author: COOKS, Judge.

text:
    Phillip TERRELL, in His Capacity as District Attorney of Rapides Parish, et al. v. TOWN OF LECOMPTE, et al.
    18-1004
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019 Rehearing Denied July 31, 2019
    Tiffany N. Sanders, 929 Johnston Street, Alexandria, LA 71301, (318) 443-9080, Attorney for Appellant, Town of Lecompte
    Thomas O. Wells, P.O. Box 13438, Alexandria, LA 71315, (318) 445-4500, Attorney for Appellees, Otis Payne and Edward Christie
    James C. Downs, 1254 Dorchester Drive, Alexandria, LA 71303, (318) 448-3439, Attorney for Appellees, Otis Payne and Edward Christie
    Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
   COOKS, Judge.

PROCEDURAL HISTORY

Phillip Terrell (Terrell), in his official capacity as District Attorney for Rapides Parish, and Otis Payne and Edward Christie (Plaintiffs) as taxpayers domiciled in Lecompte, Louisiana filed a declaratory action against the Town of Lecompte, naming its mayor, all members of its Board of Aldermen, and the town clerk as defendants (Defendants). Terrell was dismissed from the suit and is no longer a party to this litigation. Plaintiffs and Defendants filed cross motions for summary judgment. The trial court denied Defendants' motion and granted a motion for summary judgment in favor of Plaintiffs. Defendants filed an application for supervisory writs with this court which was denied with one judge dissenting. The writ was denied because the majority held the judgment was not an appealable final judgment. The Louisiana Supreme Court granted Defendants' writ application and remanded the matter to the trial court for a "determination of whether or not this partial summary judgment is a final judgment." Terrell v. Town of Lecompte , 18-1087, p. 1 (La. 9/28/18), 253 So.3d 134, 135. On remand the trial court rendered judgment designating its ruling as a final judgment for purposes of an appeal. Defendants appeal the granting of summary judgment in favor of Plaintiffs and the denial of their motion for summary judgment.

FACTUAL BACKGROUND

In 1989 the citizens of Lecompte approved a tax provision authorizing a one cent sales tax "to be used for the purpose of constructing, acquiring, improving, operating and maintaining garbage collection and disposal facilities, fire protection facilities, and civil defense facilities, including all necessary sites, furnishings, equipment and vehicles in connection therewith...." In 2017, Plaintiffs filed a "Petition for Declaratory Judgment, Permanent Injunctive Relief and Other Relief." Plaintiffs asserted in their petition that the state law authorizing a State Civil Defense Agency was repealed in 1993, thus any monies expended after that date by Lecompte for civil defense were "unauthorized" because "civil defense" no longer exists. Defendants, however, assert that the Civil Defense Agency Act, found in Louisiana Revised Statutes Title 29, was replaced by a new act in Title 29 entitled "The Louisiana Homeland Security and Emergency Assistance and Disaster Act." La.R.S. 29:722 -23.

ANALYSIS

Appellate courts review summary judgments de novo, using the same analysis as the trial court in deciding whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730. A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). As for the burden of proof, Article 966(C)(2) provides:

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

DeLafosse v. Village of Pine Prairie , 08-0693, p. 2 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1250, writ denied , 09-0074 (La. 2/4/09), 999 So.2d 766.

Defendants maintain that the new Louisiana Homeland Security and Emergency Assistance and Disaster Act, La.R.S. 29:721 et. seq., replaces the former Civil Defense Act and "envisions municipalities, such as the Town of Lecompte, exercising 'civil defense' or 'emergency preparedness.' " The trial court held that Lecompte could not use the tax revenue at issue for payment of "day to day activities," of the Lecompte Police Department. Included in this prohibition is fuel for the police cars.

Defendants appeal asserting four assignments of error:

(1) The Trial Court erred when the court read the words "civil defense" in isolation rather than reading the sales tax proposition as a whole.
(2) The Trial Court Erred in Holding the Sales Tax Proposition Did Not Contemplate Funding Expenses for Day-to-Day Operations.
(3) The Trial Court Erred When It Failed to Exclude Plaintiffs' Exhibits C and Exhibits E-K which were not attached to Plaintiffs' Motion for Summary Judgment when it was filed, and these exhibits were incompetent summary judgment evidence.
(4) The Trial Court Erred When It Failed to Exclude Incompetent Summary Judgment Evidence attached to the Plaintiffs' Opposition.

Appellate courts review judgments de novo and are not obliged to accord any deference to the trial court's findings. Plaintiffs' action seeking a declaratory judgment presents a single issue of law for determination. The single issue we must decide is whether Lecompte may continue to spend the tax revenue at issue in any manner to benefit the Lecompte Police Department.

Louisiana Homeland Security and Emergency Assistance and Disaster Act expressly states: "The term 'emergency preparedness' shall be synonymous with 'civil defense', 'emergency management', and other related programs of similar name." La.R.S. 29:723(4) (emphasis added). Thus, it is a matter of simply applying the express terms of the statute to conclude that the new concept of "emergency preparedness" replaces the former concept of "civil defense." The newer legislation also expressly includes under its ambit local police departments such as the Town of Lecompte's Police Department. See La.R.S. 29:723(5). It also expressly provides:

Because of the existing possibility of the occurrence of emergencies and disasters of unprecedented size and destructiveness resulting from terrorist events, enemy attack, sabotage, or other hostile action, or from fire, flood, earthquake, or other natural or manmade causes, and in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters, and in order to detect, prevent, prepare for , investigate, respond to, or recover from these events, and generally to preserve the lives and property of the people of the state of Louisiana, it is hereby found and declared to be necessary:
To create and provide for designation of the Governor's Office of Homeland Security and Emergency Preparedness as the state homeland security and emergency preparedness agency and to authorize the creation of local organizations for emergency preparedness in the political subdivisions of the state.

La.R.S. 29:722(A)(1) (emphasis added).

This legislation authorizes local political subdivisions, such as Lecompte, to provide for emergency preparedness just as they provided for civil defense prior to the change in legislation and terminology. Important to the determination here, the statute also sets forth the idea of preparedness as the lynchpin of the State and local government's emergency preparedness and disaster response responsibilities. It speaks in terms of "preparation," detection, and prevention as well as response and recovery. The trial court here considered only the goals of response and recovery, i.e., the after-the-fact treatment of disasters and emergencies and the attendant costs. This notion is wholly unsupportable under a clear reading of the governing legislation and defies common sense. For emergency responders, such as local police and fire departments, to be ready and able (prepared and equipped) to address emergent situations or disasters unexpectedly impacting the general public they must make sufficient preparation beforehand . They cannot wait until disaster strikes to decide what they needed to do beforehand to address such disasters or emergent events. When disaster strikes it is far too late to prepare. The legislation contemplates immediate response and our citizens rightfully expect no less. It is nonsensical to suggest that the prior legislation or the current legislation allow only for revenue to be provided emergency responders after disaster strikes.

We find the trial court erred as a matter of law incorrectly interpreting and applying La.R.S. 29:722 -23, and we reverse the trial court's granting summary judgment in favor of Plaintiffs. We further find Defendants are entitled to summary judgment as a matter of law.

We additionally find the trial court erred in denying Defendants' motion to exclude Plaintiffs' Exhibits C and Exhibits E-K. Defendants timely objected to these exhibits and we find the trial court, and this court on de novo review, cannot consider these exhibits. We note, however, that even if these exhibits were admissible, they would not change the result we reach as a matter of law. The current version of La.Code Civ.P. art. 966(A)(4), effective January 1, 2016, provides in pertinent part:

The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

Official Comment (c) of 2015 to La.Code Civ.P. art. 966 states:

Subparagraph (A)(4), which is new, contains the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached. Although a memorandum is not a pleading or evidence, it is a proper document that can be used by a party to advance his arguments in support of or in opposition to the motion. See, e.g. , Meaux v. Galtier , 972 So.2d 1137 (La. 2008). An opinion of the medical review panel cannot be filed in support of or in opposition to the motion unless it is properly authenticated and attached to the affidavit or deposition. Article 1458 requires that interrogatories be answered under oath, and only answers that are made under oath may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph continues the rule that no oral testimony shall be allowed at a hearing on a motion for summary judgment, even if all parties agree. See Mapp Construction, LLC v. Amerisure Mutual Insurance Co. , 143 So.3d 520 (La. App. 1st Cir. 2014). All supporting documents may be filed electronically if provided for by local rules or the clerk of court.

Further, La.Code Civ.P. art. 967(A) and (B) provides:

(A) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
(B) When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The trial court, and this court on de novo review, may only consider evidence that is admissible under the express provisions of La.Code Civ.P. arts. 966 -67. The exhibits were not attached to the motion for summary judgment. They are not certified or authenticated in any manner and are not attached to any sworn deposition or affidavit. Therefore, they may not be considered. Further, Louisiana Code of Civil Procedure Article 1458(A) (emphasis added) requires that:

Each interrogatory shall be answered separately and fully in writing under oath , unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The written answer or reasons for objection to each interrogatory shall immediately follow a restatement of the interrogatory to which the answer or objection is responding. The answers are to be signed by the person making them. When interrogatories are served on a specific party, that party shall verify he has read and confirmed the answers and objections. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty days after the service of the interrogatories, except as set forth in Paragraph B of this Article. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Article 1469 with respect to any objection to or other failure to answer an interrogatory.

Both sets of interrogatories are signed by the attorneys representing their respective parties. In neither instance has either the attorney or the party answering signed the document under oath. Louisiana Code of Civil Procedure Article 966(A)(4) authorizes "answers to interrogatories" as one of the documents that "may be filed in support of or in opposition to the motion[.]" Id. As noted above, Comment (c) to Article 966(A)(4) (emphasis added) states: " Article 1458 requires that interrogatories be answered under oath, and only answers that are made under oath may be filed in support of or in opposition to a motion for summary judgment ." This indicates that only when interrogatories are answered under oath as required may they be used in support of or in opposition to a motion for summary judgment.

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. See Boland v. West Feliciana Parish Police Jury , 2003-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813 writ denied , 2004-2286 (La. 11/24/04), 888 So.2d 231. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Williams v. Memorial Medical Center , 2003-1806 (La. App. 4th Cir. 3/17/04), 870 So.2d 1044, 1053, writ denied , 2004-0963 (La. 6/4/04), 876 So.2d 93.

Nettle v. Nettle , 15-1875, 15-1876, pp. 4-5 (La.App. 1 Cir. 9/16/16), 212 So.3d 1180, 1183, writ denied , 16-1846 (La. 12/16/16), 212 So.3d 1170. See also , King v. Pontchartrain Mortg. Co. , 13-633 (La.App. 5 Cir. 1/31/14), 134 So.3d 19, writ denied , 14-430 (La. 4/11/14), 138 So.3d 610, and cases cited therein. See also , Board of Ethics Matter of Monsour , 16-1159 (La. App. 1 Cir. 6/21/17), 233 So.3d 625, writ granted , 17-1274 (La. 12/5/17), 231 So.3d 623, affirmed , 17-1274 (La. 5/1/18), 249 So.3d 808.

Because both parties' Answers to Interrogatories were not made under oath, and there is no attestation made before a notary public that these documents were answered under oath, they are not competent summary judgment evidence. Louisiana Code of Civil Procedure Article 967(A) and (B) require affidavits in support of or in opposition to a motion for summary judgment be made under oath and all documents be verified or certified by oath or attached to an affidavit. That article further allows an affidavit to be "supplemented or opposed by depositions, answers to interrogatories, or by further affidavits." The Code requires that all three of these means by which an affidavit may be supplemented must be made under oath. It therefore stands to reason that only answers to interrogatories made under oath may be used in support of or in opposition to a motion for summary judgment. Thus, these unsworn documents are not competent evidence.

For the reasons stated we hereby grant Defendants' cross motion for summary judgment and herewith render judgment in favor of Defendants declaring that the tax revenue generated through Town of Lecompte Local Ordinance No. 1137 may properly be used for expenses in the Lecompte Police Department that directly relate to preparation and response to the natural disasters and other emergencies set forth in La.R.S. 29:722 -23. We hasten to add that not all costs or expenses of the Lecompte Police Department fall within the statutory authorization. For example, hiring bonuses, pay raises, employee benefits and the like would not be directly related to expenditures for emergency preparedness. We remand the matter to the trial court for further proceedings consistent with this ruling.

REVERSED; RENDERED; REMANDED.

      A. Because of the existing possibility of the occurrence of emergencies and disasters of unprecedented size and destructiveness resulting from terrorist events, enemy attack, sabotage, or other hostile action, or from fire, flood, earthquake, or other natural or manmade causes, and in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters, and in order to detect, prevent, prepare for , investigate, respond to, or recover from these events, and generally to preserve the lives and property of the people of the state of Louisiana, it is hereby found and declared to be necessary:
      (1) To create and provide for designation of the Governor's Office of Homeland Security and Emergency Preparedness as the state homeland security and emergency preparedness agency and to authorize the creation of local organizations for emergency preparedness in the political subdivisions of the state.
      (2) To confer upon the governor and upon the parish presidents the emergency powers provided in this Chapter.
      (3) That statewide and local plans for homeland security and emergency preparedness be prepared and approved without further delay and be maintained current to the maximum extent possible.
      (4) To reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, acts of terrorism, or hostile military or paramilitary action.
      (5) To prepare for prompt and efficient evacuation, rescue, care, and treatment of persons victimized or threatened by disasters or emergency.
      (6) To provide a setting conducive to the rapid and orderly start of restoration and rehabilitation of persons and property affected by emergencies or disasters.
      (7) To authorize and provide for cooperation in emergency or disaster prevention, mitigation, preparedness, response, and recovery.
      (8) To authorize and provide for management systems embodied by coordination of activities relating to emergency or disaster prevention, mitigation, preparedness, response, and recovery by agencies and officers of this state, and similar state-local, interstate, and foreign activities in which the state and its political subdivisions may participate.
      B. It is further declared to be the purpose of this Chapter and the policy of the state of Louisiana that all homeland security and emergency preparedness functions of the state be coordinated to the maximum extent possible with the comparable functions of the federal government, other states and localities, and private agencies of every type, to the end that the most effective preparation and use may be made of the resources and facilities available for dealing with any emergency or disaster that may occur....
      La.R.S. 29:722.
      (2) "Disaster" means the result of a natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related events, forest and marsh fires, and man-made disasters, including but not limited to nuclear power plant incidents, hazardous materials incidents, oil spills, explosion, civil disturbances, public calamity, acts of terrorism, hostile military action, and other events related thereto.
      (3) "Emergency" means:
      (a) The actual or threatened condition which has been or may be created by a disaster; or
      (b)(i) Any natural or man-made event which results in an interruption in the delivery of utility services to any consumer of such services and which affects the safety, health, or welfare of a Louisiana resident; or
      (ii) Any instance in which a utility's property is damaged and such damage creates a dangerous condition to the public.
      (iii) Any national or state emergency, including acts of terrorism or a congressional authorization or presidential declaration pursuant to the War Powers Resolution (50 U.S.C. 1541 et seq. ).
      (4) "Emergency preparedness" means the mitigation of, preparation for , response to, and the recovery from emergencies or disasters. The term "emergency preparedness" shall be synonymous with "civil defense", "emergency management", and other related programs of similar name.
      (5) "Essential workforce" or "critical workforce" means public safety officials, disaster response personnel, and other such employees of federal, state, and local governmental agencies, or contractors of such agencies and specific private sector employees, possessing important skills and training in emergency mitigation, preparedness, response, and recovery as designated by the parish homeland security and emergency preparedness agency or in the absence of such designation by the parish homeland security and emergency preparedness agency, such designation by the Governor's Office of Homeland Security and Emergency Preparedness. Businesses who deem private sector employees essential or critical for mitigation, preparedness, response, and recovery of private business assets and resources shall identify such employees and obtain the necessary designation and credentials for such employees to be classified essential or critical. In addition to identifying personnel to the parish homeland security and emergency preparedness agency, or in the absence thereof, to the Governor's Office of Homeland Security and Emergency Preparedness, a licensed private security company shall submit a list of their employees and their assignment to the Louisiana State Board of Private Security Examiners for any employee that the private security company wants to be designated and classified as essential or critical workforce.
      La.R.S. 29:723 (emphasis added).


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Bradley BROUSSARD v. GULFPORT ENERGY CORPORATION, et al.
    18-840
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Randall Kurt Theunissen, S. Brian Perry, Allen & Gooch, Post Office Box 81129, Lafayette, Louisiana 70598-1129, (337) 291-1000, Counsel for Defendants/Appellees: Wet Tech Lighting, Inc., Wet Tech Energy, Inc.
    Robert A. Mahtook, Jr., Mahtook & LaFleur, LLC, Post Office Box 3089, Lafayette, Louisiana 70502-3089, (337) 266-2189, Counsel for Defendant/Appellee: AFX Petrologix, LLC
    Leo Raymond McAloon, III, Gieger, LaBorde & Laperouse, LLC, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, Louisiana 70139, (504) 561-0400, Counsel for Defendant/Appellee: Shamrock Management, LLC
    Marc D. Moroux, Juneau David, APLC, Post Office Drawer 51268, Lafayette, Louisiana 70505-1268, (337) 261-1408, Counsel for Defendant/Appellee: Gulfport Energy Corporation
    Thomas M. Flanagan, Sean Brady, Andy Dupre, Anders F. Holmgren, Flanagan Partners LLP, 201 St. Charles Avenue, Suite 2405, New Orleans, Louisiana 70170, (504) 569-0235, Counsel for Plaintiff/Appellant: Bradley Broussard
    J. Kyle Findley, Kala Sellers, Adam Lewis, Arnold & Itkin, LLP, 6009 Memorial Drive, Houston, Texas 77007, (713) 222-3800, Counsel for Plaintiff/Appellant: Bradley Broussard
    F. Douglas Ortego, LeBas Law Offices, 201 Rue Iberville, Suite 100, Lafayette, Louisiana 70508, (337) 236-5500, Counsel for Intervenor: American Interstate Insurance Company
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff/Appellant, Bradley Broussard, appeals the trial court's grant of summary judgment in favor of Defendant/Appellee, Shamrock Management, L.L.C. For the following reasons, the trial court's judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

This personal injury matter stems from injuries sustained by Broussard on January 21, 2015, while working in the course and scope of his employment with AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole when it broke, causing him to fall into the water below and sustain injuries. As a result, Broussard filed an Original Petition for Damages on May 6, 2015, against Gulfport Energy Corporation as the owner and/or operator of the platform based upon negligence and premises liability. Broussard's workers' compensation insurer, American Interstate Insurance Company, filed a Petition of Intervention. On April 26, 2016, Broussard filed his First Amended Petition for Damages, naming Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C., as additional Defendants. In his amended petition, Broussard alleged that Wet Tech Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly inspect and maintain the navigational light and pole.

On March 20, 2018, Shamrock filed a motion for summary judgment, alleging that it was not liable for Broussard's injuries. Shamrock stated that it did not own or operate the platform and had no employees working for Gulfport on the date of the incident at any location. Broussard filed an opposition memorandum. Following a hearing on May 14, 2018, the trial court granted Shamrock's motion for summary judgment. The trial court's written judgment was signed on May 30, 2018, which Broussard now appeals.

On appeal and in his sole assignment of error, Broussard contends that the trial court legally erred "in finding the absence of disputed material facts and granting summary judgment as a matter of law."

STANDARD OF REVIEW

The standard of review utilized by an appellate court when reviewing a trial court's grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria enunciated in La.Code Civ.P. art. 966(A)(3) provides that "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." "A fact is 'material' when its existence or nonexistence may be essential to [a] plaintiff's cause of action under the applicable theory of recovery." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Additionally, 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. Id.

Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover's burden of proof on summary judgments as follows:

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.

DISCUSSION

Broussard contends the trial court legally erred by finding the absence of disputed material facts and granting summary judgment as a matter of law. His argument stems from a contract between Gulfport and Shamrock whereby the latter ran production operations and performed platform inspections through its employee, Terry Benoit. Broussard asserts that Benoit was employed by Shamrock on the date of the accident and that his negligent inspections render Shamrock vicariously liable. Even if this court finds that Benoit was not employed by Shamrock on the date of the accident, Broussard asserts that Benoit was negligent in his inspections before December 2014, during his employment with Shamrock.

In opposition, Shamrock contends that Benoit was not its employee on the date of the accident. According to Shamrock, Benoit stopped working for it approximately five and one-half weeks prior to the incident, which is when the contract between Shamrock and Gulfport terminated. Shamrock further submits that there is no evidence that Benoit performed negligent visual inspections prior to the incident when he worked for Shamrock and during the existence of the contract between Shamrock and Gulfport.

In his amended petition, Broussard claims that Shamrock breached its duty by failing to maintain, inspect, and/or repair the premises, equipment, or work environment and by failing to warn of hidden dangers and/or defective conditions. His claims against Shamrock are based upon general negligence. Negligence is governed by La.Civ.Code art. 2315(A) and provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "Louisiana courts use a duty-risk analysis in negligence cases to determine whether liability exists under the facts of a particular case." Cormier v. Albear , 99-1206, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 250, 254. This analysis requires a plaintiff to prove five separate elements, as follows:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages.

Christy v. McCalla , 11-366, pp. 8-9 (La. 12/6/11), 79 So.3d 293, 299.

Whether a party owes a duty is a question of law. Hardy v. Bowie , 98-2821 (La. 9/8/99), 744 So.2d 606. In order to determine whether a duty exists, courts assess whether jurisprudential, statutory, or policy rules may be applicable to the facts and circumstances of the case. Id. "[T]he particular facts and circumstances of each individual case determines the extent of the duty and the resulting degree of care necessary to fulfill the duty." Socorro v. City of New Orleans , 579 So.2d 931, 938 (La.1991). "In general, a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations." Lyncker v. Design Engineering, Inc. , 07-1522, p. 2 (La.App. 4 Cir. 6/25/08), 988 So.2d 812, 814, writ denied , 08-1669 (La. 10/24/08), 992 So.2d 1036.

Shamrock contends that it owed no duty to Broussard at the time of the accident because his injury occurred after the termination of Shamrock's contract with Gulfport. The record on review reveals the evidence submitted by Shamrock, includes: Broussard's and Benoit's deposition testimony; Gulfport's answers to Broussard's Interrogatories and Request for Production of Documents; Shamrock's objections and responses to Broussard's first set of Interrogatories and Requests for Admissions; and an affidavit of Becky McManus. According to McManus's affidavit, she is the Vice President of Administration for Shamrock and has held this position since September 29, 2015. She is in charge of Shamrock's Human Resource Department and is aware of the employees' personnel files and employment status. McManus avers that Benoit was employed by Shamrock from June 30, 2009 until December 15, 2014, when he stopped working for Shamrock and started working for Grizzly Marine. According to McManus, Benoit was not employed by Shamrock on the day of Broussard's accident. McManus attested that Shamrock had no employees working for Gulfport at its facilities on January 21, 2015. McManus's affidavit is supported by Shamrock's response to Broussard's Interrogatories and Request for Production of Documents wherein it noted the following: "Shamrock had no employees working for Gulfport at the Hackberry field on the date of the incident."

In order to show a genuine issue of material fact with respect to identifying Shamrock as Benoit's employer on the date of the incident, Broussard relied upon Gulfport's discovery responses which state: "Upon information and belief, Gulfport believes that ... Terry Benoit, was employed by Shamrock Management." Broussard also relied upon Benoit's deposition testimony wherein he admitted to working for Shamrock through December 2015. We note that this date, i.e., December 2015, falls one year after Benoit was alleged to have stopped working for Shamrock, i.e., December 15, 2014, according to McManus's affidavit.

Our review of Benoit's testimony shows that the following colloquy occurred at the beginning of his deposition:

Q. How long were you with Shamrock?
A. Until--that was probably--I don't know specific.
Q. You can't tell me a date?
A. Well, it's around in December, somewhere around in that area of whenever the contract expired, when they lost the contract and we went with another company.
Q. You remember the date generally when that happened?
A. In December.
Q. December of?
A. 2015, I believe it is.
Q. So December of 2015, and then you said it went to a new contractor?
A. Right. Yes.
Q. And who was the new contractor?
A. Grizzly.

Later in his deposition, Benoit clarified that he no longer worked for Shamrock as of December 15, 2014, which is in line with McManus's affidavit and Shamrock's discovery responses. Specifically, his testimony provides:

Q. .... If your Shamrock personnel file says that your last day of work for Shamrock was December 15, 2014, do you have anything to dispute that?
A. No, sir.
Q. And so if that information is correct, you were no longer employed by Shamrock as December 15, 2014?
....
A. Correct.
....
Q. So after you left Shamrock's employment, did you immediately go to employment of Grizzly Marine?
A. Yes.
Q. Is it your testimony that on the date of this incident you were employed by Grizzly Marine?
A. Correct.
Q. Is it your testimony that for the five weeks before this incident from the day you left Shamrock you went--you were employed by Grizzly?
A. Correct.

Additional deposition testimony by Benoit reveals that he was not employed by Shamrock on the day of the accident, as exhibited in the following colloquy:

Q. Let's go back. Any inspections that you would have--any visual inspections of the Nav-Aid lights you would have done prior to December 2014, you would have done as an employee of the prior contractor before Grizzly, right?
A. Yes.

Broussard's own deposition testimony reveals his uncertainty as to whether Shamrock employed Benoit on the day of the incident. This is shown based upon the following colloquy:

Q. Do you now know by whom Terry Benoit was employed on January 21st, 2015?
A. I guess so.
Q. Who was his employer on that day?
A. I believe Shamrock.
Q. Okay. And that's speculation on your part rather than knowledge?
A. Right.

We find that the evidence in the record reveals that Benoit worked for Grizzly on the date of the accident. Any inconsistency with the date initially provided in Benoit's deposition was clarified through his additional deposition testimony. Benoit's deposition testimony along with McManus's affidavit and Shamrock's discovery responses directly contradict the evidence offered by Broussard in his effort to create a genuine issue of material fact with respect to the identity of Shamrock as Benoit's alleged employer on the date of the accident.

An additional argument asserted by Broussard on appeal is that prior to December 2014 when Benoit was employed by Shamrock, he negligently inspected the platform where the accident occurred. In Louisiana, tort liability exists for negligent inspection. See Winget v. Colfax Creosoting Co. , 626 So.2d 370 (La.App. 3 Cir. 1993), writ denied , 633 So.2d 580 (La. 2/4/94). "Our civilian tort law provides an action to those injured by the negligent acts of another party. Liability is determined by applying the duty-risk analysis[.]" Id. at 371. "Liability based on negligence under [ La.Civ.Code art.] 2315 can only be imposed when a defendant is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time." Hardenstein v. Cook Constr., Inc. , 96-829, pp. 7-8 (La.App. 1 Cir. 2/14/97), 691 So.2d 177, 183, writ denied , 97-686 (La. 4/25/97), 692 So.2d 1093. Thus, we will use the duty-risk analysis to determine whether Shamrock is vicariously liable for Benoit's alleged negligent inspections of the navigational light.

Benoit's deposition testimony reveals that he was a production operator for different contractors who had contracted with Gulfport at different times and was assigned to Hackberry Field, State Lease 50, from 2009 to 2016. As a production operator, he would maintain well control and produce hydrocarbons and fluids out of the well. Benoit also performed monthly visual inspections of the platforms, which he referred to as cribbings, and its fixtures. His visual inspections required him to walk around and check the lights to ensure that they were "in proper working condition." If Benoit found any issues during his visual inspections, he would report them to his supervisor, a Gulfport employee. According to Benoit's testimony, other inspections were performed by third parties apart from his visual inspections. Benoit testified that he would take third parties to the sites where inspections were performed. However, his supervisor/production foreman was in charge of managing whether inspections, maintenance, and repairs were performed. Benoit advised that he did not perform maintenance on the well sites at State Lease 50.

Benoit testified at length regarding the navigational light and cribbing where Broussard's accident occurred. Benoit noted that he visually inspected the navigational light at least once a month prior to the accident. During these visual inspections, he never saw anything that needed repair. Benoit acknowledged that during his final visual inspection prior to Broussard's accident, it appeared to be in good working order. He also acknowledged the pole's condition in the following colloquy:

Q. ... At no point was the condition of that pole reported to you as rotting or in need of replacement?
A. Correct.
Q. And you never made such an observation either?
A. Correct.

Broussard's deposition testimony in the record indicates that he was the light inspector for AFS who inspected the subject light on behalf of Gulfport. Broussard explained that he takes certain precautions to ensure a safe work area, which includes looking at poles, brackets, and mounting fixtures. He took those precautions on the day in question by stating: "Yeah, I looked at it and I didn't see anything wrong." Broussard advised that nothing looked rusty, corroded, discolored, weathered, unsafe, or hazardous. His testimony reveals that he was in the process of removing bolts from the light prior to the incident. When asked whether he believed that Benoit was responsible for the accident, Broussard replied, "[n]o, not really." Broussard explained that Benoit was rushing him on the day in question. However, Broussard admitted that he had authority to stop work which he did not utilize because he did not "feel anything was unsafe." Broussard agreed that whatever caused the pole to break, neither he nor Benoit could see it.

The foregoing shows that Benoit had no actual or constructive knowledge of a defect in the navigational light and pole. This is supported by the evidence in the record which reveals that Benoit never observed a defect during his monthly visual inspections along with Broussard's testimony that the area looked safe and that whatever caused the pole in question to break, neither he nor Benoit could see it.

Accordingly, the trial court correctly granted summary judgment in favor of Shamrock. This assignment of error is without merit.

DECREE

For the above reasons, the trial court's judgment granting the motion for summary judgment in favor of Defendant/Appellee, Shamrock Management, L.L.C, is affirmed. All costs associated with this appeal are assessed to Plaintiff/Appellant, Bradley Broussard.

AFFIRMED.


text:
    Amy L. BETANCOURT v. Marcus TRAHAN d/b/a Redmarque Construction, LLC
    18-1002
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Van C. Seneca Van C. Seneca, L.L.C. 405 West College Street Lake Charles, Louisiana 70605 (337) 439-1233 Counsel for Defendant/Appellee: Marcus Trahan d/b/a Redmarque Construction, LLC
    Kevin J. Koenig Raggio, Cappel, Chozen & Berniard 1011 Lakeshore Drive, Suite 500 Lake Charles, Louisiana 70601 (337) 436-9481 Counsel for Plaintiff/Appellant: Amy L. Betancourt
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff, Amy Betancourt, appeals from a judgment granting Defendant's, Marcus Trahan d/b/a Redmarque Construction, LLC's, Exception of No Cause of Action and Peremption. For the following reasons, we amend the trial court judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

Plaintiff purchased a newly constructed home in Lake Charles, Louisiana, from Defendant on January 3, 2011. She filed a Petition for Damages (original petition) against Defendant in late 2011 under the Louisiana New Home Warranty Act (NHWA) alleging defects regarding the kitchen countertop. In her original petition, Plaintiff alleged that there was "a circular stain on the granite counter top located near the sink that extended down 3-4 tiles," that she had pointed out "various defects" to Defendant prior to her purchase of the home, and that Defendant had assured her that "all defects would be corrected" in a few weeks. She further claimed that Defendant's tile installer replaced the defective tiles with tiles that did not match the existing tile. Plaintiff alleged that she expressed to Defendant her dissatisfaction with the repair done by his subcontractor, after which she asked that the countertop be "completely replaced so as to match throughout." Plaintiff additionally alleged that the countertop was not adequately supported, resulting in its being uneven and causing cracks to form in the wall grouting. She claimed that she had made amicable demand upon Defendant to repair the defective work to no avail, and she sought judgment in her favor for damages to correct the defects.

In a First Supplemental and Amended Petition (supplemental petition) filed in September 2015, Plaintiff sought to add a paragraph thirteen to her original petition, wherein she asserted that:

After moving into the home, [she] discovered the following deficiencies in the construction:
a) failure of the sealant and stain on the homes' concrete floors due to improper materials for the application;
b) staining on the bathroom ceiling as a result of water leak;
c) improper repair of the water leak and stains;
d) failure to properly support the kitchen countertop;
e) mismatched tiles on the kitchen counter;
f) cracks in sheetrock due to defendant's failure to properly tape and float joints;
g) defective light fixtures; and
h) improper use of interior door hinges in exterior applications.

Plaintiff also sought to add to her original petition a request for attorney fees.

In its answer to the supplemental petition, Defendant generally denied the allegations contained therein. Defendant asserted that "many of the allegations in Plaintiff's" supplemental petition referred to damages that were "allegedly present when Plaintiff moved in [but are] not included in her previous petition." Several months after answering the suit, Defendant filed an Exception of No Cause of Action and Peremption (exception) wherein it sought dismissal of Plaintiff's supplemental petition on the grounds that her claims were perempted by the express terms of the NHWA.

At the close of a May 21, 2018 contradictory hearing, the trial court took Defendant's exception under advisement. By judgment dated May 31, 2018, the trial court granted the exception and dismissed Plaintiff's supplemental petition. Plaintiff sought supervisory review of that ruling. Upon determining that the judgment at issue was a partial judgment, this court denied Plaintiff's application for supervisory writ and "remand[ed] this matter to the trial court for consideration of whether the judgment at issue should be designated a final, appealable judgment under La.Code Civ.P. art. 1915(B)." Betancourt v. Trahan , 18-506 (La.App. 3 Cir. 8/24/18). Upon unopposed motion of Plaintiff, the trial court designated the judgment as final and immediately appealable. This appeal followed, and Plaintiff is now before this court asserting that:

1. The Trial Court erred in concluding Plaintiff's First Supplemental and Amending Petition failed to relate back to the original Petition when the Amendment arose out of the same transaction or occurrence set forth in the original Petition.
2. The Trial Court erred in dismissing Plaintiff's First Supplemental and Amending Petition, in its entirety, when it held only paragraph 13 items a, b, c, f, g, and h were perempted.

DISCUSSION

Louisiana Revised Statutes 9:3144(A), provides in pertinent part:

[E]very builder warrants the following to the owner:
(1) One year following the warranty commencement date,[ ] the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

The NHWA additionally provides, however, that:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of [the NHWA].

La.R.S. 9:3145(A). The NHWA explicitly states that "[a]ny action to enforce any warranty provided in this Chapter shall be subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in R.S. 9:3144." La.R.S. 9:3146.

"Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period." La.Civ.Code art. 3458. "[A] supplemental petition filed after a peremptive period has run does not relate back to the time of filing of the original petition." Robin v. Allstate Ins. Co. , 02-689, p. 11 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 49, writ denied, 03-1818 (La. 10/17/03), 855 So.2d 763. In the context of a lawsuit brought to challenge the qualifications of a candidate in an election, this court noted that because the statutorily mandated "time period ... for challenging a candidate's qualification to hold the office for which he is running is a peremptive time period, ... the cause of action ceases to exist after the passage of that time period[, and] the claim is subject to the exception of no cause of action." Fontenot v. Lartigue , 14-1327, p. 5 (La.App. 3 Cir. 12/30/14), 153 So.3d 1287, 1290.

The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts that are alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.P. art. 931. Therefore, in considering a trial court ruling on an exception of no cause of action, the appellate court accepts the allegations of fact in the petition as true. The determination is based on whether the face of the petition shows the plaintiffs are legally entitled to the relief sought therein. Everything on Wheels Subaru, Inc., 616 So.2d 1234.

Marsh Eng'g Inc. v. Parker , 04-509, p. 3 (La.App. 3 Cir. 9/29/04), 883 So.2d 1119, 1122, writ denied, 04-2669 (La. 1/28/05), 893 So.2d 73.

The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief.

Ramey v. DeCaire , 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 119 (citations omitted).

In his exception, Defendant argued that the new claims contained in Plaintiff's supplemental petition should be dismissed as they had not been asserted within the one-year peremptive period. Citing Naquin v. Lafayette City-Parish Consolidated Government , 06-2227 (La. 2/22/07), 950 So.2d 657, Defendant maintained that any claims asserted by Plaintiff after the peremptive period had run were forever barred, and thus, could not be considered. In his appellee brief, Defendant asks this court to reject Plaintiff's argument that because she alleged in her original petition that she "walked through the home with [Defendant] and pointed out various defects, including, but not limited to" the stain on the countertop, she had "the right to amend her complaint to assert warranty claims based on any other alleged defects in the home." In that regard, Defendant notes that Plaintiff has not alleged that she provided him with timely written notice, as required by La.R.S. 9:3145, of the defects listed in her supplemental petition.

At the hearing on Defendant's exception, counsel for Plaintiff argued that because the original petition described "various defects, including but not limited to the countertop," and because the claims asserted in her supplemental petition arose out of the same transaction or occurrence as that of her original petition, those claims should relate back to the filing date of the original petition. Plaintiff's counsel further argued that because of the original petition's reference to "various defects," Defendant was clearly apprised that she was seeking redress for defects other than, and in addition to, those involving the countertop. Plaintiff now suggests that Defendant should have filed an exception of vagueness if he questioned what defects she was referring to in her December 2011 original petition when she referred to "various defects, including, but not limited to" a stain on the granite countertop.

In the judgment granting Defendant's "exception of no cause of action based on peremption," the trial court stated:

As to the peremptory aspect of the case[,] the question becomes "does an untimely amended petition relate back to a timely original petition if the original pleading gave fair notice of the general situation out of which the amended claim arises." The original pleadings are directed at the installation of the granite countertop and the cracking of the wall grouting. The petition states no further cause of action. Certainly an amendment to the petition involving items related to the countertop would be allowed[ ] but not the items enumerated in paragraph 13 a), b), c), f), g) and h) of the amended petition. No allegation was made that defendant was requested to correct those items and did not.

In Naquin , 950 So.2d at 668 (quoting Hebert v. Doctors Memorial Hospital , 486 So.2d 717 (La.1986) ) (emphasis removed), the supreme court explained the difference between peremption and prescription:

Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation; peremption, however, extinguishes or destroys the right ( La. Civ.Code Art. 3458 ). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.

After having performed a de novo review of the record, we find no error in the trial court's determination that the allegations of the supplemental petition regarding the addition of paragraph thirteen, items a), b), c), f), g), and h) to the original petition are perempted. The legislature was deliberate in its pronouncement of what was not covered by the NHWA, listing nineteen categories of items that "shall" be excluded from the builder's warranty, "[u]nless the parties otherwise agree in writing." La.R.S. 9:3144(B). Included in that exclusionary language is "[a]ny defect not reported in writing by registered or certified mail to the builder ... prior to the expiration of the period specified in Subsection A of the Section for such defect plus thirty days." La.R.S. 9:3144(A)(16).

Moreover, we disagree with Plaintiff's belief that it was incumbent upon Defendant to file an exception of vagueness to ascertain the specific defects for which Plaintiff sought redress in her open-ended, catchall reference to "various defects, including, but not limited to" a stain on the granite countertop which she alleged in the original petition. As Plaintiff correctly notes, Defendant, in answer to the original petition, denied the allegations of paragraphs three and four "because the term 'all defects' [wa]s not sufficiently defined." Certainly, the onus was on Plaintiff to supplement her original petition at that time to allege with specificity any defects other than those concerning the countertop rather than to wait over three and one-half years to do so. Thus, we conclude that the claims that she asserted in her supplemental petition, save those related to the countertop, were perempted and subject to dismissal for failure to state a cause of action. Plaintiff's first assigned error lacks merit.

With regard to Plaintiff's argument that the trial court should not have dismissed her entire supplemental petition upon its determination that the newly asserted warranty claims which are unrelated to the allegedly defective countertop were perempted, we note that Plaintiff failed to present this issue to the trial court. Pursuant to Uniform Rules-Courts of Appeal, Rule 1-3, if an issue is not raised in the trial court, this court is not required to address it on appeal. Nevertheless, Defendant acknowledges that insofar as she is seeking attorney fees based on her allegedly defective countertop, "it is not believed that the trial court intended to dismiss those claims." We find merit to Defendant's contention. Accordingly, in the interest of justice, we will amend the appealed judgment to the extent that it dismissed Plaintiff's entire supplemental petition rather than only the portion wherein she sought to add a paragraph thirteen, items a, b, c, f, g, and h.

DECREE

For the foregoing reasons, the trial court judgment granting the Exception of No Cause of Action and Peremption filed by Defendant, Marcus Trahan d/b/a Redmarque Construction, LLC, is amended to provide that only the portion of the First Supplemental and Amended Petition whereby Plaintiff, Amy Betancourt, sought to add to her original petition a paragraph thirteen, items a), b), c), f), g), and h), is stricken and dismissed, as opposed to the entire First Supplemental and Amended Petition. In all other respects, the judgment is affirmed. All costs of this appeal are assessed against Amy Betancourt.

AFFIRMED AS AMENDED.

      See La.R.S. 9:3141 -3150.

      Although Plaintiff did not reference the NHWA in her original petition, the parties agree that it is applicable to this suit.

      Defendant also sought dismissal of Mr. Trahan, individually, as a party defendant. The trial court denied that aspect of the exception, but Plaintiff does not appeal that part of the judgment.

      " 'Warranty commencement date' means the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first." La.R.S. 9:3143(7).

      See La.Code Civ.P. art. 1153 which provides that "[w]hen the action of defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading."

      Although Plaintiff filed a memorandum in opposition to Defendant's exception in the trial court, it only addressed whether Mr. Trahan was a proper party defendant.

      The items enumerated in paragraph thirteen d) and e) of the amended petition concerned the countertop referenced in the original petition.

      The claims sought to be asserted with the addition to the original petition of a paragraph thirteen, items d) and e) concern the countertop.

      Uniform Rules-Courts of Appeal, Rule 1-3, entitled "Scope of Review," states:
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10 (B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Brandon NOLAN
    19-188
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2019
    Keith A. Stutes, District Attorney, Fifteenth Judicial District, P. O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR RESPONDENT: State of Louisiana
    Ted L. Ayo, Attorney at Law, 10 S. St. Charles St., Abbeville, LA 70510-5108, (800) 880-1117, COUNSEL FOR RESPONDENT: State of Louisiana
    Sean Brucker, 15th J.D. Public Defender's Office, 204 Charity Street, Abbeville, La 70510, (337) 898-2090, COUNSEL FOR DEFENDANT/APPLICANT: Brandon Nolan
    Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

Defendant, Brandon Nolan, was charged by bill of information filed on May 15, 2017, with unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, and flight from an officer, a violation of La.R.S. 14:108.1. Defendant filed a motion to suppress with memorandum in support thereof on July 25, 2018. The trial court denied the motion at a hearing held on January 31, 2019.

FACTS AND PROCEDURAL HISTORY

Defendant filed a notice of intent to seek review of the trial court's ruling on February 1, 2019. A return date, which was timely extended, was set. Defendant is now before this court via application for writ of supervisory review seeking reversal of the trial court's denial of his motion to suppress.

ON THE MERITS

In his only assignment of error, Defendant contends the trial court erred in denying his motion to suppress because law enforcement entered the curtilage of his home without a warrant to check the Vehicle Identification Number (VIN) of the car he was allegedly driving.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that "[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." La. Const. art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment's warrant exceptions. State v. Freeman , 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630. The state has the burden of showing that one of the exceptions applies. Id.

State v. Vail , 17-354, pp. 46-47 (La.App. 3 Cir. 12/28/17), 236 So.3d 644, 676, writ denied , 18-202 (La.App. 3 Cir. 11/20/18), 256 So.3d 998, cert. denied , --- U.S. ----, 139 S.Ct. 1232, 203 L.Ed.2d 246 (2019). See also La.Code Crim.P. art. 703(D). " 'The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion.' State v. Lee , 05-2098, p. 15 (La. 1/16/08), 976 So.2d 109, 123." Vail , 236 So.3d at 678.

In his motion, Defendant sought to suppress all evidence and testimony regarding the VIN of the vehicle he was driving when he was arrested. He alleged the viewing of the VIN by police was an unconstitutional search because it was conducted during an unlawful warrantless intrusion into the curtilage of his home. Furthermore, even if the intrusion into the curtilage was not unlawful, the search of the vehicle was not a search incident to arrest and the automobile exception did not apply. Defendant relied on Collins v. Virginia , --- U.S. ----, 138 S.Ct. 1663, 201 L.Ed.2d 9 (2018), to support his claims. In Collins , the Supreme Court was called upon to determine whether the automobile exception permitted the warrantless entry of a home or its curtilage in order to search a vehicle therein. The Supreme Court found that it did not.

The State called a single witness at the hearing on Defendant's motion to suppress. Officer Joshua Hebert was employed by the Abbeville Police Department on February 1, 2017. He observed Defendant driving a maroon GMC Yukon on Charity Street. Defendant was not wearing a seat belt. Officer Hebert activated the vehicle's lights. Defendant either flagged Officer Hebert to follow him or go around him. Officer Hebert then activated the vehicle's siren and "called in the vehicle for refusing to stop." Defendant stopped six or seven blocks later at his residence. Defendant pulled "head first" into the driveway "in front of the front door." Officer Hebert pulled up behind Defendant. Defendant was placed on the ground because he refused to stop. He was then handcuffed. Backup officers subsequently arrived.

Detective Trent Guidry ran the VIN on the Yukon, and it came back stolen from Harris County, Texas. The VIN was visible through the front windshield, and police had to stand in the driveway to see it. Defendant had been handcuffed and arrested at that time. Police did not have a search warrant. Defendant's residence was depicted in Defense Exhibit 1.

The trial court denied the motion, finding the case distinguishable from Collins , as Defendant was running away.

In his writ application, Defendant argues police entered the curtilage of his home to search the vehicle without a warrant, and there were no exigent circumstances present that would have permitted such entry without a warrant. Defendant asserts the State attempted to justify the intrusion by claiming his failure to stop was an exigent circumstance. However, even if that were true, hot pursuit did not justify a search of his curtilage after police had already arrested him. The State presented no evidence suggesting that destruction of evidence was a concern. Moreover, the evidence was not in plain view. Defendant contends the search in this case is identical to that in Collins .

We now discuss the facts of Collins . During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle was probably stolen and in Collins' possession. Officer Rhodes discovered photographs on Collins' Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

In Collins , the Supreme Court discussed the meaning of curtilage as follows:

[T]the Fourth Amendment's protection of curtilage has long been black letter law. "[W]hen it comes to the Fourth Amendment, the home is first among equals." Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). "At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " Ibid. (quoting Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). To give full practical effect to that right, the Court considers curtilage-"the area 'immediately surrounding and associated with the home' "-to be " 'part of the home itself for Fourth Amendment purposes.' " Jardines , 569 U.S. at 6, 133 S.Ct. 1409 (quoting Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). "The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." California v. Ciraolo , 476 U.S. 207, 212-213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).
When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines , 569 U.S. at 11, 133 S.Ct. 1409. Such conduct thus is presumptively unreasonable absent a warrant.

Id. at 1670.

The Supreme Court described the driveway where the motorcycle was parked:

[T]he driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

Id. at 1670-71. The Court found the area where the motorcycle was parked was curtilage, stating:

The " 'conception defining the curtilage' is ... familiar enough that it is 'easily understood from our daily experience.' " Jardines , 569 U.S. at 7, 133 S.Ct. 1409 (quoting Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735 ). Just like the front porch, side garden, or area "outside the front window," Jardines , 569 U.S. at 6, 133 S.Ct. 1409, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes "an area adjacent to the home and 'to which the activity of home life extends,' " and so is properly considered curtilage, id. , at 7, 133 S.Ct. 1409 (quoting Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735 ).

Id. at 1671 (emphasis added).

In Collins , Virginia cited Scher v. United States , 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938), in support of its argument that the area where the motorcycle was located was not curtilage. In Scher , federal officers received a confidential tip that a particular car would be transporting bootleg liquor at a specified time and place. Police identified and followed the car until the driver turned into a garage "a few feet back of his residence and within the curtilage." Id. at 253, 59 S.Ct. 174. As the driver exited his car, an officer approached and told the driver that he had been informed the car was carrying contraband. The driver acknowledged that there was liquor in the trunk, and the officer opened the trunk, found the liquor, arrested the driver, and seized both the car and the liquor. Although the officer did not have a search warrant, the Supreme Court upheld the officer's actions as reasonable. In Collins , the Supreme Court distinguished Scher as follows:

Scher is inapposite. Whereas Collins' motorcycle was parked and unattended when Officer Rhodes intruded on the curtilage to search it, the officers in Scher first encountered the vehicle when it was being driven on public streets, approached the curtilage of the home only when the driver turned into the garage, and searched the vehicle only after the driver admitted that it contained contraband. Scher by no means established a general rule that the automobile exception permits officers to enter a home or its curtilage absent a warrant. The Court's brief analysis referenced Carroll [v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ], but only in the context of observing that, consistent with that case, the "officers properly could have stopped" and searched the car "just before [petitioner] entered the garage," a proposition the petitioner did "not seriously controvert." Scher , 305 U.S. at 254-255, 59 S.Ct. 174. The Court then explained that the officers did not lose their ability to stop and search the car when it entered "the open garage closely followed by the observing officer" because "[n]o search was made of the garage." Id. , at 255, 59 S.Ct. 174. It emphasized that "[e]xamination of the automobile accompanied an arrest, without objection and upon admission of probable guilt," and cited two search-incident-to-arrest cases. Ibid. (citing Agnello v. United States , 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925) ; Wisniewski v. United States , 47 F.2d 825, 826 (C.A.6 1931) ). Scher 's reasoning thus was both case specific and imprecise, sounding in multiple doctrines, particularly, and perhaps most appropriately, hot pursuit. The decision is best regarded as a factbound one, and it certainly does not control this case.

Collins , 138 S.Ct. at 1674.

Virginia also cited Pennsylvania v. Labron , 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam), in support of its argument. Therein, the Supreme Court held a warrantless search of a truck parked in the driveway of defendant's father-in-law's farmhouse was proper under the automobile exception. The Collins court found the case provided little support for Virginia's position, as "there was no indication that the individual who owned the truck in Labron had any Fourth Amendment interest in the farmhouse or its driveway, nor was there a determination that the driveway was curtilage." Collins , 138 S.Ct. at 1674.

In United States v. Santana , 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976), the Supreme Court concluded that "a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping into a private place." In that case, police made a narcotics purchase from a woman. The woman took money from an officer and returned with drugs. The police arrested her and demanded to know where the money was. The woman informed them that Santana had it. When the police first approached Santana, she was standing in the front doorway of her home. However, when the police approached Santana and identified themselves, she retreated into her home. The police chased her inside and detained her. When Santana was told to empty her pockets, she produced the money the police had originally paid the woman. The Court characterized the short chase as a "true 'hot pursuit.' " Id. 427 U.S. at 42, 96 S.Ct. 2406.

Collins is distinguishable from the case at bar. The vehicle driven by Defendant was pulled into the driveway in front of the front door, and the motorcycle in question in Collins was parked near the house, beyond where a visitor would enter the walkway to the front door. Police were lawfully in Defendant's driveway, as Defendant had failed to stop when Officer Hebert activated his lights and siren, and Defendant eventually stopped his vehicle at his residence. It would be unreasonable to believe one could avoid arrest by fleeing to the curtilage of the home. Cf. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 ; Scher , 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151.

Moreover, in New York v. Class , 475 U.S. 106, 113-14, 106 S. Ct. 960, 965-66, 89 L.Ed.2d 81 (1986), the Supreme Court discussed the expectation of privacy in a VIN, for Fourth Amendment purposes, as follows:

[T]he VIN plays an important part in the pervasive regulation by the government of the automobile. A motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle, and the individual's reasonable expectation of privacy in the VIN is thereby diminished. This is especially true in the case of a driver who has committed a traffic violation. See Delaware v. Prouse , supra , 440 U.S. [648], at 659, 99 S.Ct. [1391], at 1399 [59 L.Ed.2d 660 (1979) ] ("The foremost method of enforcing traffic and vehicle safety regulations ... is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained ") (emphasis added). In addition, it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN's mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a "search." See Cardwell v. Lewis , supra, 417 U.S. [583], at 588-589, 94 S.Ct. [2464], at 2468 [41 L.Ed.2d 325 (1974) ]. In sum, because of the important role played by the VIN in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the VIN is placed in plain view, we hold that there is no reasonable expectation of privacy in the VIN.

CONCLUSION

Defendant seeks review of the trial court's January 31, 2019 denial of his motion to suppress. Defendant may not retreat to the curtilage of his home to avoid arrest. Cf. Scher v. United States , 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938) ; United States v. Santana , 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). Furthermore, there is no reasonable expectation of privacy in a Vehicle Identification Number. New York v. Class , 475 U.S. 106, 106 S. Ct. 960, 89 L.Ed.2d 81 (1986). Accordingly, Defendant's writ application is denied.

WRIT DENIED.

Conery, J., dissents and assigns written reasons.

Conery, J., dissents and assigns reasons.

I respectfully dissent.

The picture introduced in evidence shows the private driveway alongside defendant's home. The evidence at the hearing is undisputed that the defendant had pulled his car fully into the driveway alongside his home, front first, facing away from the street.

As shown by the photo, the driveway area where the vehicle was parked is clearly part of the curtilage of the home and thus given special protection by the Fourth Amendment. The arresting officer testified as follows:

Q. - - That VIN was not visible from the street, correct?
A. No, it wasn't.
Q. You had to go around to the other side of the driveway to view the VIN?
A.o - - I mean, the driver's side was towards - - facing the South and they just had to walk to the - - to see the VIN number right there.
Q. They were standing in the driveway to do that?
A. Correct.
Q. And when they went into the driveway to view the VIN, at that point, Mr. Nolan had already been placed in handcuffs?
A. Yes, he was already under arrest?
Q. I'm sorry?
A. He was already under arrest.
Q. Okay. So he was under arrest before you - - before anyone looked at the VIN?
A. Correct.
Q. And when you went to look at the VIN, you didn't have a warrant for the property, correct?
A. No. sir.
Q. So you didn't have a warrant for - - to search the area of the home?
A. No.

The U. S. Supreme Court jurisprudence in this area of the law is clear. As Justice Scalia outlined in Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 1415-16, 185 L.Ed.2d 495 (2013) :

But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). This right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window.
We therefore regard the area "immediately surrounding and associated with the home" - what our cases call the curtilage - as "part of the home itself for Fourth Amendment purposes." Oliver [v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ]. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is "as old as the common law," Hester [v. United States , 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924) ], so too is the identity of home and what Blackstone called the "curtilage or homestall," for the "house protects and privileges all its branches and appurtenants." 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is "intimately linked to the home, both physically and psychologically," and is where "privacy expectations are most heightened." California v. Ciraolo , 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).
While the boundaries of the curtilage are generally "clearly marked," the "conception defining the curtilage" is at any rate familiar enough that it is "easily understood from our daily experience." Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and "to which the activity of home life extends." Ibid.

In a more recent case, Collins v. Virginia , --- U.S. ----, 138 S.Ct. 1663, 1670-1672, 201 L.Ed.2d 9 (2018) (emphasis added), the U.S. Supreme Court noted:

"At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " [ Jardines , 569 U.S. at 6, 133 S.Ct. 1409 ] (quoting Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). To give full practical effect to that right, the Court considers curtilage - "the area 'immediately surrounding and associated with the home' " - to be " 'part of the home itself for Fourth Amendment purposes.' " Jardines , 569 U.S. at 6, 133 S.Ct. 1409 (quoting Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). "The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." California v. Ciraolo , 476 U.S. 207, 212-213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).
When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines , 569 U.S. at 11, 133 S.Ct. 1409. Such conduct thus is presumptively unreasonable absent a warrant.
....
... Just like the front porch, side garden, or area "outside the front window," Jardines , 569 U.S. at 6, 133 S.Ct. 1409, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes "an area adjacent to the home and 'to which the activity of home life extends,' " and so is properly considered curtilage, id. , at 7, 133 S.Ct. 1409 (quoting Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735 ).
....
... Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.
Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person's separate and substantial Fourth Amendment interest in his home and curtilage.

While it would have been permissible to view the VIN number through the windshield had the defendant stopped on the street, and may even have been permissible had the officer in hot pursuit approached the defendant after failing to stop his vehicle while the defendant was still in his vehicle in his driveway, in this case the evidence is uncontroverted that the defendant got out of his vehicle and was ordered on the ground behind the vehicle. He was arrested, actually taken into custody and placed in the police unit. The officer's actions to thereafter intrude onto his property and walk to the front of his car located within the curtilage and view the VIN number became, in my view, an unconstitutional fourth amendment search clearly prohibited by Jardines and Collins .

As was stated in Mincey v. Arizona , 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2413-14, 57 L.Ed.2d 290 (1978) (internal citations omitted):

[A] warrantless search must be "strictly circumscribed by the exigencies which justify its initiation,"
....

In State v Parker , 355 So.2d 900, 906 (La.1978), our supreme court further noted:

In the present case, the warrantless seizure effected an intrusion upon defendant's interest in the privacy of his automobile which was not justified by any superior interests. At the time Officer Daigle entered the car, no exigent circumstances existed. The mere fact that an automobile is involved does not create exigent circumstances. Coolidge v. New Hampshire , [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ].
We hold that the defendant's rights under the Fourth Amendment and those afforded by Article 1, [§] 5 of the Louisiana Constitution of 1974 were violated by the warrantless seizure of evidence from his car. The ruling of the trial court on the motion to suppress is reversed, and the motion to suppress is sustained, and the case is remanded to the district court for further proceedings.

CONCLUSION

Since it is uncontradicted that defendant had already been arrested and handcuffed while on the ground outside his automobile and had already been taken into custody and placed in the police unit, any further intrusion onto the curtilage of his home would constitute an unconstitutional search and seizure under the cases cited. I would reverse and grant the motion to suppress the VIN evidence.