text:
    STATE of Louisiana v. Louis HANDY
    NO. 2019-K-0017
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 16, 2019
    LEON A. CANNIZZARO, JR., District Attorney, MICHAEL DANON, Assistant District Attorney, ORLEANS PARISH, 619 South White Street, New Orleans, Louisiana 70119 COUNSEL FOR RESPONDENT/STATE OF LOUISIANA
    JUSTIN CAINE HARRELL, Orleans Indigent Public Defenders, 1100 Poydras Street, Suite 2900, New Orleans, Louisiana 70163 COUNSEL FOR RELATOR/DEFENDANT
    (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   JUDGE SANDRA CABRINA JENKINS

Relator/defendant, Louis Handy, seeks expedited review of the trial court's ruling granting the State's motion to set aside defendant's motion for speedy trial and granting the State's request for a continuance of the trial date. For the following reasons, we grant defendant's writ, vacate the trial court's ruling, and remand for further proceedings.

PROCEDURAL BACKGROUND

On October 7, 2016, defendant was charged by bill of information with two counts of attempted second degree murder and one count of possession of a firearm by a convicted felon. Co-defendant, Dericka Hunter, was charged in the same bill of information with one count of accessory to second degree murder. At all times during these proceedings, defendant and Hunter have been represented by separate counsel.

On September 10, 2018, defendant filed a motion for speedy trial with an accompanying affidavit certifying that defendant and his counsel were prepared to proceed to trial in accordance with the time delays set forth in La. C.Cr.P. art. 701(D). At that time, trial was set for October 29, 2018.

On October 24, 2018, the State elected to sever the trials of defendant and Hunter. The next day, the State sought a continuance, which was denied by the trial court. The State filed writs in this Court and in the Louisiana Supreme Court. This Court denied the State's writ, but the Louisiana Supreme Court granted the State's writ and granted a continuance. See State v. Handy , unpub., 18-0917 (La. App. 4 Cir. 10/26/18), writ granted , 18-1769 (La. 10/27/18), 254 So.3d 695. Subsequently, trial was reset for January 7, 2019.

On December 20, 2018, defendant appeared with counsel for a pre-trial conference. At that time, the State orally moved for the trial court to set aside defendant's motion for speedy trial and requested a continuance. After hearing arguments from counsel, the trial court granted the State's motion to set aside defendant's motion for speedy trial and granted the State's request for a continuance. Defense counsel objected and noticed intent to seek writs.

Defendant timely filed this writ on January 7, 2019. In consideration of defendant's writ, this Court ordered a per curiam from the trial court and a response from the State.

DISCUSSION

Defendant argues that the trial court erred in summarily rescinding his motion for a speedy trial that was filed in accordance with La. C.Cr.P. art. 701(D), which provides in pertinent part as follows:

D. (1) A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit by defendant's counsel certifying that the defendant and his counsel are prepared to proceed to trial within the delays set forth in this Article. Except as provided in Subparagraph (3) of the Paragraph, after the filing of a motion for a speedy trial by the defendant and his counsel, the time period for commencement of trial shall be as follows:
(a) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.
...
(2) Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.
(3) After a motion for speedy trial has been filed by the defendant, if the defendant files any subsequent motion which requires a contradictory hearing, the court may suspend, in accordance with Article 580, or dismiss upon a finding of bad faith the pending speedy trial motion. In addition, the period of time within which the trial is required to commence as set forth by Article 578, may be suspended, in accordance with Article 580, from the time that the subsequent motion is filed by the defendant until the court rules upon such motion.

The record reflects that defendant formally invoked his right to a speedy trial on September 10, 2018, by filing the appropriate motion and affidavit required by La. C.Cr.P. art. 701(D)(1), thereby starting the 120 day time period for commencing defendant's trial. Accordingly, absent any suspension or interruption of that time limitation, the State had until January 8, 2019 to bring defendant to trial. See La. C.Cr.P. art. 701(D)(3) ; State v. Green , 01-3358, p. 5 (La. 2/1/02), 808 So.2d 318, 321 ("[T]here is a day for day reduction of the statutory period for a speedy trial when the defense acquiesces to time delays.").

Upon the expiration of the 120 day time limitation for commencing trial, a defendant may file a motion for release from custody; and, in accordance with La. C.Cr.P. art. 701(D)(2), a defendant held in custody shall be released without bail, if after contradictory hearing with the district attorney, just cause for the delay is not shown. The remedy for a violation of defendant's statutory right to a speedy trial under La. C.Cr.P. art. 701 is limited to pre-trial release without bail or discharge of his bond obligation pending trial; "a motion to quash is not provided for." State v. Guy , 99-1893, p. 10 (La. App. 4 Cir. 7/19/00), 775 So.2d 454, 460 ; see State v. Pete , 12-0378, p. 7 (La. App. 4 Cir. 3/20/13), 112 So.3d 353, 358.

Once the motion for speedy trial is filed and the time period begins to run, La. C.Cr.P. art. 701(D) does not provide a mechanism by which the State may move to set aside or dismiss the defendant's properly invoked statutory right to speedy trial, except pursuant to La. C.Cr.P. art. 701(D)(3), "if the defendant files any subsequent motion which requires a contradictory hearing , the court may suspend, in accordance with Article 580, or dismiss upon a finding of bad faith the pending speedy trial motion." (emphasis added).

In this case, the State orally moved to set aside defendant's motion for speedy trial and for a continuance of trial by arguing to the trial court that the failure of the former co-defendant, Hunter, to cooperate with the State could be imputed to defendant. The State did not file a written motion in support of its argument or a motion for continuance of trial in accordance with La. C.Cr.P. art. 707. In addition, no contradictory hearing on the State's motions was noticed or held. Under these circumstances, based upon the applicable provisions of La. C.Cr.P. art. 701(D), we find the trial court abused its discretion in granting the State's oral motion to set aside defendant's motion for speedy trial and motion to continue trial (without date).

CONCLUSION

For the foregoing reasons, we vacate the trial court's December 20, 2018 ruling setting aside defendant's motion for speedy trial, and we remand this matter for further proceedings.

WRIT GRANTED; VACATED AND REMANDED

      The facts underlying the charged offenses are not pertinent to our review of defendant's writ.

      The record reflects that defendant has been continued in custody since he was charged on October 7, 2016.

      In this case, the record indicates that the trial setting of November 26, 2018 was continued on the joint motion of the defense and the State; on December 6, 2018, the trial date was set for January 7, 2019. Arguably, the 120 day time limitation was suspended from November 26, 2018 until December 20, 2018, when defendant objected to the trial court's ruling setting aside the motion for speedy trial and granting the State's continuance.

      Defendant is not entitled to release at this time, as he has not filed a motion for release pursuant to La. C.Cr.P. art. 701(D). If, on remand, defendant seeks such relief, the trial court shall hold a contradictory hearing in accordance with La. C.Cr.P. art. 701(D)(2).


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Timothy R. FARBER
    NO. 18-KP-353
    Court of Appeal of Louisiana, Fifth Circuit.
    November 14, 2018
    COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/RELATOR, TIMOTHY R. FARBER, Frazilia Wiggins
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

Defendant/relator, Timothy R. Farber, seeks review of the trial court's denial of his motion to suppress evidence and conviction and sentence for possession of less than 14 grams of marijuana, a misdemeanor offense. For the reasons that follow, we deny defendant's writ application and affirm his conviction and sentence.

Procedural History

Defendant was charged by bill of information filed July 25, 2017, with possession of less than 14 grams of marijuana in violation of La. R.S. 40:966 C, a misdemeanor offense. On December 7, 2017, the trial court simultaneously heard defendant's motion to suppress evidence and trial on the merits of the charged offense. At the conclusion of the motion hearing and trial on December 8, 2017, the trial court denied defendant's motion to suppress and found him guilty as charged.

On May 17, 2018, the trial court sentenced defendant to fifteen days in the Jefferson Parish Correctional Center. The trial court suspended imposition of defendant's sentence and ordered him to be placed on twelve months active probation to commence on July 26, 2018. Defendant filed a written notice of intent to apply for a writ of review, which was granted by the trial court. In this writ application, defendant seeks review of the trial court's December 8, 2017 denial of his motion to suppress evidence and the trial court's finding that he was guilty of the misdemeanor offense of possession of less than 14 grams of marijuana.

Facts

At the motion hearing and trial, Detective Blaine Howard of the Jefferson Parish Sheriff's Office, Project STAR division, testified that he and his partner, Detective Daniel Lassus, were on pro-active patrol of a high crime area in the 4000 block of Jefferson Highway on March 11, 2017. Approximately 6:40 P.M., he observed defendant standing in front of a library which was closed at the time, using his cell phone. Detective Howard testified that his suspicion was heightened, so they obtained a position of surveillance of defendant, which he believed was "consistent with someone that could possibly be involved in a criminal activity." Detective Howard testified that after approximately five minutes of cell phone use he observed defendant cross Jefferson Highway and enter a Rite Aid. Ten minutes later, defendant exited the Rite Aid with a bag and a bucket in his hand and began walking eastbound on Jefferson Highway.

Detective Howard testified that they were dressed in civilian clothes and had service weapons, badges, and ballistic vests bearing the word "Sheriff," which clearly identified them as law enforcement officers when they approached defendant to "speak" with him. After identifying themselves as police officers, the detectives asked defendant about his presence at the library. Defendant informed them that he was using the library's Wi-Fi while waiting for a ride from a friend. For officer safety, the detectives inquired as to whether defendant had any weapons or narcotics on his person. Defendant replied that while he did not have any weapons, "he uses marijuana." Detective Howard then asked whether defendant had any marijuana on his person, and defendant responded that he did not have any marijuana on him but he had some in his hotel room.

Based upon his admission, defendant was detained, advised of his Miranda rights, and transported to his hotel, The LaBella, on Jefferson Highway. Detective Howard stated that once they were at the hotel, defendant was presented with, reviewed, and signed a consent to search form providing consent to search his hotel room. The detectives entered the hotel room with a key provided by defendant and seized 8.8 grams of marijuana from inside a nightstand after defendant informed them of its location. Defendant was issued a misdemeanor summons for possession of marijuana in lieu of his arrest.

Defense counsel argued the marijuana should be suppressed because the detectives did not have reasonable suspicion or probable cause to stop defendant, and thus, the evidence seized from his hotel room constituted fruit of the poisonous tree. Defense counsel further argued that if the detectives believed defendant was involved in criminal activity, they should have stopped defendant while he was standing in front of the library.

The State argued that this case was analogous to those cases involving consensual encounters, citing State v. Martin, 11-0082 (La. 10/25/11), 79 So.3d 951, because the detectives merely approached defendant to ask him what he was doing outside of a closed library and, for their safety, whether he had any weapons or narcotics on him.

The trial court denied defendant's motion to suppress evidence and found him guilty as charged. Defendant was sentenced and this writ application followed.

Discussion

In his first assignment of error, defendant asserts that Detective Howard lacked sufficient reasonable suspicion for the initial investigatory stop, and therefore everything that occurred after the illegal stop is fruit of the poisonous tree and should have been suppressed. Defendant argues that standing in front of a closed library and using a cell phone is not a "particularized and objective basis for suspecting that he was committing or had committed a criminal offense," and therefore insufficient to support a finding of reasonable suspicion. Defendant further contends the detectives went beyond the scope of a Terry stop when they questioned him regarding his possession of weapons and illegal narcotics, and as such, his statement regarding the marijuana in his hotel room was given involuntarily.

A trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bellow, 07-824 (La. App. 5 Cir. 3/11/08), 982 So.2d 826, 829. In a hearing on a motion to suppress, the State has the burden to establish the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703 D; State v. Lewis, 12-902 (La. App. 5 Cir. 6/27/13), 121 So.3d 128, writ denied, 13-1926 (La. 4/17/14), 138 So.3d 618.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect individuals against unreasonable searches and seizures. State v. Nelson, 02-65 (La. App. 5 Cir. 6/26/02), 822 So.2d 796, 800, writ denied, 02-2090 (La. 2/21/03), 837 So.2d 627 ; State v. Snavely, 99-1223 (La. App. 5 Cir. 4/12/00), 759 So.2d 950, 956, writ denied, 00-1439 (La. 2/16/01), 785 So.2d 840. In an effort to discourage police misconduct in violation of these standards, evidence recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution against the citizen. Nelson, 822 So.2d at 800 ; State v. Duckett, 99-314 (La. App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

An investigatory stop, however, may be conducted when a police officer has a reasonable, articulable suspicion of criminal activity. State v. Molette, 11-384 (La. App. 5 Cir. 11/29/11), 79 So.3d 484, 489 ; State v. Belton, 82-2061, 82-2120 (La. 11/28/83), 441 So.2d 1195, 1198, cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place who they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. Molette, 79 So.3d at 489.

Reasonable suspicion is something less than probable cause to arrest, though it is more than an officer's mere unparticularized suspicion or hunch of criminal activity. Molette, supra ; State v. Massey, 03-1166 (La. App. 5 Cir. 1/27/04), 866 So.2d 965, 968. In making the determination of whether a police officer had reasonable suspicion, a reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. Molette, supra. Factors that may support reasonable suspicion for an investigatory stop include an officer's experience, his knowledge of recent criminal patterns, and his knowledge of an area's frequent incidence of crimes. Molette, supra. However, an individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy it entails and consider the totality of the circumstances in determining whether reasonable suspicion exists. State v. Marzett, 09-1080 (La. App. 4 Cir. 6/9/10), 40 So.3d 1204, 1208.

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). On the contrary, as the Supreme Court explained in Adams, the Terry case "recognizes that it may be the essence of good police work to adopt an intermediate response." Id."A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id.

Although reasonable suspicion is required for a police officer to stop an individual, it is not required every time an officer approaches a citizen in a public place. Police officers possess the same right as any citizen to approach an individual and ask a few questions. State v. Jackson, 00-3083 (La. 3/15/02), 824 So.2d 1124, 1126 (per curiam ), citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A police officer's action of merely approaching an individual does not implicate the protections of the Fourth Amendment. Jackson, 824 So.2d at 1126.

For purposes of the Fourth Amendment, a person is "seized" when that person submits to the police show of authority or is physically contacted by the police. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; State v. Sylvester, 01-0607 (La. 9/20/02), 826 So.2d 1106, 1108. Under the Louisiana Constitution, a person is also "seized" when an actual stop is imminent. An actual stop is imminent "when the police come upon an individual with such force, that regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain [to occur]." Sylvester, supra. Factors to consider in determining whether an actual stop is imminent are the proximity of the police in relation to the defendant at the outset of the encounter, whether the individual has been surrounded by the police, whether the police approached the individual with their weapons drawn, whether the police and/or the individual are on foot or in motorized vehicles during the encounter, the location and characteristics of the area where the encounter takes place, and the number of police officers involved in the encounter. State v. Stanfield, 05-839 (La. App. 5 Cir. 3/14/06), 925 So.2d 710, 716.

In its reasons for denying the motion to suppress, the trial court found that Detective Howard possessed reasonable suspicion to believe that a crime had been, was being, or was about to be committed, based upon articulable facts. The detectives testified that they were on pro-active patrol in a high crime neighborhood and defendant was observed standing in front of a closed library for approximately five minutes. We find the trial court's ruling denying defendant's motion to suppress was correct, but not for the grounds asserted by the trial court.

It is not clear based on the record whether Detective Howard possessed the requisite reasonable suspicion to conduct an investigatory stop of defendant. However, Detective Howard had the right to engage defendant in conversation without reasonable grounds to believe that he committed a crime. Detective Howard testified that he and his partner were in their vehicle on pro-active patrol of a high crime area when they observed defendant standing in front of a closed library using his cell phone for five minutes. The officers then observed defendant cross the street, enter a Rite Aid, and later exit the store with some purchased items. At that time the detectives decided to "speak" with defendant about his presence at the library. Detective Howard testified that they pulled up to defendant and exited their vehicle. They were clearly identified as law enforcement wearing civilian clothes by their service weapons, badges, and ballistic vests with the word "Sheriff" written on them. Detective Howard inquired as to defendant's presence at the library and, for officer safety, whether defendant had any weapons or narcotics on his person. In response, defendant provided an incriminating statement regarding marijuana at his hotel room, was advised of his Miranda rights, handcuffed, and transported back to his hotel where the detectives conducted a search of his room pursuant to his written consent. "The proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times." Sylvester, 826 So.2d at 1108 ; See State v. Thomas, 98-1024 (La. App. 5 Cir. 3/10/99), 734 So.2d 39 (this Court found there was no "seizure" within the meaning of the Fourth Amendment when officers on patrol in high crime and narcotic traffic area first approached the defendant standing on the sidewalk after recognizing defendant as a person who had been frequently interviewed and arrested); State v. Turner, 08-1188 (La. App. 5 Cir. 5/12/09), 13 So.3d 695, writ denied, 09-2100 (La. 8/18/10), 42 So.3d 400 (this Court found the defendant was not "seized" for purposes of the Fourth Amendment when officer approached defendant, who was standing with several males in a parking lot, to conduct a field interview); Martin, supra (nothing in the conduct of the police officer decisively changed the consensual nature of the officer's brief encounter with the defendant into a detention; defendant voluntarily answered a potentially incriminating question).

Based upon the facts adduced at trial, we find the detectives had the right to engage defendant in a conversation about his presence at the library and that such discussion did not constitute a "seizure." Upon approaching defendant, Detective Howard did not indicate to him that a detention was imminent. While Detective Howard and his partner approached defendant in their vehicle and then exited to speak with him, there was no testimony presented that their guns were drawn, that he was surrounded by police, or that a frisk or pat-down was conducted. There is nothing in the record to indicate that Detective Howard ordered defendant to submit to his authority or ever attempted to assert any official authority over defendant by ordering or signaling him to stop. The encounter between the detectives and defendant was brief and defendant was only physically restrained after he provided a voluntary answer to a potentially incriminating statement. We therefore find defendant was never "seized" for purposes of the Fourth Amendment during the initial encounter that occurred in this case. Accordingly, we find the trial court did not err in denying defendant's motion to suppress and finding him guilty as charged.

In his second assignment of error, defendant argues the marijuana found in his hotel room after the alleged unlawful stop and the statements made prior to his arrest constitute "fruits of the poisonous tree" and should have been suppressed. He contends that Detective Howard conducted an illegal search of his hotel room where the consent to search form was signed after the search of his hotel room as evidenced by the documentary evidence in this case. Accordingly, defendant argues Detective Howard's contradictory testimony should be disregarded in favor of the documentary evidence in this case.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well delineated exceptions.

State v. Stone, 94-155 (La. App. 5 Cir. 7/26/94), 641 So.2d 652, 655, writ denied, 95-0631 (La. 1/6/97), 685 So.2d 129.

Consent to search constitutes one of the exceptions to the probable cause and warrant requirements of the Fourth Amendment when it is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. State v. Nicholas, 06-903 (La. App. 5 Cir. 4/24/07), 958 So.2d 682, 687. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was freely and voluntarily given. State v. Enclade, 03-353 (La. App. 5 Cir. 9/16/03), 858 So.2d 8, 15. Voluntariness of a defendant's consent to search is a question of fact to be determined by the trial judge from a review of the totality of the circumstances. Id. The factual determinations of the trial court on the issue of voluntariness of a consent to search are entitled to great weight on appellate review. Id. The trial court's determination as to the credibility of witnesses is to be accorded great weight on appeal. Id.

Because the stop was lawful, we find the seizure of the marijuana was legally obtained per a validly executed consent to search. During a valid stop, defendant, who was not subject to a custodial interrogation, was asked by Detective Howard regarding his presence at the library, to which defendant stated he was using the library's Wi-Fi while waiting for a ride. Detective Howard testified that for officer safety defendant was asked whether he had any weapons or narcotics on his person. Defendant stated that he used marijuana and had it in his hotel room. Based on defendant's inculpatory statement, Detective Howard read defendant his Miranda rights. Defendant was presented with, reviewed, and signed a consent to search form to search his hotel room. While the record is unclear as to whether defendant's consent to search was obtained at the scene of the stop or at the scene of the hotel, it is consistent in that consent was obtained prior to a search of the hotel room, which the detectives gained entry to with the key provided by defendant. In explaining the time discrepancies on the consent to search form (7:10 P.M.) and the misdemeanor summons (7:00 P.M.), Detective Howard testified that the time written on the summons was the time of the stop and not the time defendant signed the summons which was issued to him after the search of the hotel room and the seizure of the marijuana.

In denying defendant's motion to suppress, the trial court found the time reflected on the summons was the time of the initial stop, not the time the summons was issued/signed. The court further found that defendant was not forced, threatened, or promised anything in exchange for the consent to search. Because a trial court's determination as to the credibility of a witness on a motion to suppress is accorded great weight on appeal unless unsupported by the evidence, we find no error in the trial court's denial of defendant's motion to suppress.

Errors Patent

A complete record of this case was not provided. Thus, a review for errors patent according to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990) was conducted only as to the information provided in this writ application. No errors patent were discovered.

Conclusion

Considering the evidence and applicable law, we affirm defendant's conviction and sentence. Accordingly, this writ application is denied.

WRIT DENIED; CONVICTION AND SENTENCE AFFIRMED

      Defendant's written motion to suppress evidence is not contained in the writ application.

      Detective Howard testified that he and other investigators assigned to the Project STAR division have made and/or participated in numerous narcotics related arrests in the area.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      On cross-examination, Detective Howard testified that defendant was presented with and signed the consent to search form prior to his relocation to the hotel.

      The parties stipulated that if Pamela Williams Cyprien, expert in the analysis of controlled dangerous substances, were called to testify she would testify that the evidence seized in this matter was marijuana.

      Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      Defendant did not present this argument to the trial court, and has therefore waived this basis for suppression. A new basis for an objection may not be urged for the first time on appeal. State v. Butler, 12-2359 (La. 5/17/13), 117 So.3d 87, 89, cert. denied, 572 U.S. 1064, 134 S.Ct. 1879, 188 L.Ed.2d 918 (2014) ; State v. Enclard, 03-283 (La. App. 5 Cir. 6/19/03), 850 So.2d 845, 853. There is no evidence that a motion to suppress statement was ever filed in this case.

      Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451 ; State v. Mollette, 08-138 (La. App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-155 (La. 10/16/09), 19 So.3d 472.


author: LILJEBERG, J.

text:
    Nancy WILLIAMS, Wife of/and Franco Valobra v. Robert Allan NELSON and Jerome Garfield Smith, III as Co-Trustees of the Allan R. & Louise S. Nelson Revocable Trust & the Allan R. Nelson Marital Trust (Trusts)
    NO. 18-C-207
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/RESPONDENT, NANCY WILLIAMS, WIFE OF/AND FRANCO VALOBRA, Joseph R. Ward, Jr.
    COUNSEL FOR DEFENDANT/RELATOR, ROBERT ALLAN NELSON AND JEROME GARFIELD SMITH, III AS CO-TRUSTEES OF THE ALLAN R. & LOUISE S. NELSON REVOCABLE TRUST & THE ALLAN R. NELSON MARITAL TRUST (TRUSTS), David F. Waguespack
    AMICUS CURIAE, LOUISIANA REALTORS, Patricia B. McMurray, Alexander M. McIntyre
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

Relators/Defendants, Robert Allan Nelson and Jerome Garfield Smith, III, as co-trustees of the Allan R. & Louise S. Nelson Revocable Trust and The Allan R. Nelson Marital Trust ("Trustees") filed an application for supervisory writs seeking reversal of the trial court's denial of their motion for summary judgment. After reviewing the writ application, this Court allowed the parties the opportunity to present oral argument and to submit additional briefing to this Court in accordance with La. C.C.P. art. 966(H). For the following reasons, we reverse the trial court's judgment denying the summary judgment motion, grant the Trustees' motion and dismiss all claims alleged against the Trustees by respondents/plaintiffs, Nancy Williams and Franco Valobra, with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

This matter involves plaintiffs' purchase of a residence located at 415 Vincent Avenue in Metairie, Louisiana from the Trustees for $1,400,000.00 (the "Property"). When they initially listed the Property for sale in February 2012, the Trustees each executed a document entitled "Property Disclosure Document for Residential Real Estate" ("Property Disclosure") attesting to the condition of the Property. The form required them to indicate "yes," "no" or "no knowledge" for each question regarding whether defects existed in specific parts of the Property listed on the form. The Trustees checked the "no" boxes for most inquiries relating to existing defects. They answered "yes" to Questions 5 and 12 regarding whether the property experienced flooding, water intrusion, accumulation or drainage problems. The Trustees disclosed that the Property experienced flooding during Hurricane Katrina and also during the May 8, 1995 flood due to a blocked drain. They answered "yes" in response to Questions 7, 8 and 9 regarding termite damage and disclosed that the Property previously experienced termite damage, which was repaired. The Trustees attested that the statements and explanations provided were true and correct to the best of their knowledge.

On February 27, 2012, plaintiffs signed an Agreement to Buy offering to purchase the Property, subject to inspections. The Agreement to Buy warned of the consequences of the failure to obtain inspections and notify the sellers of deficiencies and desired remedies:

FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN NOTICE OF DEFICIENCIES AND DESIRED REMEDIES TO SELLER (OR SELLER'S DESIGNATED AGENT) AS SET FORTH IN LINES 141 THROUGH 155 WITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY BUYER OF THE PROPERTY'S CURRENT CONDITION.

Plaintiffs also signed an addendum to the Agreement to Buy explaining the Property would be sold without any warranties and acknowledging that they did not rely on any statements or representations made by the Trustees:

It is expressly agreed that immovable property herein conveyed and all improvements and compound parts, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems, built-in-appliances, and all other items located hereon are conveyed by Seller and accepted by Purchaser "As Is, Where Is," without any warranties of any kind whatsoever, even as to the metes and bounds, zoning, operation, suitability of such properties for the use intended by the Purchaser, without regard to the presence of apparent or hidden defects and with the Purchaser's full and complete waiver of any and all rights for the return of all or any part of the purchase price by reason of any such defects.
Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of the Seller has made any direct, indirect, explicit or implicit statement, representation or declaration, whether by written or oral statement or otherwise, and upon which Purchaser has relied, concerning the existence or non-existence of any quality, characteristic or condition of the property herein conveyed. Purchaser has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Purchaser, in Purchaser's sole discretion deems sufficiently diligent for the protection of Purchaser's interests.
Purchaser expressly waives the warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Articles 2520 through 2548, inclusive, and any other applicable state or federal law and the jurisprudence thereunder.

After the parties reached an agreement on the purchase price, plaintiffs obtained a home inspection, a swimming pool inspection and a termite inspection. On March 9, 2012, plaintiffs submitted a "Property Inspection Response," which included written reports regarding the home, swimming pool and termite inspections. The reports noted the following issues with the Property:

1) Air Conditioning System: The report noted organic growth at vents and pan holding water "which may indicate an AC problem." The inspector recommended an evaluation by a qualified licensed contractor.
2) Roof: The report noted a damaged or missing shingle and staining in the attic and stains/damage on the front wall in the rear addition. The report noted the inspector was unable to access the front roof and was unable to determine if active leaks existed. The inspector suggested that the plaintiffs inquire with the seller about "the history of leaks" and recommended evaluation by a qualified licensed contractor.
3) Moisture: The report noted moisture stains/damage at the right rear french door and door trim and a courtyard french door trim. The inspector recommended an evaluation by a qualified licensed contractor. The report also noted moisture stains/damage at the right side of the laundry and noted with respect to the patio, "surface raised/settled."
4) Termites: The report noted unusual spots in the upstairs hall linen closet and further stated they were unable to determine if they were caused by wood destroying insects.
5) Pool: The report noted the pool was cloudy and had signs of aging. It also noted certain equipment needed to be repaired or replaced.
6) Second Floor: The report noted that a door was difficult to close and that may be indicative of structural movement. The report also noted significant cracking at the moldings in the rear addition and front left bedroom.

The home inspection report also stated that the subsurface drains were not tested and were not part of the home inspection report. In the Property Inspection Response, plaintiffs noted a defect with the exterior foundation and requested that the Trustees repair and correct moisture damage, including moisture-damaged doors. Plaintiffs requested that the Trustees make recommended repairs to the roofing and flashing system. Plaintiffs also made requests that the Trustees service and repair the air conditioning system and make recommended repairs for electrical, kitchen, appliance, laundry and pool issues. The parties engaged in further negotiations and the Trustees agreed that, in lieu of any other repairs, the Trustees would repair a leaking gas line in the pool area and replace missing roof shingles. They also agreed to include a dining room chandelier in the sale and to pay $5,000 of plaintiffs' closing costs.

On April 25, 2012, the Trustees conveyed the Property to plaintiffs by a Cash Sale of Property with a waiver of redhibition provision:

Without limiting the generality of the foregoing, the property is being sold "AS-IS, WHERE-IS," without any warranties or representations whatsoever, express or implied, including, without limitation, any warranty or representation with respect to the condition of the property of any of its components, parts or contents or with respect to fitness or suitability of the property or any of its components, parts or contents for Purchasers' intended use or any other particular use, purpose or condition. Purchasers' specifically waive all claims and all causes or rights of action which Purchasers have or may have against Vendors with respect to the property including any and all claims that it may have to rescind or resolve the sale effected thereby or to demand a reduction, set off or diminution of the purchase price or any part thereof based upon the existence of any redhibitory or other vices or defects. Purchasers further waive any claims that Purchasers have or may have in "quanti minoris" or for reduction of the purchase price paid therein, or any other rights provided in Louisiana Civil Code Articles 2520 through 2548, inclusive.
* * * *
This property is being sold in "as is" condition with waiver of redhibition in accordance with Louisiana Civil Code Articles 2520, et seq.

Plaintiffs allege that after the sale, they began renovations to the Property and discovered it contained numerous hidden defects. Plaintiffs' counsel allegedly sent correspondence to the Trustees outlining the alleged defects and asking the Trustees to pay to repair the defects. On September 4, 2012, the Trustees' counsel responded by noting that plaintiffs acknowledged in their letter that they only discovered the alleged defects after they began renovations and were not able to detect the alleged defects through inspections. Defense counsel stated that Ms. Louise Nelson, who previously resided in the Property, was not in a position to know of the alleged defects in the attic and roof, and further stated the Trustees had no knowledge of alleged defects that were not listed on the Property Disclosure.

On October 12, 2012, plaintiffs filed a petition for damages against the Trustees. Plaintiffs claimed that based on the statements in defense counsel's September 4, 2012 correspondence, the Trustees defrauded them by providing inaccurate disclosures on the Property Disclosure. Specifically, plaintiffs alleged the Trustees committed fraud by checking the "no" box rather than the "no knowledge" box on the Property Disclosure when responding as to whether certain features of the Property contained defects. Plaintiffs contend these responses were fraudulent because the Trustees admitted in the September 4, 2012 correspondence that they possessed no knowledge as to whether the property contained defects. Plaintiffs alleged that if the Trustees disclosed they did not have knowledge regarding the condition of the Property, they would have obtained more comprehensive inspections. Plaintiffs further alleged the Trustees provided these false disclosures to induce them into signing a waiver of redhibition and that based on their bad faith and fraud the waiver of redhibition should be void.

On December 10, 2012, the Trustees filed an exception of no cause of action in response to the petition. In the exception, the Trustees argued that plaintiffs failed to state a redhibition claim because they did not allege the Trustees knew of the alleged defects and failed to disclose them to plaintiffs. The trial court granted the exception of no cause of action on March 20, 2013, and plaintiffs appealed the dismissal of their claims.

This Court affirmed the trial court's decision to grant the exception of no cause of action in Williams v. Smith , 13-448 (La. App. 5 Cir. 12/19/13), 131 So.3d 973. Plaintiffs sought further review from the Louisiana Supreme Court, which granted the writ application and reversed the trial court's ruling which granted the exception of no cause of action. Williams v. Smith , 14-164 (La. 4/11/14), 136 So.3d 793. In its decision, the Supreme Court found plaintiffs stated a claim to challenge the validity of the redhibition waiver:

We do not believe that a seller can represent a thing to have no defects in order to procure a waiver of redhibition and then claim that they were not in a position to know whether there were defects or not, as alleged by the plaintiffs, while using the waiver of redhibition to require the buyer to prove actual knowledge of the defect by the seller rather than merely that the thing sold contained a defect which rendered it useless (regardless of the seller's knowledge of same). Sellers cannot avoid their representation of no defects by claiming 'we really didn't know.'
Plaintiffs have specifically alleged that the waiver of redhibition was obtained by fraud, thus it cannot be presumed 'otherwise effective.' Plaintiffs have stated a cause of action to challenge the validity of the waiver and are entitled to litigate this threshold issue, which will determine the proof required of them on their redhibition claim.
Id. at 795.

After conducting discovery, on December 15, 2016, the Trustees filed a motion for summary judgment seeking dismissal of plaintiffs' claims against them on the following grounds:

1) The property disclosure form was completed honestly and truthfully and Plaintiffs have not established any evidence to support their fraud allegation.
2) After obtaining a full inspection of the property and asserting many of the same defects asserted in this case, Plaintiffs reached an agreement with the Trustees to accept certain repairs, $5,000 and a chandelier "in lieu of any other repairs."
3) Based on their inspection reports, Plaintiffs knew or should have known of the alleged defects such that they cannot be considered redhibitory.
4) Plaintiffs cannot establish that they relied upon the disclosure document - a necessary element of their fraud claim.

In their opposition memorandum, plaintiffs argued that summary judgment is not appropriate in fraud cases and that the letter from the Trustees' counsel established fraud on the part of the Trustees.

Plaintiffs also raised new factual allegations and claimed for the first time that the waiver of redhibition should be voided because the Trustees knew of alleged defects in the Property and failed to disclose them to plaintiffs.

The Trustees filed a reply memorandum arguing that plaintiffs failed to provide evidence of fraud and further noted that plaintiffs cannot amend their petition to raise new factual allegations and claims in their opposition memorandum. The Trustees also raised objections based on hearsay, relevance and vagueness, to most of the evidence plaintiffs relied on in support of their opposition. The trial court denied the Trustees' motion for summary judgment without ruling on the evidentiary objections. The Trustees filed an application for supervisory writs with this Court and on May 31, 2017, this Court granted the writ, reversed the trial court's ruling and remanded the matter for the trial court to rule on the Trustees' evidentiary objections in accordance with the requirements of La. C.C.P. art. 966(D)(2). Williams v. Nelson , 17-156 (La. App. 5 Cir. 5/31/17) (unpublished writ disposition).

On remand, the trial court entered a judgment on March 25, 2018, which sustained the majority of the objections raised by the Trustees regarding the evidence presented by plaintiffs based on hearsay grounds. The trial court excluded certain statements contained in Ms. Valobra's answer to Interrogatory No. 17 regarding alleged defects in the Property pointed out by unidentified individuals who worked on the house. The trial court also excluded a similar statement contained in paragraph 13 of Mr. Valobra's affidavit. Finally, the trial court excluded an unauthenticated report prepared by Gurtler Bros. Consultants, Inc., which plaintiffs alleged set forth the alleged hidden defects requiring repair. The trial court denied the Trustees' request to exclude the entirety of Ms. Valobra's response to Interrogatory No. 17 based on relevance and vagueness grounds. The trial court then denied the Trustees' motion for summary judgment for a second time.

DISCUSSION

In their writ application, the Trustees argue the trial court erred by denying their motion for summary judgment because plaintiffs failed to submit evidence to establish the Trustees committed fraud when completing the Property Disclosure and cannot satisfy their burden to prove they relied on the Property Disclosure. They also argue that plaintiffs' attempts to avoid their waiver of warranty is barred by their inspections, demand for repairs and agreement to accept consideration in lieu of repairs.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry , 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

Under La. C.C.P. art. 966(D)(1), the initial burden is on the mover to show that no genuine issue of material fact exists. If 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, action, or defense. The nonmoving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Babino v. Jefferson Transit , 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo . Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

We first review the Trustees' argument that plaintiffs cannot establish the Trustees engaged in fraud in completing the Property Disclosure, which would allow plaintiffs to avoid their waiver of redhibition. As explained above, plaintiffs alleged in their petition that the Trustees committed fraud due to their failure to check the "no knowledge" box on the disclosure form and their resulting failure to disclose that they were not in a position to know whether the property contained any defects. Plaintiffs claimed that if they knew the Trustees had no knowledge regarding the condition of the Property, they would have obtained more comprehensive inspections.

La. C.C. art. 2548 provides that a "buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have." A waiver of the warranty against redhibitory defects is effective under La. C.C. art. 2548 unless the seller commits fraud upon the buyer. Shelton v. Standard/700 Associates , 01-587 (La. 10/16/01), 798 So.2d 60, 64. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1953. Fraud is not actionable "when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill." La. C.C. art. 1954. The circumstances constituting fraud must be alleged with particularity. La. C.C.P. art. 856.

In Shelton, supra , the Louisiana Supreme Court discussed the requirements needed to prove fraud to avoid a waiver of the warranty against redhibitory detects as follows. In sum, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a cause of) the contract. Id. at 64.

The Residential Property Disclosure Act, La. R.S. 9:3196, et. seq. ("RPDA"), sets forth the requirements for completing a "property disclosure document." La. R.S. 9:3196(2) defines a "property disclosure document" as a form "which discloses, at a minimum, known defects in the residential real property."

In completing the form, La. R.S. 9:3198(B)(1) provides:

[t]he seller shall complete the property disclosure document in good faith to the best of the seller's belief and knowledge as of the date the disclosure is completed and signed by the seller. If the seller has no knowledge or information required by the disclosure document, the seller shall so indicate on the disclosure statement and shall be in compliance with this Chapter.
See also Stutts v. Melton , 13-557 (La. 10/15/13), 130 So.3d 808, 812-13.

La. R.S. 9:3198(D)(1) explains that the property disclosure document does not serve as a warranty by the seller and cannot be used by the purchaser as a substitution for inspection or warranties:

(1) A property disclosure document shall not be considered as a warranty by the seller. The information contained within the property disclosure document is for disclosure purposes only and is not intended to be a part of any contract between the purchaser and seller.
(2) The property disclosure document may not be used as a substitute for any inspections or warranties that the purchaser or seller may obtain. Nothing in this Chapter precludes the rights or duties of a purchaser to inspect the physical condition of the property.

Finally, La. R.S. 9:3198(E) provides, in pertinent part, that a seller is not held liable for disclosures provided in a property disclosure document unless he engages in "willful misrepresentations:"

A seller shall not be liable for any error, inaccuracy, or omission of any information required to be delivered to the purchaser in a property disclosure document if either of the following conditions exists:
(1) The error, inaccuracy, or omission was not a willful misrepresentation according to the best of the seller's information, knowledge, and belief.

Therefore, the RPDA requires the seller to disclose "known defects" to the best of his or her information, knowledge and belief.

As explained above, plaintiffs allege in their petition that the Trustees engaged in fraud because they marked that no defects existed in certain areas of the Property and then admitted in correspondence sent by their attorney that they "were never in a position to know of any defects that may have existed in the premises." In their writ application, plaintiffs argue that by checking the "no" box, the Trustees indicated "their specific knowledge that there were no defects in the residence." They further contend that if the Trustees "truthfully advised the Valobras that they really did not know one way or the other whether the home contained hidden defects, then the Valobras would have obtained a more comprehensive home inspection then [sic] the one obtained."

Plaintiffs' arguments fail to recognize that the Property Disclosure required by the RPDA does not provide a guaranty that no defects exist in the property, but rather requires disclosures of known defects to the best of the seller's information, knowledge or belief. La. R.S. 9:3198(D) specifically states a property disclosure document is not a warranty and is not part of any contract between the buyer and seller. In addition, buyers, such as plaintiffs, cannot rely on the property disclosure document as a substitution for inspections. Therefore, plaintiffs cannot use their alleged reliance on the Property Disclosure as an excuse for failing to obtain a comprehensive home inspection or failing to follow the advice of the inspectors to obtain more extensive inspections.

We further find that plaintiffs failed to present evidence to establish the Trustees engaged in fraud by checking the "no" box on the Property Disclosure. In support of their summary judgment motion seeking dismissal of this claim, the Trustees, Robert Allen Nelson and James Garfield Smith II, each provided affidavits addressing the disclosures provided in the Property Disclosure at issue. The Trustees explain that their parents, Louise and Allan Nelson, resided in the Property until Allan passed away in May 2006. Louise continued to reside in the Property until plaintiffs' purchase in April 2012. Both Trustees explained they were very familiar with the condition of the Property and each signed the Property Disclosure honestly and truthfully and to the best of his knowledge. In his affidavit, Robert Allan Nelson explained the basis for his disclosures as follows:

Nelson was very familiar with the Property and its condition where his father lived until his death in 2006 and where his stepmother lived until 2012 when the Property was sold to Plaintiffs. Nelson was involved in assisting his parents in the extensive repairs after Hurricane Katrina. Nelson obtained the assistance of his stepmom in completing the Disclosure Form. Nelson signed the Disclosure Form honestly and truthfully and to the best of his knowledge. To the best of his knowledge, none of the features of the Property for which the "no" box was checked had any defects. Mr. Nelson did not check "no knowledge" because he did in fact have knowledge of these features of the Property. To check "no knowledge" when in fact he had knowledge would not be truthful.

Jerome Garfield Smith similarly stated:

Smith was very familiar with the Property and its condition where his mother lived until 2012 when the Property was sold to Plaintiffs. Smith's mom assisted him in completing the Disclosure Form. Smith signed the Disclosure Form honestly and truthfully and to the best of his knowledge. To the best of his knowledge, none of the features of the Property for which the "no" box was checked had any defects. Smith did not check "no knowledge" because he did in fact have knowledge of these features of the Property. To check "no knowledge" when in fact he had knowledge would not be truthful.

In their opposition to the summary judgment motion and writ application, plaintiffs argue that defense counsel's September 4, 2012 correspondence constituted a statement against interest that the Trustees should have checked the "no knowledge" box on the disclosure form and provides evidence of fraud. Specifically, plaintiffs point to the phrase in the letter stating the Trustees "had no knowledge of any alleged defects that were not disclosed on the property disclosure form."

In their reply memorandum, the Trustees explain that plaintiffs mischaracterize the quoted language from the correspondence by placing it out of context. They note that the letter does not state the Trustees were not in a position to know whether or not the premises had defects. Rather, the letter states the Trustees did not know about the alleged hidden defects which plaintiffs outlined in their correspondence and allegedly uncovered after they began renovations on the Property.

After reviewing the entirety of the September 4, 2012 correspondence, we find it does not create a genuine issue of material fact regarding the issue of whether the Trustees engaged in fraud by checking the "no" box instead of the "no knowledge" box. The entire paragraph of defense counsel's letter provides as follows:

Further, your letter acknowledges that the alleged defects were not revealed until your clients began their renovation and were not detected by the inspector.
Thus, the Trust does not understand your contention that the Trusts should have disclosed the alleged defects in the property disclosure form. As you may know, Ms. Louise Nelson, a widow, was living at the Property prior to this sale and she was in no position to know of the alleged defects which you claim existed (most of which were in the attic and roof). Certainly the Trusts had no knowledge of any alleged defects that were not disclosed on the property disclosure form.

Clearly, the letter does not state the Trustees had no knowledge regarding the condition of the property, but rather they had no knowledge of the defects plaintiffs claimed to uncover during their renovation project. Accordingly, after conducting a de novo review of the evidence presented by the parties, we find the trial court erred by failing to dismiss plaintiffs' fraud claim alleged in their petition for damages.

As noted above, plaintiffs also attempted to amend their petition in their opposition memorandum to change course from their allegations that the Trustees had no knowledge regarding the condition of the Property to assert new factual allegations that the Trustees knew or should have known of the alleged defects and, therefore, summary judgment was not appropriate. Because the trial court sustained the majority of the Trustees' objections to the documents plaintiffs attached to their opposition memorandum, the only evidence plaintiffs introduced in support of their allegations that defects existed in the Property and that plaintiffs knew or should have known of the defects are the following answers plaintiffs provided in response to an interrogatory request:

(1) Whenever it rained moderately, there was standing water around the house which would seep into the house.
* * *
(4) After the sale, plaintiffs found several doors that were stored in the rear of the property which had been changed out since Hurricane Katrina due to water damage.
(5) When the carpet was removed, plaintiff observed that caulking was in place to attempt to cosmetically repair water intrusion problems.

The Trustees argue that plaintiffs cannot allege wholly new factual allegations and legal grounds for recovery in a memorandum in opposition to a summary judgment motion. The Trustees further argue that these allegations are vague as to the timing, location and extent of alleged damages and insufficient to establish the Trustees knew of alleged defects in the Property. They also note that all of these issues relate to the alleged defect in the exterior foundation and alleged moisture intrusion problems, which plaintiffs requested the Trustees repair and then accepted a cash payment and chandelier in lieu of the repairs.

We agree with the Trustees' objection that plaintiffs cannot allege facts to support a new fraud claim in a memorandum in opposition to a motion for summary judgment. A memorandum is not recognized as a pleading. See La. C.C.P. arts. 852, 856, and 891 ; see Vallo v. Gayle Oil Co. , 94-1238 (La. 11/30/94), 646 So.2d 859, 865 ; see also Bach v. Bd. of River Port Pilot Comm'rs , 15-764 (La. App. 5 Cir. 5/12/16), 193 So.3d 355, 363-64 (finding that the plaintiff failed to allege factual allegations in his original or amending petitions to support claims raised for the first time in arguments opposing a summary judgment motion.)

In addition, this case is over six years old. Plaintiffs were provided with more than ample opportunity to present admissible evidence to establish genuine issues of material fact exist with respect to their fraud claims against the Trustees. Accordingly, to the extent the trial court denied the summary judgment motion based on facts regarding the Trustees' knowledge of redhibitory defects alleged for the first time in plaintiffs' opposition memorandum, we find it was improper for the trial court to consider these facts. Having found the trial court erred in denying the summary judgment motion, we pretermit a discussion of the Trustees' remaining assignments of error.

CONCLUSION

Based on the foregoing, we reverse the trial court's denial of the Trustees' motion for summary judgment, grant the Trustees' motion and dismiss all of plaintiffs' claims against the Trustees, with prejudice.

REVERSED; SUMMARY JUDGMENT GRANTED AND PLAINTIFFS' CLAIMS DISMISSED WITH PREJUDICE

      La. C.C.P. art. 966(H) provides:
      On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.

      In addition to signing the act of sale, the parties also separately signed beneath the language containing the waiver language.

      In 2012, when the Trustees executed the Property Disclosure, La. R.S. 9:3196(1) provided that:
      "Known defect" means a condition found within the property that was actually known by the seller and that results in any of the following:
      (a) Has a substantial adverse effect on the value of the property.
      (b) Significantly impairs the health or safety of future occupants of the property.
      (c) If not repaired, removed, or replaced, significantly shortens the expected normal life of the premises.

      Pursuant to La. C.C. art. 2548, a buyer is not bound by an exclusion or limitation of a warranty when the seller has declared that the thing has a quality that he knew it did not have. Schmuck v. Menees, 13-557 (La. App. 5 Cir. 12/12/13), 131 So.3d 277, 281.

      A seller owes no warranty for defects that were known to the buyer at the time of the sale or that should have been discovered by a reasonably prudent buyer. La. C.C. art. 2521.


author: GRAVOIS, J.

text:
    William MELLOR, et al. v. The PARISH OF JEFFERSON
    NO. 18-CA-390
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, WILLIAM MELLOR, ET AL, Anthony S. Maska, Joseph R. McMahon, III, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, JEFFERSON PARISH SCHOOL BOARD AND ONGO LIVE, INC., E. John Litchfield, Kathy L. Torregano, Michael J. Marsiglia, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   GRAVOIS, J.

Defendants/appellants, the Jefferson Parish School Board (the "School Board") and ONGO Live, Inc. ("ONGO"), appeal a trial court judgment dated April 3, 2018 which granted in part and denied in part a motion for partial summary judgment filed by plaintiffs, William Mellor, et al. For the following reasons, we find that there are genuine issues of material fact outstanding at this time regarding permission to enforce a Jefferson Parish ordinance within the geographical boundaries of the incorporated municipalities of Jefferson Parish. Accordingly, we reverse the partial grant of summary judgment in favor of plaintiffs and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, William Mellor, et al , represent a class of persons who received civil traffic tickets for allegedly violating the Jefferson Parish School Bus Safety Enforcement Program ("SBSEP"), codified in Parish of Jefferson Code of Ordinances, Chapter 36, article XII, § 36-320, et seq. (the "Ordinance"), enacted on or about October 29, 2008, pertaining to the overtaking and passing of a school bus that has activated its visual signals. Plaintiffs filed this class action suit on March 16, 2012, seeking a declaration that the Ordinance is unconstitutional and an order for defendants to immediately return all money (fees and fines) collected via enforcement of the SBSEP.

At issue in this appeal, plaintiffs moved for partial summary judgment on October 19, 2017 against the School Board, ONGO, and the Jefferson Parish Sheriff's Office (the "Sheriff's Office"). The School Board and ONGO filed a joint opposition to the motion for partial summary judgment; the Sheriff's Office filed its own opposition. The matter came on for a hearing on March 14, 2018. In a judgment dated April 3, 2018, the trial court:

(1) granted summary judgment in favor of plaintiffs on the part of the motion which sought to have all SBSEP tickets issued for violations occurring within the incorporated Jefferson Parish municipalities of the City of Gretna, the City of Harahan, the City of Kenner, and the City of Westwego (collectively "the Cities") declared to have been "issued illegally";
(2) denied summary judgment on the part of the motion which sought to have the SBSEP tickets issued in the adjoining parishes of Orleans and St. Charles declared to have been "issued illegally"; and
(3) denied summary judgment on the part of the motion in which plaintiffs sought immediate return of the SBSEP fees and fine monies alleged to have been "illegally collected."

The School Board and ONGO moved for a devolutive appeal, which was granted on June 6, 2018; the Sheriff's Office did not, however, appeal the judgment. Appellants designated the contents of the appellate record as per La. C.C.P. art. 2128. On June 7, 2018, appellants moved to have the April 3, 2018 judgment certified as immediately appealable per La. C.C.P. art. 1915(B)(2). The motion was granted on June 11, 2018.

On appeal, appellants argue that the trial court erred in relying on State v. Meche , 98-327 (La. App. 3 Cir. 12/16/98), 724 So.2d 847, to partly grant the motion for partial summary judgment, arguing that case did not make a constitutionality argument, and is factually distinguishable and legally unpersuasive. Appellants also argue that the motion for partial summary judgment should have been denied regarding whether the SBSEP tickets were issued illegally within the Cities, because the Parish of Jefferson, the Louisiana Attorney General and/or the Cities are indispensable parties. Finally, appellants argue that the partial summary judgment granted against them in favor of plaintiffs is in error because it was co-defendant the Sheriff's Office who was responsible under the SBSEP for enforcement of the ordinance, whereas defendants the School Board and ONGO merely handled administration of the SBSEP program, as specified by the Ordinance.

ANALYSIS

This appeal concerns a trial court judgment that granted in part and denied in part a motion for partial summary judgment. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co. , 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger , 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 352 ; Sarasino v. State Through Department of Public Safety and Corrections , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 927. 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. Muller v. Carrier Corp. , 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

To their motion for partial summary judgment, plaintiffs attached: (1) a copy of the Ordinance; (2) computer generated lists ostensibly of tickets issued for violations of the Ordinance by City location, the VIN number of the offending vehicle, and the amount of the fine paid; and (3) ONGO's responses to plaintiffs' requests for admissions.

The School Board and ONGO filed a joint memorandum in opposition to the motion for partial summary judgment, arguing that the Parish of Jefferson and the Cities were indispensable parties to the matter as a whole, that the Sheriff's Office was the proper party to address the enforcement of the SBSEP, and that School Board and ONGO merely handled the administration of the "system" and notification of the violations and played no role in reviewing the evidence or deciding whether a violation should be issued. They attached the following exhibits to their opposition: (1) the judgment of July 29, 2016 dismissing the Parish of Jefferson from this suit; (2) the reasons for judgment dated July 29, 2016; and (3) a copy of the Ordinance.

Applicability of State v. Meche

On appeal, appellants argue that the trial judge erred in relying on the case of State v. Meche , supra , to support plaintiffs' argument that enforcement of the ordinance in the Cities was illegal. In their motion for partial summary judgment, plaintiffs argued that the Cities, being independent and autonomous legal entities distinct from the Parish, had given neither the Parish of Jefferson nor the School Board "permission" to enforce a parish ordinance within their municipal boundaries, as evidenced by ONGO's responses to plaintiffs' requests for admissions. They argued that without express permission from the Cities to enforce the ordinance within their municipal borders, appellants were without authority to cite violators within the Cities' boundaries, and the tickets for violations occurring within those boundaries were therefore issued illegally. Plaintiffs cited Article VI, Section 2 of the Constitution of the State of Louisiana of 1974, the Cities' home rule charters, La. R.S. 33:361, the Jefferson Parish Charter, Sections 2.01 and 6.03, and State v. Meche , in support of their argument.

ONGO's responses to plaintiffs' requests for admissions, which were attached to plaintiffs' motion for partial summary judgment, admit that defendants did not seek the Cities' permission to enforce the ordinance within their municipal boundaries. This is the only evidence in this designated record which addresses whether the Cities gave "permission" to enforce the ordinance within their municipal boundaries. Appellants argue that the ordinance did not require such permission.

La. R.S. 33:361 provides, in pertinent part:

Except as otherwise provided in this Part, a municipality shall be vested with all powers, rights, privileges, immunities, authorities, and duties heretofore possessed in accordance with all constitutional and statutory provisions with respect thereto. A municipality is further authorized to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs not denied by law.

In Meche , the issue before the court was whether the unified City-Parish government of Lafayette could enforce a parish criminal ordinance within the municipal boundaries of Carencro, an incorporated municipal government specifically exempted by statute ( La. R.S. 33:1391 ) from the unified City-Parish government of Lafayette. The City of Carencro had enacted a municipal ordinance regulating the same behavior as the parish ordinance. The court, after considering constitutional provisions ( La. Const. Article VI, Sections 20 and 44 ), as well as La. R.S. 33:1324 and 33:361, and Attorney General opinions, concluded that "the powers of the parishes, municipalities, and other political subdivisions of the state are otherwise separate unless there is an agreement to act jointly or in cooperation with another subdivision." Meche , 724 So.2d at 852. The court found no such agreement existed in that case. Further, the court found that no statute gave concurrent exercise of the police power to the parish and municipalities, other than La. R.S. 33:1324. The court held that because the City-Parish government of Lafayette excluded the municipality of Carencro, it had no authority to exercise its legislative powers within the territory of Carencro, and thus had no authority to prosecute charges alleging the violation of its City-Parish ordinances arising within the municipality of Carencro, absent an agreement between the two political subdivisions. The court further held that "it is not necessary that a conflict exist between parish and municipal ordinances in order for the parish to be denied jurisdiction within an incorporated municipality; a parish simply cannot enforce its ordinances upon the citizens of an incorporated municipality." Id. at 851.

While Meche is pertinent, it is not wholly on point with the facts in the present matter. In the present case, at issue is the enforcement of a parish civil ordinance within the territorial boundaries of the Cities where the record evidences no explicit agreement between the Parish (and the School Board and/or the Sheriff's Office) to cooperatively enforce the Ordinance. In Meche, however, both the Lafayette unified government and Carencro had similar ordinances prohibiting the same conduct. Here, this record is devoid of any examination of whether any or all of the Cities may have enacted concurrent school bus ordinances, and whether the existence or nonexistence of concurrent ordinances might be an issue of material fact to be considered by the trial court in its analysis.

Also dissimilar to the facts in Meche , and perhaps pertinent to a complete analysis of the matter at issue, is the fact that the School Board has parish-wide jurisdiction over public schools located throughout the parish, and that none of the Cities operates schools independently of the Parish. The record is also devoid of any information regarding the contractual relationships, if any, between the School Board and the buses that transport the students parish-wide, and whether such relationships impact the issue of permissions to enforce the Ordinance within the Cities. We find that the single respective responses to the requests for admissions concerning each of the Cities, in light of these considerations, is inadequate by themselves to conclusively find that the Cities did not give permission to appellants to enforce the Ordinance within their geographical boundaries. At issue also is whether the Cities tacitly or implicitly gave appellants permission to enforce the Ordinance within their geographical boundaries.

Considering the foregoing, we find that plaintiffs/appellees, as movers for partial summary judgment, did not carry their burden of showing that there are no genuine issues of material fact outstanding, and thus we find that they are not entitled to summary judgment as a matter of law at this time. Accordingly, the partial summary judgment that was granted in favor of plaintiffs/appellees is reversed and the matter remanded for further proceedings.

In light of our reversal in favor of appellants of the trial court's grant of partial summary judgment and our remand of the matter for further proceedings, we pretermit review and discussion of appellants' remaining arguments.

ISSUES RAISED IN APPELLEES' BRIEF

Finally, we note that in brief, appellees contend that the trial court erred when it denied that portion of the motion for partial summary judgment seeking immediate return of the fees and fines they paid to the plaintiffs. Appellees have neither filed their own appeal nor answered the School Board and ONGO's appeal as per La. C.C.P. art. 2133, and thus are precluded from seeking modification or reversal of the judgment on appeal. See Trosclair v. Becnel , 14-676 (La. App. 5 Cir. 9/9/14), 150 So.3d 324, 328. In any event, as this Court herein reverses the trial court's April 3, 2018 grant of partial summary judgment in favor of plaintiffs, this issue is now moot on appeal.

CONCLUSION

For the foregoing reasons, we reverse the trial court's April 3, 2018 grant of partial summary judgment in favor of plaintiffs and remand for further proceedings.

JUDGMENT GRANTING SUMMARY JUDGMENT REVERSED; MATTER REMANDED

      The appellate record was designated by appellant, the School Board. The only petition contained in the designated record is the original petition filed in 2012, naming only the Parish of Jefferson as a defendant. The designated record does not evidence a supplemental petition adding appellants as defendants. As gleaned from the designated record and briefs in this matter, defendant/appellant ONGO appears to be the third-party administrator of the SBSEP program hired by the School Board.
      According to the pleadings and the designated record, at some point in the proceedings, class certification was granted, but that proceeding is not contained in this designated record.

      The designated record does not contain a transcript of the hearing on the motion for partial summary judgment.

      The designated record suggests that the class is pursuing those claims in other venues.

      Appellants attached a copy of the judgment to their brief, but failed to attach a copy of the trial court's Reasons for Judgment, in violation of URCA, Rule 2-12.4(B)(1). Appellees, however, attached to their brief the written Reasons for Judgment in accordance with URCA, Rule 2-12.5(8).

      The record fails to evidence whether appellants served upon appellees, with their notice of designation, a concise statement of the points on which they intended to rely, as per La. C.C.P. art. 2129.

      Thus, appellants appealed the April 3, 2018 judgment prior to it being certified as final and immediately appealable. However, the subsequent certification of the judgment as final and immediately appealable cured the appeal's prematurity. See Regions Bank v. Questar Expl. & Prod. Corp. , 50,211 (La. App. 2 Cir. 1/13/16), 184 So.3d 260, 263, citing Overmier v. Traylor , 475 So.2d 1094 (La. 1985).

      The designated record shows that defendant the Sheriff's Office also opposed the motion for partial summary judgment, asserting that the Sheriff's Office was immune from liability for enforcing the SBSEP as written, and that in fact, the Sheriff's Office is authorized by law to enforce the SBSEP ordinance, and finally that plaintiffs were not entitled to relief because plaintiffs admitted that they were in violation of the SBSEP ordinance as well as state law. However, the Sheriff's Office is not an appellant herein.

      Appellants argue that Meche does not support plaintiffs' position that the Ordinance is unconstitutional. However, the constitutionality of the Ordinance was not before the trial court in the motion for partial summary judgment.

      Because the appellate record fails to contain a transcript of the hearing on the motion for partial summary judgment, this Court must surmise that the trial court accepted arguments made by the plaintiffs in the motion for partial summary judgment, and that no party objected to the evidence submitted by any other party for the purposes of the motion for partial summary judgment.

      The Cities' home rule charters are not included in this designated record.