter, Tittle further explained the circumstances surrounding the signing of the will. He indicated that Rose signed the will when Tittle was in Slidell with him. Tittle’s secretaries later signed the will as witnesses.

On July 31, 2000, appellants’ counsel, Eckert, sent a letter to Barbier’s counsel, Richard Swartz, stating it was his opinion that the court would find the 1999 will invalid, the 1997 will revoked, and the succession would be treated as intestate.

At Barbier’s request, the deposition of Tittle was held on August 10, 2000. Tittle admitted in his deposition that the 1999 will was not properly confected because it was not signed in the presence of two witnesses.

On August 8, 2001, appellants filed a Petition for Damages alleging Tittle, as Rose’s attorney, failed to execute a valid will on behalf of Rose on January 8, 1999. Appellants contended Tittle revealed for the first time at his August 10, 2000 deposition that the will was not properly con-fected. Appellants alleged Tittle had maintained the will was valid and executed by Rose in the presence of two witnesses until his deposition.

In response to this petition, Tittle filed an Answer and exception of prescription or preemption on May 31, 2002. Following further discovery, Tittle filed a Peremptory Exception of Prescription on July 29, 2008 alleging the appellants’ lawsuit had been filed more than one year after they received notice of |4a possible legal malpractice claim. Tittle alleged appellants first learned of the possible claim in the July 27, 2000 letter from Tittle to Eckert. Since the petition was not filed until August 8, 2001, Tittle argued the petition was filed more than one year after appellants discovered, or should have discovered, the alleged act that was the basis of the legal malpractice claim, therefore, the claim was prescribed.

The trial court held a hearing on the exception on September 30, 2008. The trial court granted Tittle’s exception of prescription and stated in open court that the letter written by appellants’ counsel, Eckert, to Barbier’s counsel, Swartz, on July 31, 2000 states that it was Eckert’s opinion that the 1999 will was invalid. Therefore, there was notice of the possible legal malpractice claim at that time. On September 30, 2008, the trial court executed a written judgment granting Tittle’s exception of prescription and dismissing appellants’ Petition for Damages with prejudice.

Appellants now appeal the trial court’s judgment. For the reasons which follow, we affirm the trial court’s judgment.

DISCUSSION

On appeal, appellants contend the August 10, 2000 deposition of Tittle was the first time he specifically stated no witnesses were present when the 1999 will was executed. The appellants assert that the letter faxed on July 31, 2000 from their counsel, Paul Eckert, to counsel for Barbier, Richard Swartz, attached and referenced the July 27, 2000 letter from Tittle but only stated the 1999 testament may be invalid.

Tittle argues in opposition that Eckert also specifically stated in his July 31, 2000 letter to Swartz that, in accordance with the Fifth Circuit case of Succession of Le Gardeur, 747 So.2d 204 (La.App. 5th Cir. 1999), it was his opinion that the court would find the 1999 will invalid. Tittle argues that Eckert knew as early as 15July 27, 2000, or at least by July 31, 2000, that the will was defective. Thus, Tittle contends Eckert and the appellants knew of the defect in the will, and the possible malpractice claim against him, before his August 10, 2000 deposition.

La. R.S. 9:5605 provides that an action for legal malpractice against an attorney must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered, or should have been discovered. Notice to the client’s attorney is imputed to the client for purposes of determining when prescription begins to run. Lirette v. Roe, 1993-0441 (La.App. 4 Cir. 1/13/94), 631 So.2d 503.

In this case, Tittle’s July 27, 2000 letter acknowledged to Eckert, appellants’ counsel, that the witnesses to the 1999 will were not present when the will was executed and he was recanting his earlier statements regarding the presence of the witnesses after checking his notes. Further, the July 31, 2000 letter from Eckert to Swartz clearly states that it is Eckert’s opinion that the court will find the 1999 will invalid. Therefore, Eckert, appellants’ counsel, had discovered the alleged act of legal malpractice no later than July 31, 2000.

The appellants’ petition for damages alleging legal malpractice against Tittle was not filed until August 8, 2001. This petition was filed more than one year after the alleged act of malpractice was discovered or should have been discovered, as required by La. R.S. 9:5605. Thus, we find the trial court correctly granted Tittle’s exception of prescription and correctly dismissed all claims against him.

Accordingly, the trial court’s judgment granting the exception of prescription and dismissing appellants’ Petition for Damages against Tittle is affirmed.

AFFIRMED.