author: AMY, Judge.

text:
    Lynton O. HESTER, IV v. BURNS BUILDERS, et al.
    17-824
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2018
    Lauren Gay Coleman, 2011 MacArthur Drive, Alexandria, LA 71301, (318) 449-9857, COUNSEL FOR PLAINTIFF/APPELLANT: Lynton O. Hester, IV
    Lynton O. Hester, IV, 2517 Avenue B, Alexandria, LA 71301, (318) 442-5667, IN PROPER PERSON
    Wade T. Visconte, All American Law Firm of Louisiana, LLC, 401 Edwards Street, # 2100, Shreveport, LA 71101, (318) 918-1245, COUNSEL FOR DEFENDANTS/APPELLEES: Burns Builders, Malcolm L. Burns
    Karl H. Schmid, Degan, Blanchard & Nash, 400 Poydras Street, Suite 2600, New Orleans, LA 70130, (504) 529-3333, COUNSEL FOR DEFENDANT/APPELLEE: Gemini Insurance Company
    Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
   AMY, Judge.

The parties entered into a contract for the construction of a house. Citing dissatisfaction with the quality of the work, the owner stopped making payments to the contractor and eventually filed suit, requesting specific performance and, in the alternative, damages. The contractor and the contractor's insurance company filed a motion for partial summary judgment, seeking dismissal of the owner's claims and dissolution of the contract as to any future performance owed. The trial court granted the motion for partial summary judgment, and the owner now appeals. For the following reasons, we affirm.

Factual and Procedural Background

On December 29, 2005, Lynton O. Hester, IV, entered into a "Turnkey Contract" with Malcolm L. Burns d/b/a Burns Builders for the construction of a new home at a price of $303,287.00. By addendum, the parties amended the contract on January 11, 2006 to reflect a price of $322,287.00. In March 2006, financing of the home was closed, and construction began shortly thereafter. According to the contract, "progress payments" or "draws" would be made upon completion of certain tasks. Mr. Hester made the first payment in the amount of $18,447.46 on March 16, 2006, and he made a second payment in the amount of $96,686.10 on April 20, 2006. On June 22, 2006, Mr. Hester made a third payment in the amount of $88,000.00.

However, issues subsequently arose between the parties concerning the trim stage of construction. Mr. Burns contended that Burns Builders had completed the trim phase of construction, and on May 10, 2007, Mr. Burns sent a letter to Mr. Hester demanding the payment due under the contract upon completion of the trim stage. In response, Mr. Hester refused to tender payment, citing dissatisfaction with the quality of the workmanship. The parties were unable to reach an agreement, and Mr. Hester ultimately filed a "Petition for Breach of Contract and Damages." In the petition, Mr. Hester asserted "that the work that has been performed is sub-standard" and alleged "defects" in various rooms of the house. Mr. Hester further alleged in the petition that he had to borrow money to finance the construction of the home; pay monthly interest on said loan; and rent an apartment to live in during the construction. He requested specific performance or, in the alternative, for judgment in an amount to compensate him for the damages incurred as a result of the alleged breach of contract.

Thereafter, Burns Builders and Mr. Burns d/b/a Burns Builders (hereafter collectively referred to as "Burns Builders") answered Mr. Hester's petition and filed a reconventional demand. In the reconventional demand, Burns Builders requested all sums owed under the contract, asserting that it had completed the trim work and that Mr. Hester had breached the contract by refusing to pay for the completion of the trim work and by continuing to claim that the work was defective. Burns Builders later filed a third party demand against Gemini Insurance Company (hereafter referred to as "Gemini"), Brown's Lumber & Supply, LLC, and A Plus Drywall.

On April 3, 2008, the subject property was foreclosed upon, and the property was subsequently purchased by William Barron at a sheriff's sale. Thereafter, Burns Builders filed a motion for summary judgment, requesting dismissal of the plaintiff's claims; dissolution of the contract as to any future performance owed by Burns Builders; and an award of the contractual sum of $96,686.10 with interest from the date of demand. Mr. Hester filed an opposition to the motion for summary judgment, attaching an affidavit and report from his expert, Philip Beard. The affidavit stated that Mr. Beard is a registered professional engineer, licensed in the State of Louisiana. In the affidavit, Mr. Beard explained that he completed an inspection of the subject property and prepared a formal report based upon that inspection. In pertinent part, Mr. Beard's affidavit states: "In my opinion, the garage had the potential for future settlement caused by improperly compacted backfill.... Based on my inspection, there were numerous areas of construction and finish of the residence which did not meet the minimum standards or quality of workmanship as required by the contract."

Following a hearing, the trial court granted Burns Builders' motion for summary judgment. The "Partial Final Judgment" dissolved the contract as to future performance; granted Burns Builders' reconventional demand, ordering Mr. Hester to pay $96,686.10 plus annual interest to Burns Builders; and dismissed, with prejudice, Mr. Hester's claims for specific performance and damages. On appeal, that judgment was reversed as follows:

Burns filed a reconventional demand asserting that payment was owed pursuant to the contract. In order for Burns to succeed on his claim, he would have to prove that payment was owed. Under paragraphs five and ten [of the contract], Hester had the right to withhold payment if he believed the construction was defective. Whether there were defects is a question of fact for the trial court to determine. The scope of damages is another determination for the fact finder. If there were no defects, Burns would be entitled to payment. Hester's assertion that there were damages presents a question of material fact that should have been addressed by the trial court. Accordingly, summary judgment was inappropriate.

Hester v. Burns Builders , 11-1537, p. 4 (La.App. 3 Cir. 6/6/12), 92 So.3d 641, 643-44, writ denied , 12-1576 (La. 10/12/12), 98 So.3d 875.

On December 1, 2016, Burns Builders and Gemini filed a motion for partial summary judgment, requesting that the trial court dismiss Mr. Hester's claims and dissolve the contract as to any future performance owed by Burns Builders. In a supporting memorandum, they argued that a contractor's liability for failure to properly perform a building contract is governed by La.Civ.Code art. 2769 and that, in interpreting La.Civ.Code art. 2769, the courts have held that the owner is entitled to a reduction in price by the amount necessary to perfect or complete the work. Burns Builders and Gemini asserted that Mr. Hester had not demonstrated that he incurred costs to correct the alleged defects. Further, they contended that Mr. Hester no longer had to ability to prove his "damages" because he could not obtain bids or authorize repairs after he lost ownership of the house when it was foreclosed upon and sold at a sheriff's sale. Mr. Hester did not file an opposition to the motion for summary judgment.

At a hearing on the motion for summary judgment, Mr. Hester moved for a continuance, which the trial court denied. On March 30, 2017, the trial court issued a "Partial Final Judgment," which granted the motion for summary judgment; dismissed Mr. Hester's claims; and reserved Burns Builders' reconventional demand and third party demand. Mr. Hester appeals the judgment, asserting the following assignment of error: "The trial court erred in granting Summary Judgment in favor of Burns Builders and dismissing the claims of the Appellant with prejudice[.]"

Discussion

As discussed above, Mr. Hester asserts that the trial court erred in granting the motion for summary judgment and dismissing his claims with prejudice. In briefing to this court (exhibit citation omitted), he argues:

[Mr.] Hester alleged several items of damages in his petition in addition to seeking specific performance. Further, he specifically testified in his deposition as to the additional expenses he incurred including paying interest on the construction loan; paying for dirt work; paying attorney's fees for the closing of the construction loan and paying for the lot where the house was being built[.]

Louisiana Code of Civil Procedure Article 966 is titled "Motion for summary judgment; procedure" and provides, in pertinent part:

[A.] (3) 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.
....
D. (1) 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.

An appellate court reviews a trial court's grant of summary judgment under the de novo standard of review, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc. , 06-1827 (La. 5/22/07), 958 So.2d 634.

As discussed above, Mr. Hester's petition alleged both breach of contract and defective workmanship claims, requesting specific performance or, in the alternative, damages. Under La.Civ.Code art. 1986, an obligee has a right to specific performance for breach of contract unless it is impossible; greatly disproportionate in cost to the actual damage caused; no longer in the obligee's interest; or of substantial negative effect upon third parties. Whitbeck v. Champagne , 14-245 (La.App. 3 Cir. 10/1/14), 149 So.3d 372. As previously discussed, the record indicates that the property at issue herein was foreclosed upon and sold at a sheriff's sale, thus precluding the possibility of specific performance in this case.

Regarding Mr. Hester's request for damages, La.Civ.Code art. 2769 governs a contractor's liability for non-compliance with a contract and states:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

In discussing La.Civ.Code art. 2769, a panel of this court has explained:

According to La.Civ.Code art. 2769 and cases interpreting it, the proper measure of damages caused by a breach of a contract to build is what it will take to place the entity who contracted for the work in the position it deserved to be in when the project was completed. Austin Homes, Inc. v. Thibodeaux , 01-1282, 01-1283 (La.App. 3 Cir. 5/8/02), 821 So.2d 10, writ denied , 02-2324 (La. 11/15/02), 829 So.2d 436. To establish a contractor's liability for damages due to defective workmanship, the owner must prove: (1) the existence and nature of the defects; (2) that the defects are due to faulty materials or workmanship; and (3) the cost of repairing the defects. Regions Bank v. Ark-La-Tex Water Gardens, L.L.C. , 43,604 (La.App. 2 Cir. 11/5/08), 997 So.2d 734, writ denied , 09-16 (La. 3/13/09), 5 So.3d 119.
The owner has the burden of proving each element of his claim by a preponderance of the evidence. Id. If the owner meets the burden of proof, the owner is entitled to the cost of repairs necessary to convert an unsound structure to a sound one, or the amount paid to remedy any defect. Nicholson & Loup, Inc. v. Carl E. Woodward, Inc. , 596 So.2d 374 (La.App. 4 Cir.), writs denied , 605 So.2d 1098 (La.1992) (citing Manzanares v. Am. Int'l Forest Prods., Inc. , 389 So.2d 1142 (La.App. 3 Cir.), writ denied , 395 So.2d 811 (La.1980) ). The remedy is to reduce the contract price in an amount necessary to complete the work or to correct the defective work according to the terms of the contract. Lewis v. La Adrienne, Inc. , 44,602 (La.App. 2 Cir. 8/19/09), 17 So.3d 1007.

Maxwell v. Cayse , 10-680, p. 3 (La.App. 3 Cir. 12/8/10), 54 So.3d 118, 121.

Based on the foregoing, to succeed at trial on his claim for damages, Mr. Hester would have to prove by a preponderance of the evidence: the existence and nature of the defects; that the defects were due to faulty materials or workmanship; and the cost of repairing the defects. Maxwell , 54 So.3d 118. Regarding the cost of repairing the defects, after Burns Builders and Gemini pointed out the lack of factual support for that element of Mr. Hester's claim in their motion for summary judgment, the burden of proof then shifted to Mr. Hester to show that he would be able to meet his burden at trial. See La.Code Civ.P. art. 966(D)(1).

As discussed above, Mr. Hester argues in his brief to this court that he "alleged several items of damages in his petition in addition to seeking specific performance." Mr. Hester further asserts that he "specifically testified in his deposition as to the additional expenses he incurred including paying interest on the construction loan; paying for dirt work; paying attorney's fees for the closing of the construction loan and paying for the lot where the house was being built[.]" However, these alleged expenses do not establish "the cost of repairing the defects." Maxwell , 54 So.3d at 121.

Moreover, Mr. Hester testified at a deposition and was asked whether he had "contacted any contractors about going out and completing the work or repairing what [he] deemed to be construction defects" and whether he "ever obtain[ed] any bids or estimates from anybody to go back and address [his] concerns in terms of the work that was performed[.]" Mr. Hester answered "No" to both questions. Review of the record in its entirety reveals that Mr. Hester has not submitted evidence establishing the cost of repairing the alleged defects. Maxwell , 54 So.3d 118. Accordingly, Mr. Hester has failed "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law."

La.Code Civ.P. art. 966(D)(1). Accordingly, we affirm the trial court's grant of summary judgment.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court, granting the motion for summary judgment; dismissing Lynton O. Hester IV's claims; and reserving the reconventional demand and third party demand of Burns Builders and Malcolm L. Burns d/b/a Burns Builders. All costs of this proceeding are assessed against Lynton O. Hester, IV.

AFFIRMED.

Cooks, J., concurs in the result.

      The addendum provides:
      The incremented draws will change as follows:
      Complet[ion] of Slab $96,686.10 Construction Black In $96,686.10 Complettion [sic] of Trim $96,686.10 Completeton [sic] of Home $32,228.70

      We note that a panel of this court issued a rule ordering the plaintiff-appellant, to show cause, by brief only, why the appeal should not be dismissed for having been taken from a partial final judgment that had not been designated as immediately appealable pursuant to La.Code Civ.P. art. 1915(B). In Hester v. Burns Builders , 17-824, pp. 4-5 (La.App. 3 Cir. 11/29/17), 2017 WL 5949234 (unpublished opinion), a panel of this court recalled the rule and maintained the appeal, explaining:
      Following the reasoning and holding set forth by this court in Weeks [v. SunStream, Inc. , 09-706 (La.App. 3 Cir. 2/10/10) ], 30 So.3d 1163, [writ denied , 10-0577 (La. 6/25/10), 38 So.3d 337,] we find that the judgment at issue in the instant case does not constitute a partial judgment under La.Code Civ.P. art. 1915(B). Rather, we find that the March 30, 2017 judgment, which dismisses Plaintiff's principal demand, falls under La.Code Civ.P. art. 1915(A)(1) and (3). Pursuant to 1915(A)(1) and (3), even if all of the claims in a case have not been adjudicated, a judgment is deemed final if it "[d]ismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors" or "[g]rants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E)." Louisiana Code of Civil Procedure Article 966(E), in pertinent part, provides that "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties." In the instant case, the March 30, 2017 judgment falls under La.Code Civ.P. art. 1915(A)(3) because it grants Defendant's motion for summary judgment and disposes of Plaintiff's principal demand in its entirety, rather than granting summary judgment as to particular issues as contemplated by La.Code Civ.P. art. 966. We find that the judgment also falls [sic] 1915(A)(1) because it dismisses Plaintiff from the lawsuit in his capacity as Plaintiff. This finding is not affected by the fact that the Plaintiff remains in the lawsuit in the capacity of the Defendant-in-Reconvention. See Weeks , 30 So.3d 1163.

      Louisiana Civil Code Article 1986 is titled "Right of the obligee" and provides:
      Upon an obligor's failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
      Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas D. BAYER and Laura D. Kelley v. STARR INTERNATIONAL CORPORATION, Cimarron, LLC, Entergy New Orleans, Inc., Entergy Louisiana, LLC and Entergy Gulf States Louisiana, Inc.
    Thomas D. Bayer and Laura D. Kelley v. Starr International Corporation, et al.
    NO. 2017-CA-0948 NO. 2017-CA-0257
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 2, 2018
    David W. Bernberg, 228 St. Charles Avenue, Ste. 501, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    L. Peter Englande, Jeffrey E. McDonald, Randell E. Treadaway, TREADAWAY BOLLINGER, LLC, 406 North Florida Street, Suite 2, Covington, LA 70433, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
    Judge Joy Cossich Lobrano The sole issue presented for appellate review concerns the recovery for emotional distress and mental anguish resulting from fire damage to property. After reviewing the record and applicable law, we affirm in part, reverse in part, and remand the remaining issue to the district court for further proceedings.
    This litigation arises out of a fire that occurred at a house owned by plaintiff/appellant, Thomas D. Bayer, at 7418-7422 Maple Street in New Orleans, Louisiana. On April 23, 2014, employees of Cimarron Underground, Inc. ("Cimarron"), were attempting to switch out a gas meter underneath the house when they accidently started a fire. Neither Bayer nor Laura D. Kelley, also plaintiff/appellant, and a resident of the house, was present at the property at any time during the fire. Bayer was at Tulane University's Riley Center while Kelley was at Tulane's Elmwood campus.
    By the time Bayer and Kelley returned to the house, the fire had been extinguished, however, Bayer testified "lots of smoke" was still present. Bayer stated that minor damage to the asbestos siding on the house was visible. He opened the front door to let himself and firefighters into the house. Inside he found small particles of ash, referred to by him as soot or ash. Kelley was also able to access the house after the incident. Kelley admitted in her deposition that she did not lose any items in the fire, and left the property before emergency personnel dispersed. Plaintiffs had complete access to the house after the fire and during renovations.
    Plaintiffs filed suit against Cimarron, Starr Indemnity & Liability Company, Entergy New Orleans, Inc., Entergy Louisiana, L.L.C., and Entergy Gulf States Louisiana, Inc. in April 2015. On April 27, 2016, the defendants filed a motion for summary judgment seeking to dismiss the claims for emotional distress asserted by the plaintiffs. The motion was heard on August 12, 2016 and the motion for summary judgment was granted by the district court on September 26, 2016.
    Plaintiffs filed a motion for new trial on September 29, 2016, which was denied on December 6, 2016. Plaintiffs appealed the denial of their motion for new trial. On August 15, 2017, this court found that the prior judgement lacked the necessary decretal language and remanded the matter to the district court. The district court signed a new judgment on October 10, 2017, granting defendants' motion for summary judgment and denying plaintiffs' motion for new trial. Plaintiffs have appealed this most recent judgment.
    In its reasons for judgment, the district court found that:
    Thomas Bayer did not witness the destruction of his home, did not take medication, or seem unusually upset. Thomas Bayer alleged high blood pressure, but such had already manifested itself prior to the incident. Thomas Bayer states he is going to take a medical examination to determine if his tinnitus is due to the incident. However, doctors in previous medical examination of Thomas Bayer did not provide that the tinnitus is a result of the incident.
    Laura Kelley was not nearby or present at the incident and Thomas Bayer only has the usual worry and inconvenience of damage to his property.
    The standard of review of the granting of a summary judgment is de novo. This court discussed the standard of review for summary judgment in Ducote v. Boleware , 15-0764, p. 6 (La.App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied , 16-0636 (La. 5/20/16), 191 So.3d 1071, as follows:
    Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by district courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
    Damages are generally awarded in property damages cases when the property is damaged by: (1) an intentional or illegal act; (2) an act for which the tortfeasor will be strictly or absolutely liable; (3) acts constituting nuisance; or (4) acts occurring when the owner is present or at the time, or shortly after, damage was negligently inflicted and suffers psychic trauma as a result. See Williams v. City of Baton Rouge, 98-1981, p. 15 (La. 4/13/99), 731 So.2d 240, 250 n. 5. See also Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[6] (2d ed. 2004). "The jurisprudence...has limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual worry or anxiety attendant to property damage." Smith v. University Animal Clinic, Inc., 09-745, pp. 1-2 (La.App. 3 Cir. 2/10/10), 30 So.3d 1154, 1156, writ denied, 10-0566 (La. 5/28/10), 36 So.3d 247 (quoting Doerr v. Mobil Oil Corp., 04-1789, p. 9 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 237, writ denied, 06-1760 (La. 11/3/06), 940 So.2d 664 ).
    "Every incident of property damage is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work." Trim v. South Eastern Exp., Inc., 562 So.2d 26, 28 (La.App. 5th Cir. 1990) (quoting Thompson v. Simmons, 499 So.2d 517, 520 (La.App. 2d Cir. 1986), writ denied, 501 So.2d 772 (La. 1987) ). Owners of damaged property may not recover for such mental anguish unless they prove that they suffered a psychic trauma in the nature of or similar to a physical injury as a direct result of the property damage. Barrios v. Safeway Ins. Co., 11-1028, p. 6 (La.App. 4 Cir. 3/21/12), 97 So.3d 1019, 1022-23 ; Elston v. Valley Elec. Membership Corp., 381 So.2d 554, 556 (La.App. 2d Cir. 1980).
    We first address the claim for emotional distress asserted by Kelley. Here, we find that the district court correctly granted summary judgment. Kelley did not own the home in question or its furnishings. She did not identify any personal property she lost in the fire; in fact, she had no property damage whatsoever. She reported some stress and visited her chiropractor two times for treatment. However, the jurisprudence requires more to recover. We find that her claim was properly dismissed with prejudice by the district court.
    We turn now to Bayer. He did own the house and all its furnishings including an extensive art collection. At the time of the fire, Bayer was exercising at the Riley Center. Kelley contacted the Center to inform him of the fire; Bayer testified that he heard: " 'Thomas Bayer, please go to your home...Please go to your home. Your house is on fire.' " Bayer lived about one mile from the Riley Center; he testified that he ran home. He arrived at the scene shortly after the fire was extinguished, but still saw lots of smoke. He arrived just before the firefighters were to break in his front door to gain entry to the house.
    He stated that he began to experience tinnitus about two months after the fire. Despite physical examinations and tests, no known underlying physiological reason for the tinnitus could be found. No medication is available for the condition. Bayer testified that the tinnitus has impacted his life.
    We find that a genuine issue of material facts exists as to whether Bayer's tinnitus is related to the fire at his home and the resulting stress he experienced in its immediate aftermath. Consequently, the district court erred when it entered a summary judgment against him. Because we find that summary judgment was inappropriate, we pretermit discussion of the district court's alleged error in denying the motion for new trial.
    Based on the foregoing, we affirm the summary judgment entered against Laura D. Kelly, dismissing her claims with prejudice, reverse the summary judgment against Thomas D. Bayer, and remand the case to the district court for further proceedings consistent with this opinion.
    AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      Bayer also had five tenants living on the property.

      Plaintiffs' related claims for property damage, relocation, temporary housing and living expenses, and other incidental damages, were previously paid, and were not a part of the litigated claim. All Bayer's tenants were similarly reimbursed for all expenses incurred as a result of displacement, including the boarding of a tenant's dog.

   LOVE, J., CONCURS IN PART AND DISSENTS IN PART

LOVE, J., CONCURS IN PART AND DISSENTS IN PART

I respectfully concur in part and dissent in part. I agree with the majority that genuine issues of material fact exist as to Dr. Thomas Bayer which precludes granting of summary judgment in the defendants favor. Unlike the majority, however, I find genuine issues of material fact also exist as to Dr. Laura Kelley. The trial court relied on Prather v. Audubon Ins. Co. , 488 So.2d 383 (La. App. 3rd Cir. 1986), and the proximity test to grant defendants' motion for summary judgment. I find the trial court's reliance on Prather misplaced. In Prather , it took the plaintiff 35 minutes to arrive at the accident scene and no evidence was offered as proof of mental anguish. By contrast, Dr. Bayer arrived at the home within seven minutes of learning of the accident and Dr. Kelley arriving quickly after Dr. Bayer's arrival. This case is further distinguished from Prather as the plaintiff's claim in that case was based solely on mental anguish and did not seek recovery for inconvenience or loss of use.

I find this case is more analogous to Sierra v. American Alternative Ins.Corp. , 13-1808 (La. App. 1 Cir. 6/16/14), 147 So.3d 1125. The Sierras were at the hospital when they learned that a fire truck crashed through an exterior wall of their home. Like Drs. Bayer and Kelley, the Sierras rushed to home to find many people at their home, including firemen who were working at the site of the crash. Also like Drs. Bayer and Kelley, the Sierras sustained such damage that they could not live in their home while it was being repaired.

Drs. Bayer and Kelley testified concerning the extreme stress they experienced as a result of the damage to their home. Both individuals arrived within seven minutes of being informed that their house was on fire. Dr. Kelley testified that she when she arrived at the house and learned that someone from Cimarron cut a live gas line causing an explosion, she feared the worst. She testified that she arrived to a scene "fraught with chaos" and feared that someone may have died. Dr. Bayer testified that he arrived on the scene as firemen were attempting to break down the front door.

Drs. Bayer and Kelley both testified to their loss of permanency, the strain placed on their relationship, and Dr. Bayer's worries about the disruption, inconvenience, and discomfort caused to his tenants. They indicated that they were displaced from the property for seven weeks, during which time they were provided alternative housing. Nevertheless, they were forced to repeatedly pack up and move from one hotel to the next six times in the first ten days.

They both testified to the disruption the accident caused to their daily activities and the careers. Dr. Bayer testified that he usually spends his summers traveling; however, because of the incident he was forced to refocus his activities, including supervising the repair work. Additionally, his insurance would not cover his extensive art collection and other valuables in his home during the repairs because the home was without a working security system as a result of the accident and the City turning off the electricity to his home. Because he had no other means to protect his collection, he was constantly worried that his possessions would be stolen. Consequently, he would arrive at the home early in the morning and stay late into the night. He explained that his time at the home was insufferable due to the excessive heat as a result of no electricity or use of a bathroom or running water. He would also randomly visit in the middle of the night to create a pattern of irregularity to deter anyone from stealing from the home, which contributed to his worries and lack of sleep. Dr. Bayer also testified that while he regularly had his blood pressure checked, during the time in question, his doctor noticed his blood pressure was higher than normal. He indicated that his doctor attributed the spike in his blood pressure to stress relating to the fire. As a result, he was placed on medication until it normalized later in the year.

Dr. Kelley also testified that she experienced stress, disappointment, and frustration after being displaced from her home. She testified to the extreme pressures she was under as a result of being displaced from her home and her office. She testified that her office was in their home and because the home (as mentioned above) was inhabitable it caused significant disruption to her professional career. When the accident occurred, Dr. Kelley was recently named the academic director for Tulane's summer study abroad program in Dublin. It was her first tenure in the role, and she was responsible for creating a curriculum for the entire program. She explained that repeatedly moving from one hotel to the next and the loss of permanency was extremely stressful while trying to plan an entire program curriculum, prepare lesson plans for two courses she would teach, create the necessary course materials, lectures, and plan excursions and field trips without the ability to work from her home office, which contained many of the resources and materials she needed to direct the new program. Dr. Kelley testified to the strain the situation placed on her relationship with Dr. Bayer as he took on everything so that she could try to focus on getting her program ready for the students that summer.

Dr. Kelley's loss of the use of her office, which was set up for her specific health needs, also contributed to the stress and anguish attendant to the property damage. She testified that she has a treadmill work station in her home office that she uses to assist with her back pain. She testified that the fire deprived her of the use of her home office, exacerbating problems with her back. She indicated that she visited the chiropractor twice after the accident to address issues she began having after the accident. She testified that she carries stress in her shoulders and also began getting headaches after the fire. Further, Dr. Kelley testified about lingering anxiety she experienced when defendants began work in other parts of the neighborhood, fearing that another explosion and fire might occur.

Review of the trial court's written reasons demonstrates that it erroneously weighed the evidence and made certain factual determinations. I find the foregoing testimony sets forth sufficient evidence from which a trier of fact may reasonably conclude that Drs. Bayer and Kelley suffered mental anguish and emotional distress that amounted to more than minimal worry of being displaced from their home. A trier of fact may reasonably conclude that the anguish was a direct result of being dispossessed of their home. Therefore, I conclude there is sufficient evidence showing in the record to preclude summary judgment as it relates to the claims of Drs. Bayer and Kelley. Accordingly, I concur in part and dissent in part.

      Dr. Bayer testified to having stressful and confrontational interactions with defendants regarding how they were treating his tenants, one of whom was a law student in the midst of her final law exams.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Troherro Keith BATISTE
    17-1099
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018
    Paula Corley Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT-APPELLANT: Troherro Keith Batiste
    Phillip Terrell, Jr., District Attorney, Ninth Judicial District Court, Catherine L. Davidson, Assistant District Attorney, P. O. Box 1472, Alexandria, La 71309, (318) 473-6650, COUNSEL FOR STATE-APPELLEE: State of Louisiana
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

FACTS

On March 15 and 16, 2016, the state alleges that the defendant, Troherro Keith Batiste, battered the victim and caused her to undergo surgery for major injuries. The evidence revealed that the defendant had battered the victim on multiple prior occasions. In fact, on the day of the incidents in question, the defendant pled guilty to domestic abuse battery.

On June 12, 2017, the defendant's grand jury indictment was amended to charge the defendant with: 1) Count one-attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, "in that he did, on or about and between the 15th day of March, 2016 and the 16th day of March, 2016, attempt to commit Second Degree Murder of Rene Mason"; 2) Count two-aggravated second degree battery, a violation of La.R.S. 14:34.7, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury with a dangerous weapon, to wit a barbecue pit, upon Rene Mason"; 3) Count three-aggravated second degree battery, a violation of La.R.S. 14:34.7, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury with a dangerous weapon, to wit a barbecue pit, upon Rene Mason"; and 4) Count four-second degree battery, a violation of La.R.S. 14:34.1, "in that he did, on or about and between the 15th day of March 2016, and the 16th day of March 2016, without the consent of the victim, intentionally inflict serious bodily injury upon Rene Mason." After a trial by jury held June 13, 2017, to June 15, 2017, the defendant was found guilty as charged on all counts. Thereafter, on August 14, 2017, the defendant was sentenced as follows:

Attempted second degree murder-35 years
Aggravated second degree battery-15 years
Aggravated second degree battery-15 years
Second degree battery-8 years.

The trial court ordered the sentences to run concurrently with the sentence imposed for attempted second degree murder. Additionally, the trial court ordered "the sentence" to be served without benefit of probation, parole, or suspension of sentence. Thereafter, on August 16, 2017, the defendant filed a Motion for Appeal and Designation of Record, which was granted on August 18, 2017. On September 12, 2017, the defendant filed a pro se "Motion to Reconsideration." On September 19, 2017, the defendant filed a pro se "Motion to Reconsider the Imposed Sentence and Contradictory Hearing." The trial court denied the motion as untimely. The defendant is now before the court alleging four assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred in denying the objection to the hearsay testimony of Kevin Thomas a) through a police officer's testimony; and
b) in a statement made by Thomas for investigative purposes.
Kevin Thomas' statements had not been subject to confrontation or cross-examination in violation of the confrontation clause.
2. Should this Honorable Court find the lack of objection to the introduction of the statement of Kevin Thomas precludes review of the Assignment of Error No. 1, then review should be allowed as the failure to object constitutes ineffective assistance of counsel.
3. The equal protection guarantees outlined in Batson v. Kentucky were violated in this case.
4. The trial court erred in sentencing Troherro Keith Batiste without benefit of parole on counts 2-4 as the crimes of aggravated second degree battery and second degree battery do not provide for that restriction in this case.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In assignment of error number one, the defendant challenges the trial court's admission of a statement made by Kevin Thomas, a witness who refused to testify at trial. The defendant argues the admission of Mr. Thomas's statement through the testimony of Officer Torrence Bowens violated his right to confront his accusers. In assignment of error number two, the defendant, out of an abundance of caution, asserts his counsel was ineffective for failing to reassert his objection to the introduction of Mr. Thomas's written statement. We will discuss both assignments together.

Deputy Jerry McKinney testified that he went to the cell block to get Mr. Kevin Thomas to testify, but Mr. Thomas refused to accompany the deputy to the courtroom. The state requested the trial court order Mr. Thomas to come into the courtroom and testify. The trial court then asked Deputy McKinney to instruct Mr. Thomas that he was being ordered by the trial court to testify. According to Deputy McKinney, Mr. Thomas continued to refuse to testify. Mr. Thomas was never brought to the courtroom. The trial court did not directly address Mr. Thomas regarding his refusal to testify. The state asked the trial court the following:

BY MR. METOYER:
Your Honor, we would ask, that under Code of Evidence, Article 804.2, that when a witness-when a witness persist or refusing [sic] to testify concerning the subject matter of his statement, despite an order of the Court to do so, that he be declared unavailable as a witness.

Defense counsel responded that he had no objection, stating that he believed that was the law. The following colloquy then took place:

BY MR. METOYER:
And, Your Honor, since that is the state of the law, that also entitles the-the State to have his record put in, and we can publish it to the jury.
BY THE COURT:
The Court declares him unavailable.
BY MR. METOYER:
Okay.
BY MR. SMITH:
I-I would object to that, inasmuch as I've not had an opportunity to cross and confront the, uh, witness, as-
BY MR. METOYER:
Neither has the-
BY THE COURT:
The Court will-
BY MR. METOYER:
Neither has the State.
BY THE COURT:
The Court will allow it.
BY MR. METOYER:
Thank you. Okay.
BY THE COURT:
So objection's overruled.
....
BY MR. METOYER:
Your Honor, uh, I think, and just for purposes of the record for Mr. Smith-to Mr. Smith's objection, according to, uh, Justice Scalia, before he died, uh, my understanding is this, the State-the State's duty is to provide the witness to be available for cross-examination. By having him subpoenaed and having Mr. Thomas here, we have certainly made him available, but we-and the Court has ordered him. So we're-we've met out [sic] burden in terms of providing the ability to cross-examine him.
So, if there is some objection to that, the State-it's a-it's an evil-even playing field, because the State did not get him on direct. Plus, these statements have been provided to-to Mr. Smith in the beginning. They're not-they're not surprise, and there's no prejudice.
BY MR. SMITH:
Agreed. I-I just-it's-it's-I believe I have a Sixth Amendment Right to cross and confront the-my accusers. I will, however, uh, I-I will-I will, un, [ sic] I will admit that I-I've seen-I've seen his statements way back. And, uh, that-that's all I can say.

The state called Officer Torrance Bowens to testify regarding his investigation of the incident at issue. As part of his investigation, Officer Bowens spoke with Kevin Thomas. Officer Bowens identified State's Exhibit 49 as Mr. Thomas's transcribed statement. When asked to testify as to the substance of the statement, Officer Bowens stated:

A. Yes, sir. Mr. Thomas advised, when asked, uh, I believe I asked him did-was he aware of an incident that took place, uh, between Mr. Batiste and Ms. Mason on the 16th of March. And he advised yes, he was aware. He said, on-on that, uh, I would assume it would be before day at-at-on the 15th, Ms. Mason and Mr. Batiste, he said they were seen at a-at an abandoned house in the area where he hangs. He said that he heard Ms. Mason scream, and she ran toward where they were, where they were hanging and drinking.
He said that-and when she came close, she said, "Help, he's trying to kill me. He's trying to hurt me." He advised that Mr. Batiste was coming toward her, and a group of men that were there stopped Mr. Batiste from coming close to her. He said, during that time, Mr. Batiste picked up a barbecue pit and hit Ms. Mason with it, and also hit her with a crate.
Q. Okay. If you would, um, I want to direct your attention to Page 2, okay. And at the top of, uh, Page 2, can you read-that 'Q', what does that-what does that mean?
A. Question.
Q. And who-who was giving the question?
A. That would be me.
Q. Okay. And the 'A' means what?
A. Answer.
Q. Who was giving the answer in this statement?
A. That would be Mr. Thomas.
Q. Can-at the top of Page 2, can you tell me what the question is that you asked?
A. "Can you tell me, in your own words, exactly you saw [sic] and what happened?["]
Q. And can you please read what Mister-the answer that was giving [sic] to you by Mr. Kevin Thomas.
A. Yes, sir. "That night, I was in-I was in the backyard, right there at 1416 Sixth Street, and we was all barbecuing, you know, drinking a couple of beers and stuff. And we heard, you know, Rene scream. We looked up, and she was running. She came over there, and she-she was saying he was trying to beat her up, you know. He was going to hurt her. You know, she could-she could have hung, kind of hung around. And a little short while after, he came, you know, over there where he was trying to get her. And she was, you know, piling behind us. You know what I'm saying? That he was going to kill her. He's going to kill her. He's going to hurt her."
Q. Wait, let me-let me stop you for a second. So Kevin Thomas heard Mr. Batiste say that he was going to kill her? Is that what the-is that-
A. It's-it's unclear if-if it was Mister-from reading this, I-I-.
Q. Right.
A.-remember, from taking the statement, that Mr. Thomas was saying Ms. Mason was gonna-was-was the one saying-
Q. So, it's Mr.-it's Mr. Thomas saying that?
A. Right.
Q. "I'm saying that he was going to kill her." Okay-
A. Right.
Q.-go ahead.
A. "He's going to hurt her. A couple of the guys kind of talked him down, and, uh, he left. Then he came back, and he tried to get her again, and the same thing just repeated itself over and over. She's running behind us, and he picked the barbecue pit up off the top of the barbecue grill and threw it at her, and hit her with it, kind of, but-and she kind of bent down. She was crying and screaming he was going to kill her. So that's when the guys kind of pushed him off-off of her, I'm sorry, and made him leave out of the yard. Then both, five minutes later-I'm sorry, then about five minutes later, he came back again. Then that's when he was trying to tell me he wasn't going to hurt her, he just wants to talk to her and every-and, uh, and everything."
"So everybody's kind of like-everybody kind of like left him alone. He's trying to start talking, and kind of got back close. And they left and went back over there by the white house. And that was the last time I saw him or heard anything from him, until the next day when I found out that he had got-that he had hurt her."
Q. Okay. And what was the next question that you asked?
A. "Okay, did you, other than the barbecue pit, did you see him hit-did you see him hit her?"
Q. And what was the answer?
A. "Well, I saw him pick up a-I'm sorry, I saw him throw a plastic crate at her. But when he initially-when he first came over there, they wouldn't let him get close enough to hit her."
Q. Okay. Keep going.
A. "You know, that's when he grabbed the barbecue pit and picked it-and picked it up, and threw it at her. After he hit her, then that's when he grabbed again"-I'm sorry, "that's when they grabbed him again, and made him leave."
Q. And keep going.
A. My next question is, "Where did the barbecue hit her-hit her?" "I think it was like either on her arm or elbow, or on her arm, somewhere in that area. But it made a contact noise. You could hear it when it hit her."
....
Q. Okay. And I-I think that's sufficient. But your understanding was, was that he hit her with the barbecue pit lid, I'm guessing, and-and the crate as well?
A. Yes.
Q. And that would have been not only from this statement and it's transcription, but from your notes that you took before the statement was made?
A. Yes.

The state introduced Mr. Thomas's statement as State's Exhibit 49, and defense counsel stated, "Without objection."

Defendant's Argument in Brief

Appellate counsel argues the trial court erred in allowing Officer Bowens's testimony regarding Mr. Thomas's statement since Mr. Thomas's statement was testimonial in nature and was introduced without the defendant having the opportunity to cross-examine Mr. Thomas. Additionally, appellate counsel argues the erroneous introduction of the statement was not harmless:

The hearsay testimony and hearsay statement of Kevin Thomas likely tipped the scales with the jury in establishing the "intent to kill" element of count 1, attempted second degree murder, as the State failed to prove a weapon was used and Ms. Mason had little recollection of the events. Likewise, without this evidence, the jury had no evidence to show the use of a barbecue pit or crate in Counts 2 and 3. Thus, there was no proof in those counts to prove that a dangerous weapon was used to cause the injuries. Thus, this evidence was not harmless beyond a reasonable doubt.

In assignment of error number two, appellate counsel raises an ineffective assistance of counsel claim in the event this court finds the defendant's initial objection to Officer Bowens's testimony regarding Mr. Thomas's statement was not sufficient to preserve the objection to Mr. Thomas's written statement. As noted earlier, defense counsel stated he had no objection to the state's introduction of the written statement. When defense counsel initially asserted the "confrontation clause" objection, it was in response to the state's declaration that Mr. Thomas's unavailability allowed it "to have his record put in, and ... publish[ed] ... to the jury." Officer Bowens then proceeded to testify as to the substance of Mr. Thomas's statement. Since defense counsel made his objection known to the trial court prior to Officer Bowens's testimony regarding Mr. Thomas's statement, defense counsel's lack of objection to the introduction of the written statement does not impede review of this assignment of error. Further, when there is an issue regarding the possibility of the violation of a basic constitutional right, failure to object does not preclude appellate review. Accordingly, there is no need to address defense counsel's ineffective assistance of counsel claim.

State's Argument in Brief

The state focuses its argument on the fact that Mr. Thomas was, in fact, unavailable since he refused to testify. Although the state argues the trial court did not err in admitting Officer Bowens's testimony regarding Mr. Thomas' statement, the state contends any error would be harmless:

Here, the testimony of Detective Torrence Bowens related to the statement of Kevin Thomas pales in comparison to the testimony of the Library personnel who found Renee Mason unable to hold her head up and who had obviously been beaten; hospital personnel who testified to the extent of Rene Mason's injuries, indicating Rene Mason was dying when she arrived at the hospital; the medical records that were submitted which describe traumatic brain injury, brain swelling, and the necessity of immediate brain surgery on Rene Mason.
Additionally, because of Rene Mason's admission to transport personnel and hospital personnel that "her boyfriend, the defendant, had caused her injuries and the fact that Renee Mason was moved to a Level 1 trauma, the hospital was put on lock down. Further, due to the severity of her injuries, Renee Mason was unable to eat on her own and was placed on a nasal gastric tube; was unable to breath [sic] on her own and was intubated; and had to undergo a craniotomy. When Renee Mason arrived at the hospital she had a broken collar bone and not only bruising over her entire body, but lacerations to the face and hands.
In addition to eyewitness and medical testimony to the extent of Renee Mason's injuries, the State introduced numerous incident reports related to the defendant beating Renee Mason. In an effort to corroborate these incident reports, the State offered the testimony of seven (7) Alexandria Police Officers who had encountered the defendant in altercations with Renee Mason for the course of 2-3 years.
Finally, the State introduced the Defendant's own statement made on March 16, 2016 that he inflicted Renee Masons' injuries; the Defendant's guilty plea entered on March 16, 2016 for the battery of Renee Mason; and not one (1) BUT three (3) admissions to causing the injuries to Renee Mason on March 15-16, 2016, which were filed by the Defendant into the court record as letters to the Rapides Parish Clerk of Court and a 9th Judicial District Court Judge.
ALL of this testimony and ALL of these documents were presented to the jury AND submitted into evidence prior to the testimony of Detective Torrence Bowens related Kevin Thomas [sic].

Law and Analysis

Louisiana Code of Evidence Article 804 provides:

A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
....
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
....
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.
(2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (a) A statement, made before the controversy, concerning the declarant's own birth, adoption, marriage, divorce, filiation, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or
(b) A statement, made before the controversy, concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(5) Complaint of sexually assaultive behavior. A statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexually assaultive behavior.
....
(7)(a) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
(b) A party seeking to introduce statements under the forfeiture by wrongdoing hearsay exception shall establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.

Although the state argues Mr. Thomas was unavailable under La.Code Evid. art. 804(2), the state offers no argument as to whether Mr. Thomas's statement falls within one of the above exceptions to the prohibition of hearsay testimony. We find that it does not. Furthermore, Mr. Thomas' statement was testimonial in nature and was admitted in violation of the defendant's right to confront the witnesses against him. In a similar situation, this court found a defendant's confrontation rights were violated:

The defendant argues, in the one assignment of error filed by his counsel, that the trial court erred when it allowed the admission of the victim's two out-of-court statements because they were inadmissible hearsay; and that he was deprived of his Sixth Amendment right to confront and cross-examine his accuser.
The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." This right is secured for defendants in state as well as federal criminal proceedings. See Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965). The confrontation clause of our state constitution specifically and expressly guarantees each accused the right "to confront and cross-examine the witnesses against him." See La. Const. art. 1, § 16, titled "Right to a Fair Trial."
Confrontation means more than being allowed to confront the witnesses physically. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 5 J. WIGMORE, EVIDENCE § 1395, p. 123 (3d ed.1940) ). Cross-examination is the principal means by which believability and truthfulness of testimony are tested. Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, or discredit, the witness. See Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110 ; State ex rel. Nicholas v. State, 520 So.2d 377, 380 (La.1988) ; State v. Hillard, 398 So.2d 1057, 1059-1060 (La.1981).
State v. Robinson, 01-273, pp. 5-6 (La.5/17/02), 817 So.2d 1131, 1135 (footnote omitted).
Louisiana Code of Evidence Article 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." Clearly, both of the victim's written statements are hearsay. Louisiana Code of Evidence Article 802 provides that "[h]earsay is not admissible except as otherwise provided by this Code or other legislation." In arguing that the statement was properly admitted, the state relies on the exceptions to the hearsay rule found in La.Code Evid. arts. 804(A)(2) and 803(1) and (2).
Louisiana Code of Evidence Article 804(A)(2) addresses the situation where the witness is unavailable to testify and it reads as follows:
A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
....
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so[.]
In response, the defendant relies on the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 [158 L.Ed.2d 177] (2004), which bars admission of all out-of-court testimonial statements unless the witness who made the statement was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.

State v. Savoy , 11-1041, pp. 6-7 (La.App. 3 Cir. 4/4/12), 2012 WL 1142393 (unpublished opinion), writ denied , 12-915 (La. 10/26/12), 99 So.3d 639.

Because the state failed to prove the unavailability of the witness, the court in Savoy discussed whether the excited utterance exception provided for in La.Code Evid. art. 803 was applicable. After finding the statement was an excited utterance, the court nonetheless found the defendant's confrontation rights were violated since the statement was "testimonial" in nature and was admitted without an opportunity for the defendant to cross-examine the witness:

We do find, however, that the first written statement, given to the police within fifteen minutes after the defendant escaped into the swamp, was an excited utterance and, therefore, an exception to the hearsay rule. However, the inquiry does not end there. The statement made at the bridge was testimonial in nature, and the facts given in the statement were offered into evidence to prove the truth of the matter asserted. According to the rationale of the United States Supreme Court in Crawford, the statement is still not admissible unless the defendant had a prior opportunity to cross-examine the victim before the testimonial statement was introduced into evidence. The state asserts that the defendant's failure to cross-examine the victim at trial satisfies that requirement. We disagree.
In State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, writ denied, 05-81 (La.4/22/05), 899 So.2d 559, the fifth circuit found that the defendant was denied his Sixth Amendment right to confront his co-defendant, who had made an out-of-court statement that the defendant was the one who killed the victim, then refused to testify at trial. The fifth circuit discussed whether the trial court erred when it admitted the co-defendant's statement into evidence, as follows:
In this case, as previously noted, Arvel Gurganus refused to be sworn in and asserted his Fifth Amendment privilege against self-incrimination. The trial court then ruled that Gurganus was unavailable. After Gurganus was given testimonial immunity, he provided unresponsive answers to the prosecutor, when asked questions about his police statement. In his police statement, Gurganus admitted stealing a van on the morning November 25, 2000. It appears that Gurganus' statement qualifies under the declaration against penal interest exception to the hearsay rule making the statement admissible. In his statement, Gurganus incriminates himself in the additional crime of stealing a van, thereby subjecting himself to additional criminal charges, which gives reliability to his statement.
In Crawford v. Washington however, which was rendered after the present case was tried and decided, the United States Supreme Court found that certain ex parte examinations, while admissible under modern hearsay rules, are exactly the kind of testimonial evidence against the accused that the confrontation clause is supposed to prevent: that is, testimonial evidence in the form of an out-of-court declaration to establish or prove a fact. The Supreme Court found that under the Sixth Amendment a necessary condition for the admissibility of the testimonial statements against an accused in a criminal case is the prior opportunity to confront the unavailable witness. The Court noted that statements taken by police in the course of interrogations are testimonial hearsay for purposes of the Sixth Amendment, and that these statements present a unique opportunity for prosecutorial abuse. Therefore, in light of Crawford v. Washington, in order for Gurganus' police statement to be admissible in the present case, the State had to show that Gurganus was unavailable and that there was a prior opportunity to confront the witness.
The first question under this analysis is whether Gurganus was unavailable. Under LSA-C.E. art. 804, "a declarant is 'unavailable as a witness' when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court." This includes situations in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement, persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so, or testifies to a lack of memory of the subject matter of his statement. Here, Gurganus first asserted his Fifth Amendment privilege, and then persisted in refusing to testify concerning the subject matter of his statement when questioned by the prosecutor, which would make him unavailable under LSA-C.E. art. 804.
The State argues in its brief that Williams cannot claim that he was denied his right to confrontation, because Gurganus agreed to answer the questions posed by the defense, and the defense instead chose not to confront the witness on the subject matter of his statement, but rather focused its questions on his mental health. The State is correct that the defense's questions focused on Gurganus' mental health, but the record reveals that prior to the witness's cross-examination Gurganus stated that he did not give a statement to the police and suggested that it must have been somebody with the same name. If Gurganus did not give the statement to the police, it would, in fact, have made no sense for the defense to ask Gurganus about a statement that he testified he did not make. Assuming that Gurganus had made the statement, he was still unavailable because he testified to a lack of memory of the subject matter of his statement. Under Crawford v. Washington the only remaining question for determining the admissibility of the testimonial statement is whether there was a prior opportunity to confront the unavailable witness. The record reveals that there was no prior opportunity for the defense to confront Gurganus. Therefore, it appears that the trial court violated the defendant's Sixth Amendment right to confrontation by admitting Gurganus' statement.
Id. at 1100-02 (footnotes omitted).
Like Williams, the record in the current case does not reflect that there was an opportunity to cross-examine the witness at the time she made the statement or any time subsequent. The victim refused to testify regarding her statement at trial, and it was very unlikely that she was going to answer the defendant's questions either. It was error for the trial court to allow the admission of the victim's written statement, even though it was an excited utterance or present sense impression, because the statement was testimonial in nature and the defendant had no prior opportunity to confront the victim.

Savoy , 11-1041 at pp. 10-12.

In the present case, the lack of the defendant's opportunity to cross-examine Mr. Thomas appears to be uncontested. Defense counsel's knowledge and awareness of Mr. Thomas's statement did not satisfy his constitutional right to cross-examine Mr. Thomas regarding the statement. The only question is whether Mr. Thomas's statement was testimonial in nature. In State v. Falkins , 12-1654, pp. 11-13 (La. App. 4 Cir. 7/23/14), 146 So.3d 838, 847-48, the fourth circuit addressed the issue of whether a statement was testimonial:

The defendant first argues that the 911 calls should have been suppressed because the substance of the calls was testimonial in nature, and therefore violated his rights under the Confrontation Clause of the Sixth Amendment, which guarantees the right of a criminal defendant "to be confronted with the witnesses against him." The United States Supreme Court has held that this guarantee, which is extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) ; State v. Collins, 10-0757, p. 22 (La.App. 4 Cir. 5/11/11), 65 So.3d 271, 286.
In support of this argument, the defendant relies on United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), wherein the Court held that the admission of a recorded statement given to police by the defendant's wife violated the defendant's right under the Confrontation Clause because the statement was hearsay, because it was testimonial in nature, and because his wife did not testify at trial due to the state's marital privilege. Most significantly, because his wife did not testify at trial, the defendant had no other opportunity to cross examine her. The Court specifically declined to define the term, "testimonial," stating only that "[w]hatever else the term covers, it implies at minimum to ... police interrogation." Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.
The Supreme Court later elaborated on the meaning of testimonial statements in connection with the Sixth Amendment's Confrontation Clause in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) -a case dealing specifically with the admission of statements made during a 911 call. In Davis, the victim called 911 to report a domestic altercation with her ex-boyfriend. Id., 547 U.S. at 817, 126 S.Ct. at 2270-71. During the call, the victim identified the defendant as her attacker and described the specifics of the ongoing assault in response to questions by the 911 operator. Id., 547 U.S. at 817-18, 126 S.Ct. at 2271. The trial court allowed the recording of the 911 call to be admitted into evidence despite the fact that the victim did not testify at trial. Id., 547 U.S. at 822, 126 S.Ct. at 2273-74. In finding the recordings to be nontestimonial in nature, and therefore admissible, the Supreme Court explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id.
The Court reasoned that the statements were nontestimonial because "[a] 911 call, ... at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Davis, 547 U.S. at 826, 126 S.Ct. at 2276. The Court noted that the victim was "speaking about events as they were actually happening, rather than 'describ[ing] past events' " and that, "[a]lthough one might call 911 to provide a narrative report of a crime absent any imminent danger, [the victim's] call was plainly a call for help against bona fide physical threat. Id., 547 U.S. at 827, 126 S.Ct. at 2276. The Court also reasoned that the nature of the questions posed by the 911 operator indicated that the purpose of the interrogation was to "resolve the present emergency, rather than simply to learn ... what had happened in the past." Id. Finally, the Court reasoned that the fact that the victim's answers were frantic and provided over the phone, in an environment that was not tranquil, or even ... safe" indicated that the statements were nontestimonial. Id., 547 U.S. at 827, 126 S.Ct. at 2276-77. See also, Michigan v. Bryant, [562] U.S. [344], 131 S.Ct. 1143, 1157, 179 L.Ed.2d 93 (2011).

In the present case, Mr. Thomas gave his statement to Officer Bowens several days after the beating of the victim. The statement was given on March 23, 2016, seven days after the incidents in question. Thus, Mr. Thomas was not speaking about events as they were happening but was describing events that occurred several days beforehand. It is also clear that Officer Bowens's questions were posed to learn what happened in the past rather than to resolve a current emergency. We find Mr. Thomas's statement to Officer Bowens was testimonial and, thus, subject to the defendant's confrontation rights. Contrary to the state's argument, there is no such thing as an "even playing field" in a criminal trial. The burden lies wholly with the state to prove every element of an offense charged. The Sixth Amendment to the United States Constitution specifically provides that the defendant has the right "to be confronted with the witnesses against him[.]" The state's lack of opportunity to question a witness is irrelevant and does not excuse the violation of the defendant's constitutional right to confront his accusers. The trial court erred in admitting the statement without the defendant having an opportunity to cross-examine Mr. Thomas.

As both the defendant and the state acknowledge in their briefs, a harmless error analysis is appropriate when evidence is introduced at trial in violation of the defendant's confrontation rights.

An error in the defendant's right to confrontation is subject to a harmless error analysis. If a confrontation error occurred, a reviewing court must determine whether the error is harmless beyond a reasonable doubt. In determining whether the guilty verdict rendered was unattributable to the error the following factors should be considered: 1) whether the witness' testimony was important; 2) whether the testimony was cumulative in nature; 3) whether corroborating or contradictory evidence regarding the major points of the testimony existed; 4) the extent of cross-examination permitted; and 5) the overall strength of the State's case.

Williams , 889 So.2d at 1102.

The sufficiency of the evidence is not challenged on appeal. After a review of the record, we find the erroneous introduction of Mr. Thomas's statement was not harmless error. Mr. Thomas's statement was important since it was essential to proving the elements of the charges against the defendant.

Aggravated second degree battery is defined at La.R.S. 14:34.7 as "a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury." "[S]pecific intent to kill is required to support an attempted second degree murder conviction." State v. Spriggins , 13-1114, p. 3 (La.App. 3 Cir. 4/2/14), 135 So.3d 1252, 1254, citing State v. Butler , 322 So.2d 189 (La.1975). The state relied on Mr. Thomas's statement to prove the dangerous weapon element of aggravated degree battery and the specific intent to kill element of attempted second degree murder.

As the state points out in its brief, the victim identified the defendant as her attacker, and the defendant admitted to battering the victim. Thus, the defendant's identity was proven by other evidence. Additionally, the medical testimony regarding the severity of the victim's injuries is arguably sufficient to prove the defendant's specific intent to kill (attempted second degree murder) and the defendant's specific intent to inflict serious bodily injury (aggravated second degree battery and second degree battery). However, as the defendant points out in his brief, Mr. Thomas's statement was the only evidence as to the dangerous weapon element of the two counts of aggravated second degree battery, both of which specify the barbecue pit as the dangerous weapon used. The necessity of Mr. Thomas's statement is evident in the following colloquy between the state and Officer Bowens:

Q: Okay. Okay, so according to Mr. Thomas' statement, Mr. Batiste hit Ms. Mason with the lid of a barbecue grill and a crate. Correct?
A: Correct.
Q: And according to Mr. Batiste own [sic] statement, in addition not only did he hit her multiple times, he pushes her down, right, and her head is close to the stairs, right? And the steps are made of what?
A: Concrete.

Although Mr. Batiste admitted that he hit the victim several times, Mr. Batiste did not admit to using the dangerous weapons necessary to prove the two counts of aggravated second degree battery. Mr. Thomas's statement is the only evidence presented by the state that a dangerous weapon was used. Further, the state extensively quotes the inadmissible statement in its closing argument as evidence of the defendant's intent to kill the victim. Thus, Mr. Thomas's statement was essential to the state's case on the charge of attempted second degree murder. The wrongly admitted evidence, therefore, was clearly prejudicial evidence which tainted the process as to all charges.

For the foregoing reasons, we find the introduction of Mr. Thomas's statement violated the defendant's constitutional right to confront his accusers and created reversible error. Accordingly, the trial court's ruling allowing introduction of the evidence is reversed, defendant's convictions and sentences are vacated and the case is remanded for a new trial. This ruling renders both Assignments of Error Three and Four moot.

CONCLUSION

The defendant's convictions and sentences are vacated and the case remanded for a new trial.

REVERSED; CONVICTIONS AND SENTENCES VACATED; AND REMANDED FOR A NEW TRIAL.

      We note that the trial judge that denied the motion to reconsider as untimely was Judge Thomas Yeager, a different judge from the judge who presided over trial and sentencing (Judge Monique Freeman Rauls).


text:
    Ricky E. ROBERSON v. STATE of Mississippi
    2014-CT-00652-COA
    Supreme Court of Mississippi.
    Filed: March 5, 2018 Closed: May 31, 2018
    Motion Desc: Petition for Certiorari.
    Certiorari - Denied.


text:
    Jonathan Earl HERRINGTON v. STATE of Mississippi
    2016-CT-01376-COA
    Supreme Court of Mississippi.
    Filed: February 21, 2018 Closed: May 17, 2018
    Motion Desc: Motion for Writ of Certiorari.
    Certiorari - Denied.


text:
    Arlene CAROTHERS v. CITY OF WATER VALLEY, Mississippi
    2015-CT-01808-COA
    Supreme Court of Mississippi.
    Filed: February 27, 2018 Closed: May 10, 2018
    Motion Desc: Arlene Carothers Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Thomas J. HOOGHE v. STATE of Mississippi
    2016-CT-01039-COA
    Supreme Court of Mississippi.
    Filed: March 2, 2018 Closed: May 10, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Wendell DUNCAN v. STATE of Mississippi
    2016-CT-00354-COA
    Supreme Court of Mississippi.
    Filed: March 23, 2018 Closed: May 31, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Dismissed.


text:
    Timothy PRICE v. MTD PRODUCTS
    2016-CT-00925-COA
    Supreme Court of Mississippi.
    Filed: March 13, 2018 Closed: May 17, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Jess GREEN v. STATE of Mississippi
    2016-CT-00197-COA
    Supreme Court of Mississippi.
    Filed: February 20, 2018 Closed: May 10, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    John H. LOFTON v. STATE of Mississippi
    2015-CT-01809-COA
    Supreme Court of Mississippi.
    Filed: March 20, 2018 Closed: May 10, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Dismissed.


text:
    Ferlisi BRAY v. Rufus WOOTEN
    2015-CT-00645-COA
    Supreme Court of Mississippi.
    Filed: March 28, 2018 Closed: May 31, 2018
    Motion Desc: Petition for Writ of Certiorari to Court of Appeals.
    Certiorari - Denied.


text:
    Glen Joseph DAVIS v. STATE of Mississippi
    2015-CT-01491-SCT
    Supreme Court of Mississippi.
    Filed: February 26, 2018 Closed: May 10, 2018
    Certiorari-Denied


text:
    Bobbie Jean LOWE v. CITY OF MOSS POINT, Mississippi, a Municipal Corporation
    2016-CT-01012-SCT
    Supreme Court of Mississippi.
    Filed: February 20, 2018 Closed: May 10, 2018
    Certiorari-Denied


text:
    Trevontae JOHNSON v. STATE of Mississippi
    2015-CT-00235-COA
    Supreme Court of Mississippi.
    Filed: January 24, 2018 Closed: May 3, 2018
    Motion Desc: Petition for Writ of Certiorari of Appellant Meekco Johnson.
    Certiorari - Denied.


text:
    Marcus SHELBY v. STATE of Mississippi
    2016-CT-00312-COA
    Supreme Court of Mississippi.
    Filed: March 5, 2018 Closed: May 17, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Christopher WALKER v. KINDER MORGAN, INC.
    2016-CT-01415-COA
    Supreme Court of Mississippi.
    Filed: February 26, 2018 Closed: May 10, 2018
    Motion Desc: Writ of Certiorari.
    Certiorari - Denied.


text:
    Sidney JONES v. Irozenell PRUITT
    2015-CT-01559-COA
    Supreme Court of Mississippi.
    Filed: March 6, 2018 Closed: May 10, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Wendy CHESTER v. Ruby D. LABASSE
    2016-CT-00414-COA
    Supreme Court of Mississippi.
    Filed: March 1, 2018 Closed: May 3, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Evelyn PENNINGTON v. William David CRAWFORD
    2016-CT-01183-COA
    Supreme Court of Mississippi.
    Filed: March 27, 2018 Closed: May 31, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Keith FRISTON v. STATE of Mississippi
    2015-CT-01467-COA
    Supreme Court of Mississippi.
    Filed: March 13, 2018 Closed: May 24, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    L.H. MANNING v. Robert PERRY
    2016-CT-00444-COA
    Supreme Court of Mississippi.
    Filed: March 20, 2018 Closed: May 17, 2018
    Certiorari-Denied


text:
    Ranzino Ahmad HARRIS v. STATE of Mississippi
    2016-CT-00347-COA
    Supreme Court of Mississippi.
    Filed: March 27, 2018 Closed: May 10, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Curtis Ray MCCARTY, Jr. v. Arthur WOOD, III
    2016-CT-00928-SCT
    Supreme Court of Mississippi.
    Filed: May 29, 2018 Closed: May 30, 2018
    No Action Taken


text:
    Sergio Sebastian GONZALEZ v. STATE of Mississippi
    2016-CT-01271-COA
    Supreme Court of Mississippi.
    Filed: April 9, 2018 Closed: May 24, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Denied.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Takia MAYS, individually, and as Personal Representative of the Estate and Heirs-at-law and/or Wrongful Death Beneficiaries of Rosalyn Packer, Deceased, Appellant v. SHOEMAKER PROPERTY MANAGEMENT, LLC and Caroline Development, LLC, Appellees
    NO. 2016-CA-01666-COA
    Court of Appeals of Mississippi.
    April 24, 2018
    ATTORNEY FOR APPELLANT: CARLOS EUGENE MOORE, GRENADA
    ATTORNEYS FOR APPELLEES: PATRICK H. ZACHARY, HATTIESBURG, JACK W. LAND
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Takia Mays, the daughter and beneficiary of Rosalyn Packer, sued Shoemaker Property Management LLC and Caroline Development LLC after Packer died in a fire at an apartment managed by Shoemaker and owned by Caroline. Shoemaker and Caroline successfully moved for summary judgment because Mays had not designated an expert witness to support her negligence theory or her claim for breach of the implied warranty of habitability. Mays appeals. Finding no error, we affirm.

FACTS

¶ 2. In 2012, Alfreda Miles was residing in an apartment at 200 Tuscan Avenue in Hattiesburg, Mississippi. Miles's sister, Packer, had been having difficulties with Mays, so Miles allowed Packer to stay with her through the holidays. On November 15, 2012, a fire broke out in the apartment. Packer was the only one there at the time and unfortunately she died as a result.

¶ 3. Both the City of Hattiesburg and the State of Mississippi investigated the fire and reported that "[p]otential heat/ignition sources identified within the area of origin included the stove and or some type of human involvement." Moreover, they both reported that the "electrical outlets and ... devices were eliminated as possible ignition sources." Ultimately, both ruled it an accidental fire and closed the file.

¶ 4. In January 2012, Miles had reported that her stove would not turn off. On January 20, 2012, Shoemaker replaced it. According to the record, there were no new work reports filed regarding the new stove. In her deposition, Miles testified that she told George Moore, an electrician, that she had been having issues with her lights and smoke detector because a circuit breaker was not working properly. In May 2012, Moore checked and replaced the breaker that serviced Miles's air conditioning unit. In his deposition, Moore testified that the breaker was old and needed to be replaced. But Moore did not pull out all of the breakers from the box to inspect the electrical system as a whole, because he had only been called to repair the air conditioner. In October 2012, Miles's heat, tub, and kitchen sink were repaired. No other work orders were placed nor repairs completed between October 2012 and the fire in November 2012.

¶ 5. Mays sued individually, as the personal representative of Packer's estate, and on behalf of Packer's wrongful-death beneficiaries. Mays raised claims of premises liability and breach of the implied warranty of habitability. In March 2014, Mays filed a complaint and an amended complaint. In September 2014, Mays filed a second amended complaint.

¶ 6. In January 2015, the original scheduling order set deadlines for discovery to be completed by July 31, 2015. Mays had to designate her experts by May 29, 2015. Shoemaker and Caroline had until June 29, 2015, to designate their experts. In July 2015, the scheduling order was amended to extend discovery to August 31, 2015.

¶ 7. On October 5, 2015, the circuit court granted Shoemaker and Caroline's motion for partial summary judgment regarding Mays's premises liability claim, leaving implied warranty of habitability as Mays's only remaining claim. On October 13, 2015, the circuit court excluded J. Albert McEachern Jr. as an expert witness for Mays. McEachern was set to testify as to the causation of the fire. On April 12, 2016, the circuit court granted Shoemaker and Caroline's motion to exclude James Butts's expert testimony, but denied their motion to exclude James Vickers as an expert. Butts was also set to testify as to the causation of the fire. The circuit court also denied Shoemaker and Caroline's motion for summary judgment as to the claim that they had breached the implied warranty of habitability.

¶ 8. Lastly, on November 3, 2016, the circuit court entered an order denying Mays's motion to substitute electrical expert witness and granted Shoemaker and Caroline's motion for summary judgment regarding Mays's remaining claim. Mays appeals.

DISCUSSION

I. Whether the circuit court erred in denying Mays's motion to substitute electrical expert witness .

¶ 9. Mays asserts that the circuit court abused its discretion when it denied her motion to designate Vickers as an expert witness. We disagree. This Court has held that a "circuit court's admission or exclusion of an expert witness is analyzed for abuse of discretion." Huggins v. GuideOne Servs. LLC , 100 So.3d 499, 501 (¶ 7) (Miss. Ct. App. 2012) (citing Denham v. Holmes ex rel. Holmes , 60 So.3d 773, 783 (¶ 34) (Miss. 2011) ). Abuse of discretion "means 'clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.' " Douglas v. Burley , 134 So.3d 692, 697 (¶ 13) (Miss. 2012) (quoting White v. State , 742 So.2d 1126, 1136 (¶ 42) (Miss. 1999) ).

¶ 10. The circuit court gave Mays multiple opportunities to designate expert witnesses. The original deadline for Mays to designate expert witnesses was May 29, 2015. On July 23, 2015, the circuit court granted Shoemaker and Caroline's motion to amend the scheduling order so they could depose McEachern, who at the time was Mays's only expert witness. After the extension of the scheduling order, on August 10, 2015, Mays amended her designation of expert witnesses to include Dr. Roger A. Mitchell Jr. Then on December 23, 2015, Mays submitted a second amended designation of experts, adding Vickers, James Butts, and Dr. Ray Franco, PE.

¶ 11. In April 2016, Mays was given notice, in a hearing and in an order, that Butts would not be allowed to testify as an electrical expert. Moreover, during the hearing, the circuit court judge forewarned Mays that he did not think she would be able to defeat a future summary judgment motion with only Vickers's expert testimony. Mays did not file her motion to substitute some unspecified electrical expert until October 24, 2016, one day before the scheduled hearing on Shoemaker and Caroline's motion for summary judgment. During the hearing on Mays's "motion to substitute electrical expert" and Shoemaker and Caroline's motion for summary judgment, the circuit court stated that "time for designation of experts has long since passed." Furthermore, in the order, the circuit court stated that Mays "did not demonstrate good cause for allowing a substitution." We find that it was within the circuit court's discretion to deny Mays's motion.

II. Whether the circuit court erred in granting Shoemaker and Caroline's motion for summary judgment.

¶ 12. This Court will review a trial court's grant or denial of summary judgment de novo. Alonso v. Ross , 223 So.3d 194, 196 (¶ 7) (Miss. Ct. App. 2017) (citing Monsanto Co. v. Hall , 912 So.2d 134, 136 (¶ 5) (Miss. 2005) ). Under Mississippi Rule of Civil Procedure 56(c), summary judgment is proper if "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 any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 13. "If any triable facts exist, the lower court's grant of a summary judgment will be reversed; otherwise the decision will be affirmed." Miller v. Meeks , 762 So.2d 302, 304 (¶ 3) (Miss. 2000). "The evidence must be viewed in the light most favorable to the party opposing the motion." Alonso , 223 So.3d at 196 (¶ 7) (citing Davis v. Hoss , 869 So.2d 397, 401 (¶ 10) (Miss. 2004) ). However, we have also held that "when a party[ ] opposing summary judgment on a claim or defense ... fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law." Galloway v. Travelers Ins. Co. , 515 So.2d 678, 684 (Miss. 1987).

¶ 14. Without expert testimony as to the causation of fire, Mays was unable to make a prima facie case of breach of the implied warranty of habitability. The standard for implied warranty of habitability "require[s] a landlord to provide reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant." Sweatt v. Murphy , 733 So.2d 207, 210 (¶ 7) (Miss. 1999) (quoting O'Cain v. Harvey Freeman & Sons Inc. , 603 So.2d 824, 833 (Miss. 1991) ). Mays held the burden of proof to "show duty, breach, causation and damages." Id. at 211-12 (¶ 12).

¶ 15. Shoemaker and Caroline's duty to Miles was to provide "reasonably safe premises" and "to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant ...." Id. at 210 (¶ 7). On January 16, 2012, Miles notified Shoemaker that her stove was not properly working and it was replaced four days later. After a thorough review of the record, we find no other indications of notice about the stove was given to Shoemaker. Therefore, we find that Shoemaker upheld its duty to repair defective conditions made known by Miles.

¶ 16. Furthermore, the "breach of a duty must be the proximate cause of the injury suffered." Sample v. Haga , 824 So.2d 627, 632 (¶ 8) (Miss. Ct. App. 2001) (citing Baggett v. Kornegay , 781 So.2d 139, 140 (¶ 3) (Miss. Ct. App. 2000) ). This Court held that the proximate cause is the "cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred." Id. (quoting Delahoussaye v. Mary Mahoney's Inc. , 783 So.2d 666, 671 (¶ 13) (Miss. 2001) ).

¶ 17. To be successful on her claims, Mays had the burden of proving the proximate cause of Packer's death was the "natural and continuous" result of Shoemaker and Caroline's breach of duty. As stated above, both the City of Hattiesburg and the State of Mississippi investigated the fire and reported:

[P]otential heat/ignition sources identified within the area of origin included the stove and[/]or some type of human involvement .... The electrical outlets and ... devices were eliminated as possible ignition sources. The evidence found on the stove indicated that the stove's right rear burner was on. There was a small pot that had partially melted onto the right rear burner with scorch marks on the bottom of the pot.

Shoemaker and Caroline put on evidence and argued in accordance with the fire marshal's report, that:

It is our opinion, based on the observed pattern of fire damage and a systematic evaluation of the remaining physical evidence, photographs of the free standing electric range[,] and within a reasonable degree of fire science certainty that the fire originated in the kitchen at the right rear heating element on the electric range.

And taking their claim one step further, they reasoned that "[t]he cause of the fire was the ignition of a cooking substance due to unattended cooking."

¶ 18. To rebut this claim, Mays attempted, through Vickers's proposed expert testimony, to assign causation of the fire to "electrical irregularities." According to Mays's appellate counsel, Vickers could "lead you to the electrical irregularity behind the stove, but is not comfortable to a reasonable degree of electrical certainty about what happened." Thus, Mays was unable to produce an electrical expert in the time allotted for designation of expert witnesses.

¶ 19. The circuit court stated that "[t]he [c]ourt has viewed the evidence in a light most favorable to the plaintiff, and finds that no genuine issue of material fact exists as to the plaintiff's failure to make out a prima facie case of breach of the implied warranty of habitability." After reviewing the record, we find no error.

CONCLUSION

¶ 20. We find that it was within the circuit court's discretion to deny Mays's motion to substitute an unspecified electrical expert witness. Furthermore, without expert testimony regarding the proximate cause of the fire, Mays was not able to make a prima facie case for breach of the implied warranty of habitability. Therefore, summary judgment was properly granted.

¶ 21. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      The admissibility of expert opinions by McEachern, Dr. Mitchell, and Dr. Franco are not discussed.

      Miles was the tenant and Packer was a licensee. This Court has held that one who enters upon another's premises "as a guest of the owner or occupant, or to receive a gratuitous favor, is usually regarded as a licensee." Kendrick v. Quin , 49 So.3d 645, 649 (¶ 11) (Miss. Ct. App. 2010). "A landowner owes a licensee and a trespasser the duty to refrain from willfully or wantonly injuring them." Id. (citing Adams ex rel. Adams v. Fred's Dollar Store of Batesville , 497 So.2d 1097, 1100 (Miss. 1986) ).