author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Kory MATTOX
    State of Louisiana v. Kory Mattox
    NO. 2018-K-0780 NO. 2018-K-0819
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 31, 2018
    Perry M. Nicosia, District Attorney, 34th Judicial District Court, Parish of St. Bernard, Michael G. Morales, Assistant District Attorney, 1101 West St. Bernard Highway, Chalmette, LA 70043, COUNSEL FOR STATE
    David W. Gernhauser, Jr., Dan A. Robin, Jr., Erich Puderer, Law Offices of Dan. A Robin, Jr., LLC, 9117 West St. Bernard Highway, Chalmette, LA 70043, COUNSEL FOR DEFENDANT
    (Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Joy Cossich Lobrano

We are presented with two writ applications arising out of the same case that were consolidated for consideration. We discuss each writ separately.

The facts are briefly as follows. Shortly after midnight on November 27, 2014, the victim in this case ("Victim") went to 2105 River Park Drive. The defendant, Kory Mattox ("Defendant") and Raquel Nicolosi were at the residence. Nicolosi answered the door. It is alleged that upon entering, Victim struck Nicolosi in the head with a collapsible police style baton. Defendant appeared from the rear of the residence and killed Victim with a single shot from a 12-gauge shotgun.

WRIT NO. 2018-K-0780

Defendant was indicted for one count of second degree murder but has claimed from the time of the shooting that the homicide was justified. Nicolosi testified during the grand jury proceedings. Defendant filed a motion to unseal the grand jury testimony. Nicolosi's testimony was unsealed and given to the defense by the State under the provisions of La. C.Cr.P. art. 434.1(B).

After reviewing the transcript in camera, the district court ordered that page 28, lines 22-25, page 29, lines 1-25, and page 30, lines 1-24 be unsealed and provided to Defendant. This portion of the transcript contains legal advice and remarks by the State to the grand jury before it began its deliberations. Defendant maintains that the State erroneously omitted from its instructions the law on justifiable homicide. As such, Defendant argues that this alleged misconduct by the State no longer protects the secrecy of grand jury proceedings.

The State filed the instant writ. It contends that grand jury proceedings are confidential as per the La. Const. Art. V § 34 (A) and as provided for in the La. C.Cr.P. arts. 431, et seq. For the reasons that follow, we grant the State's writ and reverse the judgment of the district court ordering the unsealing of page 28, lines 22-25, page 29, lines 1-25, and page 30, lines 1-24.

The Supreme Court, in State v. Francis , 18-1395 (La. 9/21/18), 252 So.3d 875 (per curiam), recently stated:

"[T]he indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity." State v. Trosclair , 443 So.2d 1098, 1103 (La.1983). The party seeking disclosure must demonstrate a particularized need that outweighs the need for continued secrecy. Trosclair , 443 So.2d at 1103. That is, "[h]e must show that, without the material, his case would be greatly prejudiced or that an injustice would be done." State v. Higgins , 03-1980, p. 36 (La. 4/1/05), 898 So.2d 1219, 1241 (citing Trosclair, 443 So.2d at 1103 ; State v. Ates , 418 So.2d 1326, 1328-29 (La. 1982) ).

In State v. Ross , 13-0175, pp. 6-7 (La. 3/25/14), 144 So.3d 932, 937, the Court stated the reasons for grand jury secrecy as follows:

Secrecy helps to prevent the escape of prospective indictees by providing no forewarning to them of the investigation in progress; it insures that the grand jury investigation can proceed freely by protecting the grand jurors from outside influences and threats of reprisal; it serves to prevent the subordination of perjury and tampering of witnesses by targets of the investigation; it promotes free and open disclosure of information by witnesses without fear of retaliation; and it acts as a shield by protecting innocent people under investigation from the injury to their reputations that could be caused by the disclosure of baseless accusations. However, the secrecy of grand jury proceedings is not absolute. This court has stated that in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings. In re Grand Jury , 98-2277 (La. 4/13/99), 737 So.2d 1, 5 ; State v. Trosclair , 443 So.2d 1098, 1102 (La.1983), cert. dismissed , 468 U.S. 1205, 104 S.Ct. 3593, 82 L.Ed.2d 889 (1984). (Footnotes omitted.)

The Court stated that the requirement of grand jury secrecy places a heavy burden on the party seeking disclosure of grand jury materials:

A party seeking disclosure has the burden of proving a "compelling necessity" for the material sought, and the need must be demonstrated "with particularity." That is, the party seeking disclosure must prove that, without access to the grand jury materials, the party's case would be "greatly prejudiced" or that an "injustice would be done." A general wholesale request for transcripts does not satisfy the requirement of demonstrative particularized need. In re Grand Jury , 737 So.2d at 8. This Court recognizes the strong public policy in favor of maintaining the secrecy of grand jury proceedings; however, there is also a strong policy in favor of openness in civil, as well as criminal, discovery, and grand jury transcripts often provide a storehouse of relevant facts. Id.
* * *
The disclosures expressly permitted by LSA-C.Cr.P. art. 434 include: (1) after the indictment, members of the grand jury and other persons present may reveal (to defense counsel, the attorney general, the district attorney, or the court), and testify concerning, "statutory irregularities" in grand jury proceedings; (2) a court may permit disclosure of testimony given before the grand jury to show that a witness committed perjury in his testimony before the grand jury; (3) a witness may discuss his testimony with the court, attorney general, district attorney, or counsel for the person under investigation or indicted; and (4) after notification to his district attorney, the foreman of a grand jury that discovers a crime may have been committed in another parish shall make that discovery known to the attorney general, and the district attorney or attorney general may direct any relevant evidence and testimony to the district attorney of another parish. See State v. Gutweiler , 2006-2596 (La. 4/8/08), 979 So.2d 469, 479 ; In re Grand Jury , 737 So.2d at 8 ; State v. Trosclair , 443 So.2d at 1102-03. See also State v. Poland , 2000-0453 (La. 3/16/01), 782 So.2d 556, 558-59.

Ross , 13-0175, pp. 7-10, 144 So.3d at 937-39 (footnotes omitted).

La. C.Cr.P. art. 434.1 provides the only exceptions to the requirement of grand jury secrecy as follows:

A. Notwithstanding the provisions of Article 434, the state may disclose to state or federal prosecutors or law enforcement officers, or to investigators on the staff of the district attorney or attorney general, or to expert witnesses, information and documents provided to a grand jury. Any person to whom such disclosure is made shall not engage in further disclosure of the material and shall use the disclosed material solely for purposes of investigation of criminal offenses and enforcement of criminal laws.
B. The district attorney shall also disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury.
C. The district attorney may also disclose to a witness at trial, including the defendant if the defendant testifies, any statement of the witness before the grand jury that is inconsistent with the testimony of that witness.

In this case, legal advice provided to the grand jury by the State is not one of the enumerated circumstances that allows a district court to order the production of grand jury transcripts. The district court did not specify what provision of La. C.Cr.P. arts 434 and/or 434.1 it relied on to order the release of the portions of the transcript. Defendant contends the information is necessary because the State erroneously instructed the grand jury and there is no need to keep the instructions secret. This is not a valid reason to disclose the grand jury instructions. We find that the district court abused its discretion in finding Defendant was entitled to the portions of the grand jury transcript requested.

Thus, we grant Writ No. 2018-K-0780, filed by the State, and reverse the order of the district court.

WRIT NO. 2018-K-0819

Defendant filed a motion to quash the indictment of second degree murder based on his defense of justifiable homicide in accordance with La. R.S. 14:20. He argues that the facts are undisputed so this not a defense of any facts, but a defense to the prosecution.

In denying the motion, the district court stated:

The Court has reviewed the pleadings filed in this case. In addition[,] the Court has reviewed article 532, the general grounds for a motion to quash. The Court has reviewed article 533, special grounds for motion to quash grand jury indictment. The Court also referred to State versus Rivers, [2005-1121 (La. App 4 Cir. 10/11/16), 942 So.2d 1176]. It's a Fourth Circuit Court of Appeals case decided on October 11 of 2006, wherein the Court stated "A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, example, pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the Court. In considering a motion to quash the Court must accept as true the facts contained in the bill of information and in the bill of particulars and determine as a matter of law and from the face of the pleadings whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits."
Based on that law and the application to this case the Court is denying the motion to quash the indictment based on 14:20(A)(3) as well as the motion to quash the indictment based on 14:20(A)(4)(A) as well as the presumption motion to quash, 14:20(B).

We find no error on the part of the district court and deny Writ No. 2018-K-819.

Finally, we note that Defendant filed a motion for oral argument in Writ No. 2018-K-780. This motion is denied as moot.

WRIT GRANTED; WRIT DENIED; MOTION FOR ORAL ARGUMENT DENIED AS MOOT

Ledet, J., Concurs in the Result


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Nathan and Sharon MITCHELL d/b/a Shapes Gym v. AARON'S, INC. and Wal-Mart Stores, Inc.
    NO. 2018 CA 0131
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 21, 2018 Rehearing Denied October 18, 2018
    Marvin Gros, Stacey B. Stephens, Martin K. Maley, Donaldsonville, Louisiana, Counsel for Plaintiffs/Appellants Nathan and Sharon Mitchell d/b/a Shapes Gym
    Thomas J. Eppling, Craig W. Brewer, Sara P. Scurlock, Metairie, Louisiana, Counsel for Defendant/Appellee Aaron's, Inc.
    Michael W. Rutledge, James G. Albertine, III, New Orleans, Louisiana, Counsel for Defendant/Appellee Wal-Mart Stores, Inc.
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

The owners and operators of a business appeal a judgment sustaining an objection of res judicata to dismiss their damage claims against neighboring businesses due to the flooding of their business property. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Nathan and Sharon Mitchell ("the Mitchells") own property and a business called Shapes Gym, located in Donaldsonville, Louisiana. On October 17, 2016, the Mitchells filed a petition for damages against Aaron's, Inc. and Wal-Mart Stores, Inc. (collectively "the defendants"), alleging that on various dates from October 25, 2015 to August 10, 2016, Shapes Gym was "inundated with rain water with about six inches of water in the building." The Mitchells alleged the flooding was caused by the defendants' faulty construction of buildings and subsurface drainage, failure to maintain drainage ditches, and violation of the natural servitude of drainage.

In response to the Mitchells' petition, the defendants filed separate peremptory exceptions raising the objection of res judicata, asserting that the Mitchells had filed a previous lawsuit in the same court alleging the same acts of negligence against the same defendants. As the dismissal of the prior lawsuit against the defendants by summary judgment was affirmed on appeal, the defendants urged the dismissal of the newly-filed petition under the doctrine of res judicata. Following a hearing on the exceptions, the trial court sustained the objection of res judicata and rendered judgment on September 12, 2017, dismissing the Mitchells' claims against the defendants with prejudice. This appeal followed.

ASSIGNMENTS OF ERROR

The Mitchells assign the following as error:

1. The Trial Court committed legal error by granting Defendant[s]-Appellees' Exception of Res Judicata.
2. The Trial Court committed legal error by failing to address Nathan and Sharon Mitchell[s'] damages caused by Appellees' blatant, gross and negligent actions in failing to prevent the flow of water on Shapes Gym and render the servitude less burdensome.

STANDARD OF LAW

The peremptory exception raising the objection of res judicata is based on the conclusive legal presumption that there should be no re-litigation of a thing previously adjudged between the same parties. Cepriano v. B Square Builders, L.L.C. , 2014-1568 (La. App. 1 Cir. 4/24/15), 170 So.3d 1043, 1047. The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. Id. When an objection of res judicata is raised before the case is submitted and evidence is received on the objection, the standard of review on appeal is traditionally manifest error with regard to factual findings of the trial court. Id. However, the res judicata effect of a prior judgment is a question of law that is reviewed de novo on appeal. Id. Because there is a prior judgment in this case, the proper standard of review is de novo.

DISCUSSION

Assignment of Error # 1

In their first assignment of error, the Mitchells argue that the trial court erred in granting the defendants' exceptions of res judicata. The doctrine of res judicata in Louisiana is established by statute, as set forth in La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Based on the language of La. R.S. 13:4231, the Louisiana Supreme Court has held the following five elements must be satisfied for a finding that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chevron U.S.A., Inc. v. State , 07-2469 (La. 9/8/08), 993 So.2d 187, 194. Since the amendment of La. R.S. 13:4231 in 1990, the "chief inquiry" for determining whether a finding of res judicata is appropriate is whether the two actions arise out of the same "transaction or occurrence." Chevron U.S.A., Inc. , 993 So.2d at 195.

The Mitchells dispute the trial court's finding as to the fifth element; namely, that the cause or causes of action asserted in the second suit arose out of a transaction or occurrence that was the subject matter of the first litigation. The Mitchells argue that as they allege new dates on which damages were sustained in the second suit, those new dates constitute new transactions or occurrences such as to preclude the application of res judicata to the second suit.

In the instant action, the Mitchells asserted that the defendants are liable based on the design and construction of their respective buildings and drainage systems, as well as their failure to properly maintain the drainage systems. It is this alleged negligence that the Mitchells claim, in part, caused the damages they sustained. The Mitchells identify new damages being sustained on several specified dates that occurred primarily after the dismissal of the prior action. In identifying those dates, the Mitchells expressly relate the damages incurred to the occurrence of a rain event.

In Rector v. Hartford Accident & Indemnity Company of Hartford, Connecticut , 120 So.2d 511, 519 (La. App. 1st Cir. 1960), this court recognized that a defendant cannot be held liable for injury that can be construed as being "an act of God"; that is, an injury "due directly and exclusively to natural causes without human intervention and could not have been prevented by the exercise of reasonable care and foresight." (Emphasis added.) This court recognized that "when an Act of God combines or concurs with the negligence of [a] defendant to produce an [i]njury, the defendant is liable if the injury would not have resulted but for his own negligent conduct of omission." Rector , 120 So.2d at 515.

The identified conduct of the defendants - the design and construction of the defendants' respective buildings and drainage systems and the defendant's failure to properly maintain their drainage ditches - is the same conduct identified in the prior action. The new damages sustained by the Mitchells therefore relate to the same conduct that the Mitchells identified in their first suit (i.e., the same "transaction or occurrence"). The Mitchells have not alleged any new or additional construction or changes in design by the defendants that would support a showing of a new transaction or occurrence for which the defendants could be held liable. Instead, the only new occurrences that the Mitchells allege are essentially allegations of new rain events or acts of God. As for the conduct attributable to the defendants, not only was it asserted in the prior lawsuit, the Mitchells also failed to prove that such conduct was negligent in that suit. Thus, we find no error in the trial court's determination that the prior judgments dismissing the Mitchells' claims based on this same conduct against the same defendants in the prior lawsuit, bars this second lawsuit regarding the same conduct.

Assignment of Error # 2

In their second assignment of error, the Mitchells contend that the trial court erred in not addressing whether they were entitled to damages from the defendants based on the defendants' alleged failure to fulfill their respective duties as the owner of a dominant estate. Louisiana Civil Code article 655, describing the natural servitude of drainage, states that "[a]n estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above unless an act of man has created the flow." Additionally, La. C.C. art. 656 states, in pertinent part, that "[t]he owner of the dominant estate situated above may not do anything to render the servitude more burdensome."

On July 24, 2017, the Mitchells filed a "First Supplemental and Amended Petition for Damages," wherein they added allegations regarding the defendants' alleged failure, as owners of a dominant estate, to properly construct buildings and subsurface systems, as well as their alleged failure to properly maintain drainage ditches, including a common ditch, such as "to render the servitude on the servient estate less burdensome." Other than expressly identifying the defendants as owners of a dominant estate, the allegations made by the Mitchells are essentially the same as those made in the first lawsuit; namely, claims alleging that the defendants had improperly constructed buildings and drainage systems on their property and/or failed to properly maintain their drainage systems.

The Mitchells have not alleged that the location of the parties' respective properties has changed in any material respect since the judgment rendered in the first lawsuit, so the defendants' status and duties as owners of a dominant estate must have existed at the time of the first lawsuit. Hence, the addition of allegations regarding the defendants' status as dominant estate owners, alone, is insufficient to defeat the objection of res judicata, as the objection equally applies to a "cause or causes of action" that existed at the time of final judgment in the first litigation. See Chevron U.S.A., Inc. , 993 So.2d at 194.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court's judgment sustaining the peremptory exception raising the objection of res judicata. Costs of this appeal are assigned to the appellants, Nathan and Sharon Mitchell.

AFFIRMED.

GUIDRY, J., dissents in part and assigns reasons.

The doctrine of res judicata is stricti juris, and any doubt concerning application of the principle must be resolved against its application. Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210, 1215. With this in mind, I find the Mitchells' allegations regarding the defendants' failure to properly maintain their drainage systems should survive the objection of res judicata. While the Mitchells' original and amended petitions in the instant action fail to identify any specific acts of improper maintenance, because maintenance, by its nature, is not a singular activity, but ongoing, I believe the Mitchells' claim of improper maintenance should survive the objection of res judicata. Thus, to the extent the Mitchells are able to show specific new acts of improper maintenance committed by the defendants that are not related to the design or construction of the defendants' respective maintenance systems, I believe this claim is not barred by the prior summary judgment rendered against them. Accordingly, I believe the trial court erred in sustaining the defendants' objections of res judicata relative to the Mitchells' improper maintenance claims, and for this reason, I respectfully dissent.

      In their brief on appeal, the Mitchells concede the first three elements.

      There is one date asserted that occurred prior to the signing of the judgment dismissing the Mitchells' prior suit, but after the date of the hearing from the which the judgment stemmed.

      In regard to the Mitchells' allegations of improper maintenance, we find that these allegations are the same as their allegations of negligent maintenance in the prior lawsuit.

      See La. C.C. arts. 646 and 654, identifying the natural servitude of drainage as a kind of predial servitude.

      Notably, such deficiency lends itself more to the dilatory objection of vagueness, or possibly the peremptory objection of no cause of action, in which case, the Mitchells would still be allowed the opportunity to amend their petition to remedy the deficiency rather than face the outright dismissal of their action. See La. C.C.P. arts. 933 -934.


author: PETTIGREW, J.

text:
    Joy WICKER v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company and Cathy Craddock
    NO. 2018 CA 0225
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered September 21, 2018
    CRAIG A. GENTRY, NEW ORLEANS, LA, ATTORNEY FOR PLAINTIFF-APPELLANT, JOY WICKER
    WILLIAM C. ROWE, JR., JOSEPH S. MANNING, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES, LOUISIANA FARM BUREAU AND CATHY CRADDOCK
    E'VINSKI L. DAVIS, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

In this appeal, plaintiff challenges the trial court's judgment sustaining a peremptory exception raising the objection of res judicata filed by defendants resulting in the dismissal of plaintiff's suit. For the reasons set forth below, we reverse the trial court's judgment and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of an accident that occurred in Baton Rouge on May 14, 2015, involving vehicles driven by plaintiff, Joy Wicker, and defendant, Cathy Craddock. Over the course of this dispute, two suits have been filed - one in the Baton Rouge City Court ("City Court"), and a second in the 19th Judicial District Court ("19th JDC"). As the issue before us is whether the 19th JDC suit is barred by the doctrine of res judicata, we begin by setting forth the procedural history of the two suits below.

On March 29, 2016, State Farm Mutual Automobile Insurance Company ("State Farm") filed suit in City Court against Mrs. Craddock and her liability insurer, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"), alleging it was subrogated to the rights of its insured, Mrs. Wicker, for the losses it allegedly sustained as a result of the accident, including Mrs. Wicker's property damage, rental car payments, and medical payments. Farm Bureau filed an answer and reconventional demand against State Farm and Mrs. Wicker. Farm Bureau later amended its claim to assert a third-party demand against Mrs. Wicker rather than a reconventional demand, alleging it was legally and conventionally subrogated to Mrs. Craddock's rights to collect the damages she sustained in the accident.

On April 29, 2016, Mrs. Wicker filed a separate suit in the 19th JDC against Farm Bureau and Mrs. Craddock (sometimes referred to hereinafter as "defendants"), seeking damages she sustained in connection with the accident. In response, Farm Bureau and Mrs. Craddock filed an exception raising the objection of lis pendens, arguing that the 19th JDC litigation involved the same parties and arose out of the same occurrence as the City Court action. Following a hearing, the trial court denied the lis pendens exception, signing a judgment accordingly on September 30, 2016. Farm Bureau and Mrs. Craddock filed a writ application in this court, seeking supervisory review of the 19th JDC's decision denying the lis pendens exception, which this court denied. Farm Bureau and Mrs. Craddock subsequently sought a writ of review with the Louisiana Supreme Court, which was also denied. Wicker v. Louisiana Farm Bureau Casualty Insurance Company, 2016-1451 (La. App. 1 Cir. 1/23/17), 2017 WL 283462 (unpublished writ action), writ denied, 2017-0360 (La. 4/13/17), 218 So.3d 120.

The City Court action proceeded to trial on June 19, 2017, at which time the court heard the arguments of counsel and reviewed the law and evidence, including the pleadings of record and stipulations entered by the parties. The court signed a judgment on June 29, 2017, in favor of State Farm and against Farm Bureau and Mrs. Craddock in the amount of $7,374.76, plus interest and costs. Farm Bureau's original reconventional demand and supplemental reconventional demand/third party demand were dismissed with prejudice.

Thereafter, with the 19th JDC suit still pending, defendants filed an exception raising the objection of res judicata. Defendants argued that the 19th JDC suit should be dismissed as res judicata based on the "written and final judgment involving all the same named parties to this action arising from a trial on the merits" in City Court and that "[a]ll causes existing at the time of the [C]ity [C]ourt judgment are extinguished." Following a hearing, the trial court granted the exception without providing reasons. Mrs. Wicker filed a motion for new trial, which was denied. This appeal by Mrs. Wicker followed, wherein she assigned error to the trial court's grant of defendants' res judicata exception.

DISCUSSION

Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La. 7/2/96), 676 So.2d 1077, 1079 ; La. R.S. 13:4231. It promotes judicial efficiency and final resolution of disputes. Terrebonne Fuel & Lube, Inc. v. Placid Refining, Co., 95-0654, 95-0671 (La. 1/16/96), 666 So.2d 624, 631. Louisiana Revised Statutes 13:4231 provides for res judicata as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The crucial inquiry is not whether the second suit is based on the same cause of action as the first suit, but whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that was the subject matter of the first suit. Leon v. Moore, 98-1792 (La. App. 1 Cir. 4/1/99), 731 So.2d 502, 504, writ denied, 99-1294 (La. 7/2/99), 747 So.2d 20. However, the Louisiana Supreme Court has also emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843 So.2d 1049, 1053.

The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Diamond B Const. Co., Inc. v. Department of Transp. and Dev., 2002-0573 (La. App. 1 Cir. 2/14/03), 845 So.2d 429, 435. The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 2004-0871 (La. App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception raising the objection of res judicata must be overruled and the second lawsuit maintained.

Denkmann Associates v. IP Timberlands Operating Co., Ltd., 96-2209 (La. App. 1 Cir. 2/20/98), 710 So.2d 1091, 1096, writ denied. 98-1398 (La. 7/2/98), 724 So.2d 738. The concept should be rejected when doubt exists as to whether a plaintiff's substantive rights actually have been previously addressed and finally resolved. Patin v. Patin, 2000-0969 (La. App. 1 Cir. 6/22/01), 808 So.2d 673, 676. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Pierrotti v. Johnson, 2011-1317 (La. App. 1 Cir. 3/19/12), 91 So.3d 1056, 1063-1064.

Mrs. Wicker argues on appeal that because the trial court, this court, and the Louisiana Supreme Court all agreed that the lis pendens exception was not applicable herein, the prior rulings by this court and the Louisiana Supreme Court concerning same are law of the case. She further contends that the third requirement of res judicata, that the parties are the same, fails in this case because "State Farm's interests in the City Court action were expressly limited to the extent that they were not directly aligned with [Mrs.] Wicker's separate claim for bodily injuries." Similarly, Mrs. Wicker asserts that the causes of action brought in these two suits are different and representative of Mrs. Wicker's and State Farm's distinct interests. Finally, Mrs. Wicker maintains that even if res judicata precluded the 19th JDC suit, exceptional circumstances warrant an exception to the general rule. See La. R.S. 13:4232(A)(1). Defendants argue that pursuant to La. Code Civ. P. art. 1061(B), Mrs. Wicker was required to assert all compulsory counterclaims in the City Court action, i.e., all causes of action arising from the accident in question.

As noted above, all five elements must be satisfied for res judicata to preclude a second suit. Based on our review of the record, we note that the first two elements of the res judicata statute, the existence of a valid and final judgment, are met. For purposes of res judicata, a valid judgment is one rendered by a court with jurisdiction over both the subject matter and the parties after proper notice has been given. A final judgment is one that disposes of the merits in whole or in part. The use of the phrase "final judgment" also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and bars any action filed later unless the judgment is reversed on appeal. La. R.S. 13:4231, Comments-1990, Comment (d); see also Burguieres, 843 So.2d at 1053.

The third of these elements is that the parties in each suit must be the same. More specifically, there must be an "identity of parties" before the doctrine of res judicata can be used to preclude a subsequent suit. See Burguieres, 843 So.2d at 1054. This requirement does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits. Id. An identity of parties exists whenever the same parties, their successors, or others appear, so long as they share the same quality as parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La. 1978) ; Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 2001-0993 (La. App. 1 Cir. 8/4/04), 880 So.2d 129, 140, writ denied, 2004-2426 (La. 1/28/05), 893 So.2d 72. Thus, the jurisprudence does not require that the parties in the two lawsuits be physically identical as long as they share the same quality as parties. Jensen Const. Co. v. Department of Transp. and Development, 542 So.2d 168, 171 (La. App. 1 Cir.), writ denied, 544 So.2d 408 (La. 1989).

In the matter before this court, the requirement that there be an "identity of parties" has not been satisfied. The petition filed by State Farm in City Court names Mrs. Craddock and Farm Bureau as defendants and alleges that due to the negligence of Mrs. Craddock in the automobile accident, Mrs. Wicker's vehicle was totaled and that she suffered injuries. State Farm further asserts that it made payments to Mrs. Wicker of $4,329.08 for property damage, $383.68 for rental car payments, and $2,162.00 in medical payments in connection with the accident. State Farm further contends that Mrs. Wicker suffered a loss in the form of a $500.00 deductible and assigned to State Farm the right to recover this amount.

The petition filed by Mrs. Wicker in the 19th JDC names Mrs. Craddock, Farm Bureau, and State Farm as defendants and alleges that Mrs. Craddock was at fault in the automobile accident. Mrs. Wicker asserts that she sustained past and future mental anguish and physical suffering, past and future loss of enjoyment of life, past and future expenses for medical care, and property damage. She contends that Farm Bureau issued an insurance policy to Mrs. Craddock in which it agreed to insure and indemnify Mrs. Craddock for the type of liability asserted. Mrs. Wicker further contends that State Farm issued a UM policy to her in which it agreed to provide uninsured/underinsured motorist coverage to her, that the evidence will reflect that the primary insurance coverage by State Farm is insufficient to satisfy the amount of damages asserted in her claim, and that her UM coverage claim is proper against State Farm as a proper party defendant.

The two suits appear to involve the same parties, but not in the same capacities. The suit filed in the 19th JDC involves State Farm as a defendant, while in the City Court action, State Farm was the plaintiff. Additionally, while Mrs. Wicker was the plaintiff in the 19th JDC suit, she was made a defendant-in-reconvention in the City Court action by Farm Bureau, and later a defendant in the "First Supplemental Reconventional Demand/Third Party Demand" filed by Farm Bureau, which contended Mrs. Wicker was indebted to Farm Bureau for amounts it paid to or on behalf of Mrs. Craddock. Therefore, there is no identity of parties in the two suits. We note further that there is nothing in the record to indicate that Mrs. Wicker's substantive rights with respect to the injuries she sustained in the accident were addressed or resolved in the City Court action. See Patin , 808 So.2d at 676. In fact, the only mention of Mrs. Wicker in the June 29, 2017 City Court judgment is the court's dismissal, with prejudice, of Farm Bureau's original reconventional demand and supplemental reconventional demand/third party demand against her. Accordingly, the doctrine of res judicata is inapplicable in this case.

CONCLUSION

For the above and foregoing reasons, the October 10, 2017 judgment of the trial court sustaining the exception raising the objection of res judicata and dismissing Mrs. Wicker's petition, with prejudice, is reversed. This matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to defendants, Cathy Craddock and Louisiana Farm Bureau Casualty Insurance Company.

REVERSED AND REMANDED.

      Pursuant to Article 1061(B), "The defendant in the principal action ... shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action." The 1990. Official Revision Comments to Article 1061 state: "Judicial efficiency is served by requiring the defendant through a compulsory reconventional demand to assert all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the basis for the plaintiff's action." Furthermore, Article 1061 comments explain that "if the defendant has a cause of action arising out of the subject matter of the plaintiff's action, then the defense of res judicata will prevent relitigation of issues common to both causes of action except as otherwise provided by law," and "[t]he requirement of a compulsory reconventional demand therefore also serves the interest of fairness by giving the defendant notice that he must assert his related cause of action." However, we note that only a named defendant in the principal demand may proceed by way of reconventional demand with the option of adding new "defendants in reconvention" under the appropriate circumstances. Baldwin v. Antin, 95-0714 (La. App. 1 Cir. 2/23/96), 673 So.2d 1049, 1051. In the instant matter, Mrs. Wicker was not a named defendant in the principal demand in City Court and, therefore, Article 1061(B) is inapplicable to the facts and circumstances before us now.

      In response to Mrs. Wicker's appeal, defendants do not make any specific arguments regarding the "identity of parties" issue. Nonetheless, below and in their prior writ application to this court, defendants relied on privity of contracts as support for the argument that Mrs. Wicker is the same party as her insurer, State Farm, for purposes of res judicata. We find no merit to this argument as it is clear that State Farm and Mrs. Wicker do not share the same interests in the two suits. See Sosebee v. Steadfast Ins. Co., 701 F.3d 1012, 1026 (5th Cir. 2012) ("Insurers may be in privity with the insured when the injured party sues ... under the Louisiana Direct Action Statute, but only where the policy limits are not exceeded and the interests of the insurer and the insured are aligned.").


author: STEPHENS, J.

text:
    Michael Thomas ACURIO, Plaintiff-Appellant v. Danielle Dickerson CAGE, a/k/a Danielle Dickerson Acurio, a/k/a Danielle Dickerson, Defendant-Appellee
    No. 52,309-CA
    Court of Appeal of Louisiana, Second Circuit.
    September 26, 2018
    STROUD, CARMOUCHE & BUCKLE, By: Nichole M. Buckle, TOMMY J. JOHNSON, Shreveport, Counsel for Appellant
    WIENER, WEISS & MADISON, By: Franklin H. Spuiell, Jr., Anna Wheeler O'Neal, Reid A. Jones, Shreveport, Counsel for Appellee
    Before BROWN, STONE, and STEPHENS, JJ.
   STEPHENS, J.

Dr. Michael Thomas Acurio appeals a judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, granting a judgment which sustained the peremptory exception of no cause of action in favor of his previous spouse, Danielle Dickerson Acurio Cage.

For the following reasons, we affirm the trial court's judgment.

FACTS

Michael and Danielle were married for the first time in June 1998. That marriage ended in divorce in February 2000. Their initial marriage was under the terms of a matrimonial agreement and established a separate property regime. In early 2002 the couple remarried; the parties purportedly entered into a prenuptial matrimonial agreement dated January 25, 2002, with the purpose of establishing a separate property regime between them (the "agreement"). It was signed in the presence of a notary and one witness. Their second marriage began four days after signing the agreement.

In June 2009, Danielle filed a petition for divorce. A judgment was rendered on October 6, 2010, in which it was stated a community of acquets and gains existed between the parties, terminating it retroactively to June 2, 2009. That judgment also reserved to the parties any rights they may have had involving the agreement. Subsequently, Danielle filed a motion seeking a declaration that the agreement was invalid, as it did not meet the form requirements under the Louisiana Civil Code. The trial court agreed that the agreement failed for failure to adhere to form requirements, and Michael appealed that judgment to this court. This court reversed the trial court and upheld the validity of the agreement. However, that opinion was reversed in Acurio v. Acurio , 2016-1395 (La. 5/3/2017), 224 So.3d 935 (" Acurio I "), where the Supreme Court of Louisiana found that the failure to meet all form requirements prior to the marriage rendered the agreement invalid. Specifically, the Acurio I court recognized that, "it is clear the legislature intended to make it onerous to waive one's community property rights, at least to the extent that certain procedural hurdles were put in place to ensure the parties consider the consequences of entering into a matrimonial agreement that is not favored by public policy." Id. at 938. Further, the Acurio I court stated, "we find the very fact that 'an act under private signature duly acknowledged' is presented as the sole alternative to an 'authentic act' is a telling recognition that both methods of execution are meant to be sufficiently arduous so as to provoke thought and consideration before entering into the agreement." Id. at 939-40. In invalidating the agreement, the supreme court concluded, "we find in order to have legal validity, a matrimonial agreement executed prior to marriage must be made by authentic act or signed and duly acknowledged prior to marriage." Id. at 940.

After the supreme court's invalidation of the agreement, Michael filed a petition for damages against Danielle in the trial court, alleging breach of contract, detrimental reliance, natural obligations, the clean hands doctrine, and equitable estoppel. He claimed that several days before their second marriage, the couple entered into an oral contract where Danielle agreed she would prepare and present a prenuptial matrimonial agreement reflecting the parties' intent to provide for a separate property regime governing all the rights between them during their marriage. According to Michael, Danielle knew he would not have married her again without the benefit of a matrimonial agreement separating their property. He asserted in his petition that this was a valid oral contract to make a subsequent valid prenuptial matrimonial agreement. He claimed she purported to do so and partially fulfilled her obligations, but ultimately breached their oral contract in two ways: (1) she failed to provide a notarial act, and/or (2) she failed to have the signatures of the parties to the agreement acknowledged prior to their marriage. Michael further asserted that Danielle represented to him that the agreement was valid, and he relied upon her representation to his detriment. Michael sought a trial by jury for his lawsuit.

Danielle responded with a peremptory exception of no cause of action and a motion for fees and costs. She argued that not only did Michael not state a cause of action in his petition, but the petition is frivolous, entitling her to costs and fees against him. A hearing on the exception was conducted. After argument by counsel, the trial court ruled and granted the exception of no cause of action on all theories of law; however, the trial court denied the request for sanctions. This appeal by Michael ensued.

DISCUSSION

Peremptory Exception of No Cause of Action

Provided by La. C.C.P. art. 927(A)(5), the peremptory exception of no cause of action tests the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP , 2006-1774 (La. 2/22/07), 950 So.2d 641 ; Gipson v. Fortune , 45,021 (La. App. 2d Cir. 1/27/10), 30 So.3d 1076, writ denied , 2010-0432 (La. 4/30/10), 34 So.3d 298. A "cause of action," when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. White v. St. Elizabeth B.C. Bd. of Directors , 45,213 (La. App. 2d Cir. 6/2/10), 37 So.3d 1139. The purpose of the exception of no cause of action is not to determine whether the plaintiff will prevail at trial, but is to ascertain if a cause of action exists. Bogues v. Louisiana Energy Consultants, Inc. , 46,434 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128. The exception is triable on the face of the petition, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant , 2001-0987 (La. 11/28/01), 801 So.2d 346.

The burden of demonstrating that the petition states no cause of action is upon the mover. Wright v. Louisiana Power & Light , 2006-1181 (La. 3/9/07), 951 So.2d 1058 ; Scheffler, supra.

An appellate court's review of a trial court's ruling sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink, supra. The essential question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, the petition states any valid cause of action for relief. Wright, supra.

On appeal, Michael raises five assignments of error, three of which are based on what he states are the "well pled factual allegations" of his petition. The petition sets forth the following claims, which, in his appeal brief, Michael argues the trial court should have accepted as true. A summary of the pertinent allegations are:

• Several days before the couple's January 29, 2002, marriage, Michael and Danielle entered into an "oral contract" where Danielle agreed to provide a valid prenuptial matrimonial agreement so that the parties' marriage would be subject to a separate property regime;
• Danielle, who had been married to Michael before in a marriage subject to a valid prenuptial matrimonial agreement, understood the importance of such an agreement to Michael. He claims she knew he would not remarry her without such an agreement;
• The couple's oral contract charged Danielle with responsibility of presenting a valid and enforceable matrimonial agreement;
• Pursuant to the oral contract, Danielle assumed the responsibility of creating the agreement, which may have included provisions benefiting her, as long as they pertained to Michael's "fundamental goal" to establish a separate property regime;
• Danielle prepared the agreement subject to the oral contract, which notably included a provision that the couple specifically would maintain separate checking, savings, and retirement accounts, not subject to the community property regime;
• Danielle partially fulfilled her obligation under the oral contract in that she drafted the agreement and provided a notary public for the execution of the agreement, but she failed to provide a valid and enforceable matrimonial agreement since "she (1) failed to provide a notarial act, and (2) failed to have the signatures of the parties to the prenuptial agreement acknowledged prior to the marriage";
• Danielle represented to Michael that the agreement was valid, but she misrepresented the truth. As a result, Michael married Danielle without a valid agreement;
• Because Danielle failed to present a valid agreement, she breached the oral contract entered into by her and Michael, subjecting him to significant monetary losses;
• Danielle knew Michael would go forward with the marriage if she represented to him that the agreement was valid, but that he would not marry her without a valid agreement;
• Danielle represented that the agreement was valid, and the couple lived in accordance with the agreement during their marriage-they had separate bank and retirement accounts, separate income streams, and separate credit cards. Their matrimonial domicile was purchased by Michael with "separate" funds and in his name only;
• Michael trusted Danielle's representations that the agreement was valid, which trust was reasonable because he loved Danielle;
• Michael relied to his detriment on Danielle's representations that the agreement was valid and enforceable;
• His reliance on Danielle's representations was justified as evidenced by the fact that the couple lived by the terms of the agreement; and,
• Danielle acted as if the couple's marriage was under the separate property regime, which lulled Michael into a false sense of security regarding his matrimonial property rights. Had he known the agreement was invalid, he would have taken legal steps to protect his property; thus, Danielle is estopped from denying the validity and enforceability of the agreement since her conduct prevented him from effectively protecting his rights.

Initially, we note the assignment of error by Michael that applies to the trial court's judgment in general, which is not separately articulated in brief but generally argued. Michael maintains the trial court used the inappropriate legal standard in examining the sufficiency of his petition, as it should have simply accepted his alleged facts as true and not considered any principles of law regarding matrimonial agreements. We observe the purpose of the exception of no cause of action: it is a procedural device which "test[s] the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged." Scheffler, supra at 646 (emphasis added). Thus, the alleged facts are not examined for their truthfulness in a vacuum, but must be examined in the context of the applicable legal theory of the case.

Here, an analysis of Michael's petition and its alleged facts hinges on whether the antecedent oral contract is valid and/or whether Michael suffered detrimental reliance. Such a determination inherently requires analysis of the validity of the subsequent contract-the agreement between him and Danielle. It is implicit in the examination of whether a cause of action exists that the legal principles applicable to the agreement, i.e. , a prenuptial matrimonial agreement, must be considered. The courts of this state require only that a pleading set forth the facts upon which relief may be granted. See La. C.C.P. art. 891 ; First S. Prod. Credit Ass'n v. Georgia-Pac. , 585 So.2d 545, 548 (La. 1991). Recovery may be granted to a party under any legal theory justified by the facts pled. See La. C.C.P. art. 862. Therefore, in order to reach a conclusion, the trial court was tasked with examining not only the allegations contained in the petition. Also, in order to determine whether those facts alleged in the petition support a cause of action, the trial court additionally and properly considered the legal principles regarding the issues at hand: in general and specifically, the legality of the ultimate agreement and its connection to oral contracts and detrimental reliance. Michael's assignment of error on this issue is without merit.

Validity of Oral Contract

In his first assignment of error, Michael argues that the trial court erred by not accepting as true the "well pled factual allegations" in his petition which set forth a claim for breach of an oral contract. Related to that is an additional assignment of error where he argues the trial court erred by applying the legal principles for prenuptial matrimonial agreements to his claim of a breach of an oral argument. Michael contends that Danielle made an oral promise to him to prepare and provide a valid and enforceable prenuptial matrimonial agreement, which, by virtue of the ultimate opinion in Acurio I , she failed to do. Thus, he maintains, she breached an oral agreement to present a valid and enforceable agreement, and he asserted a legal cause of action in that vein. We disagree.

The ultimate issue on appeal is whether such an oral agreement is enforceable and whether Michael asserted facts to support that claim. This raises the question: may someone be bound by an oral agreement to prepare and present a valid prenuptial matrimonial agreement, which is a contract with strict form requirements? Consideration of the legal principles regarding matrimonial agreements is integral to an analysis of the question at hand. Without such consideration, one Michael contends was in error, the pertinent question of whether a cause of action has been asserted cannot be answered. Thus, it is incumbent to consider the form requirements of matrimonial agreements.

Louisiana C.C. art. 2331 provides:

A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

Clearly, in order for a matrimonial agreement to be valid, the prescribed form must be adhered to, and failure to do so results in an invalid contract. As already stated, this particular agreement was examined in Acurio I and determined to be invalid for failure to adhere to the form requirement of the Louisiana Civil Code. Acurio I , at 940.

Likewise, a contract seeking to bind someone to enter into a prenuptial matrimonial agreement must be in the precise form as that subsequent agreement. In fact, as stated by Professor Ronald J. Scalise Jr. :

The Louisiana Civil Code provides that when the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.
....
When a writing is required for the validity of a contract, other acts related to that validity also require a writing. Thus, a mandate to buy or to sell immovable property must be in writing because the sale of immovable property requires a writing. Even a contract made in preparation of, or looking forward to, another contract that requires a writing must be made in writing also. Thus, a promise to sell, or an option to buy, immovable property must be made or granted in writing since the final sale of immovable property requires a writing.

§ 12.12. Written form required by law, 5 La. Civ. L. Treatise, Law of Obligations § 12.12 (2d ed.) (emphasis added). Here, the oral agreement, as specifically alleged by Michael, was a contract looking forward to another contract, a prenuptial matrimonial agreement. That subsequent contract, the agreement between Michael and Danielle, was subject to strict form requirements-form requirements which the oral promise came nowhere near adhering to. Such an antecedent oral contract purporting to bind the parties to a subsequent matrimonial agreement is unenforceable.

Consider Crosby v. Stinson , 33,628 (La. App. 2 Cir. 8/23/00), 766 So.2d 615 ; although a matrimonial agreement was not at issue, the facts in Crosby are directly analogous to those at hand. There, the Crosbys alleged having had a verbal agreement with Stinson that he would donate certain property to them reserving a right of access to Stinson. The donation was executed by the parties; however, it was not in authentic form-the requisite form for donations of immovable property pursuant to La. C.C. art. 1536. Later, Stinson withdrew his consent to the donation, and the Crosbys filed suit against Stinson seeking specific performance of the verbal agreement and damages arising from the preparation of the donation documents, among other relief. Stinson filed an exception of no cause of action, which was granted by the trial court. In affirming the trial court, this court explained:

We conclude that the same formal requirements must necessarily apply to a contract to donate immovable property. Enforcement of a verbal agreement to donate immovable property would negate the formal requirements of La. C.C. art. 1536. Giving effect to a purported verbal agreement to donate immovable property would also bypass the "cautionary function" of the formal requirement for donations. Enforcing a verbal agreement to donate could lead to a particularly egregious result because, unlike a contract to sell, the transferor/donor will receive no recompense for the divestiture of his property. Such an action would further lead to problems of proof of the obligation.

Id. at 619 (citation omitted).

To enforce an oral contract to enter into a prenuptial matrimonial agreement that is otherwise invalid due to failure of form would lead to an egregious result. The legal regime is the default regime and is favored by the legislature. In re Succession of Faget , 2010-0188 (La. 11/30/10), 53 So.3d 414, 421. Accordingly, such agreements to alter the legal regime are subject to strict form requirements articulated in La. C.C. art. 2331. To allow "backdoor" enforcement of an otherwise invalid and illegal matrimonial agreement by recognizing the breach of an oral agreement would circumvent the strict legal requirements of form for matrimonial agreements and the favor of the legal regime. Therefore, we hold that the trial court's judgment on this issue was not in error. Michael has no cause of action to enforce an oral contract to enter into a prenuptial matrimonial agreement, which agreement has been specifically deemed invalid, notably for failure of form, by the Louisiana Supreme Court in Acurio I . This assignment of error has no merit.

Detrimental Reliance

In Michael's second assignment of error, he argues the trial court erred in failing to accept as true his claim regarding detrimental reliance. It is his position that the trial court erroneously considered his subjective reasonableness in relying on a contract that was later determined to be invalid.

We recognize Michael's assignment of error that the trial court erred in applying principles applicable to matrimonial agreements when considering the issue of detrimental reliance. For the reasons articulated above regarding the oral contract, it is also necessary to consider the principles applicable to matrimonial agreements in order to fully consider whether there was detrimental reliance by Michael. Thus, even though Michael specifically pleads detrimental reliance as his theory of recovery, the trial court was not in error in analyzing the facts pled under other legal theories, i.e. , matrimonial agreements, to determine if he is entitled to recovery.

The theory of detrimental reliance, also referred to in the jurisprudence as promissory or equitable estoppel, is contained in La. C.C. art. 1967, which provides in pertinent part:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Luther v. IOM Co. LLC , 2013-0353 (La. 10/15/13), 130 So.3d 817 ; Hansen v. River Cities Disposal Co., Inc. , 51,700 (La. App. 2 Cir. 11/15/17), 245 So.3d 213. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance. Luther, supra ; Suire v. Lafayette City-Parish Consol. Government , 2004-1459 (La. 4/12/05), 907 So.2d 37, 59. However, it is difficult to recover under the theory of detrimental reliance, because estoppel is not favored in Louisiana law. Louisiana Office of Risk Mgmt. v. Richard , 2013-0890 (La. 10/15/13), 125 So.3d 398, 402.

Michael alleged that Danielle orally promised to provide a valid and enforceable matrimonial agreement with the goal of inducing him to marry her, and he claimed that her oral promise to produce a valid agreement induced him to marry her, to his detriment. The trial court considered Michael's allegations and concluded that his reliance on Danielle's promise was unreasonable, which Michael claims was in error and should not have been considered in an exception of no cause of action. However, we conclude Michael's petition does not assert facts sufficient to support a cause of action for detrimental reliance, which is readily observed by those allegations contained therein.

First, equitable considerations and detrimental reliance cannot be permitted to prevail when in conflict with the positive written law. Luther, supra at 826 ; Morris v. Friedman , 1994-2808 (La. 11/27/95), 663 So.2d 19, 25. Michael cannot prevail on his claim of detrimental reliance, when that reliance was on an unenforceable oral contract pertaining to a subsequent contract which was invalid. Consider John W. Stone Oil Distrib., L.L.C. v. River Oaks Contractors & Developers, Inc., 07-1001 (La. App. 5 Cir. 5/27/08), 986 So.2d 103, 105, writ denied , 2008-1397 (La. 9/26/08), 992 So.2d 992. There, the plaintiff ("Stone") sued defendants ("River Oaks") to enforce an oral agreement. Stone argued in that oral agreement River Oaks agreed it would sell immovable property to Stone. When River Oaks ultimately refused to sell the property to Stone, he sued, alleging detrimental reliance on River Oaks' oral agreement to sell. The court recognized that at issue was an "alleged promise ... to sell immovable property." Id. at 108. Quoting Morris, supra , the court observed: "Equity will not lie where a positive legal requirement, not adhered to, exists." John W. Stone Oil Distrib., L.L.C. , supra at 108. Stone's claim was dismissed. Likewise, Michael cannot rely to his detriment on an illegal promise between the parties. As discussed herein, an oral promise to enter into a prenuptial matrimonial agreement, which is required to be in writing, is itself invalid. For this reason, on the face of his petition, he fails to allege sufficient facts to prove his claim of detrimental reliance.

Second, a party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim detrimental reliance. Luther, supra at 826. The facts alleged do not indicate that Michael could not avail himself of the truth as to the validity of the agreement, notwithstanding his "love" for Danielle. Surely, considering the couple's history, Michael, obviously a highly educated and sophisticated individual, understood the need and advisability of having an attorney prepare a legal document he himself deemed of utmost importance and obviously to his financial self-interest. Michael claims the parties were subject to a matrimonial agreement in their first marriage, and in fact, at oral argument, Michael's appeal counsel stated he had prepared the first matrimonial agreement. Michael cannot avail himself of the claim of detrimental reliance when he failed to take similar steps a second time to protect his self-interest, and he makes no claims to show how he was so prevented from ascertaining the truth. Furthermore, there were no claims that Danielle impeded him from verifying the truth. See John W. Stone Oil Distrib., L.L.C., supra at 109 ("we find that it is not reasonable for a sophisticated businessman ... to rely on an oral contract to sell immovable property [.]").

Third and finally, there are no allegations that claim or even suggest that Danielle was any sort of legal expert: she was not an attorney, notary public, or paralegal. There is nothing in his petition to show she had any expertise in matrimonial agreements, other than the fact that she had been subject to one in their previous marriage-as had Michael. Therefore, it was inherently unreasonable for Michael to rely on Danielle to prepare and provide a valid and enforceable legal document, considering there were no facts showing she had the expertise, credentials, and/or education or training to do so. To rely on a person without any expertise in the subject matter and whose own self-interest was adverse to his was per se unjustifiable and unreasonable.

On this issue of Michael's detrimental reliance, the trial court did not err in concluding he failed to state a cause of action. Even accepting his allegations as true, Michael's claims do not state facts upon which relief can be legally granted. This assignment of error is without merit.

Claims of Natural Obligation, Unclean Hands, and Equitable Estoppel

Michael effectively failed to brief his fifth assignment of error regarding his claims alleging the legal principles of natural obligation, unclean hands, and equitable estoppel; therefore, that assignment of error is abandoned. See, U.R.C.A. Rule 2-12.4, where an appellant fails to brief an assignment of error, the appeal court may deem that assignment abandoned. Lawson v. Lawson , 48,296 (La. App. 2 Cir. 7/24/13), 121 So.3d 769, 775.

CONCLUSION

For the reasons contained here, we affirm the judgment in favor of Danielle Dickerson Acurio Cage, which judgment granted her peremptory exception of no cause of action and dismissed all of the claims with prejudice of Michael Acurio. All costs of his appeal are assessed to Michael.

AFFIRMED.

      Michael is a local orthopedic surgeon, and between their two marriages, the couple have three children.

      Acurio v. Acurio , 50,709 (La. App. 2 Cir. 6/22/16), 197 So.3d 253.

      Also pending in the trial court is the separate but related matter regarding the couple's community property. In that proceeding, Danielle filed a motion to consolidate the matters and also filed her peremptory exception, which were denied. There was a hearing in that matter on her motion, and Michael, in the instant appeal, attempted to have this record supplemented with the transcript from that hearing. However, this court denied the motion, recognizing that it was from another matter in the trial court. That order is contained in this appeal record.

      As of the date of the hearing, Danielle had incurred about $7,000.00 in defending against Michael's claims, and her attorney was prepared to present unredacted bills for inspection by the trial court.

      Danielle does not answer the appeal regarding the denial of her request for sanctions.

      A.D. Freeman Professor of Civil Law, Tulane University Law School.


author: Judge Edwin A. Lombard

text:
    Lorae BURNETT v. FULL FORCE STAFFING, LLC, & Luba Casualty Insurance Company
    NO. 2018-CA-0354
    Court of Appeal of Louisiana, First Circuit.
    October 10, 2018
    Robert L. Manard, ROBERT L. MANARD, PLC, 1100 Poydras Street, Suite 2610, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLEE
    Stephen W. Brooks, Jr., Richard J. Voelker, PUGH ACCARDO, L.L.C., 112 Innwood Drive, Suite B, Covington, LA 70433, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Edwin A. Lombard

The Appellants, defendants Full Force Staffing, LLC ("Full Force") and its insurer, LUBA Casualty Insurance Company ("LUBA"), seek review of the December 8, 2017 judgment of the Office of Workers' Compensation ("OWC") upholding a Medical Guidelines Dispute Decision, which granted a request for right shoulder surgery for the Appellee, plaintiff Lorae Burnett ("Mr. Burnett"). Finding that the decision of the OWC is not manifestly erroneous, we affirm.

Facts and Procedural History

Mr. Burnett was involved in a motor vehicle accident in New Orleans on the afternoon of August 27, 2016. He was riding as a passenger in a garbage truck owned by Metro Disposal, Inc., when it collided with another motor vehicle. Mr. Burnett asserts that he sustained various injuries in the accident, including to his right shoulder and back. At the time of the accident, he was employed by Full Force and, allegedly, by Metro Disposal, Inc. Following the accident, Mr. Burnett received medical treatment from three medical providers: Dr. John Craig Cornett; Dr. John Logan and Dr. Felix Savoie.

Dr. Cornett treated Mr. Burnett from September 2016 through January 2017. His medical records reflect that Mr. Burnett was experiencing right shoulder pain immediately after the accident. Mr. Burnett was undergoing modality therapy with moist heat, as well as performing stretching exercises for the duration of his treatment with Dr. Cornett. Additionally, Dr. Cornett's notes reflect that Mr. Burnett's symptoms were causally related to the August 2016 accident, with a reasonable degree of medical certainty, and that Mr. Burnett complained of chronic right shoulder pain. Dr. Cornett later referred Mr. Burnett to Dr. Logan, an orthopedic surgeon, who ordered an MRI.

Dr. Bernard Landry, a radiologist, reviewed the MRI of Mr. Burnett's right shoulder joint. Dr. Landry determined that Mr. Burnett had "an os acromiale and degenerative subcortical pseudocyst formation of the AC joint." He further determined that there was "signal alteration of the superior labrum and posteroinferior labrum worrisome for tear" and recommended Mr. Burnett see an orthopedist.

Thereafter, Dr. Logan referred Mr. Burnett to an orthopedic shoulder specialist, Dr. Savoie. Dr. Savoie's note of January 16, 2017, regarding his examination of Mr. Burnett, states:

...it seems the accident caused the front of the Os to punch into the rotator cuff; options for this young patient would be to fix the os with cannulated screws; I would think the need for surgery would be related to the accident he described: ...arthroscopy right shoulder with ORIF os acromionale with accutrak cannulated screws; will be in sling for 2-6 weeks- I really need to see the MRI to know for sure.

The Appellants maintain that Mr. Burnett filed a LWC WC Form 1008, asserting a claim for Workers' Compensation benefits in July 2017, Docket No. 17-04056. Nevertheless, this form is not a part of the record.

In August 2017, a LWC WC Form 1010 was submitted by Dr. Savoie, on Mr. Burnett's behalf, to LUBA requesting authorization for right shoulder arthroscopy with open fixation of Os Acromiale. LUBA denied the request, stating the reason as being that LUBA does not "retro precert." LUBA avers it provided this explanation because there was no indication that Dr. Savoie was Mr. Burnett's choice of physician and because there was no request for approval of evaluation or treatment of Mr. Burnett by Dr. Savoie prior to the request for surgery being made.

Thereafter, in early October 2017, Mr. Burnett filed a Disputed Claim for Medical Treatment, a LWC WC Form 1009, with the OWC Medical Director. Mr. Burnett sought review of the denial of the LWC WC Form 1010 in his Disputed Claim for Medical Treatment. He listed the issue in dispute as being Dr. Savoie's determination and recommendation that he needed right shoulder surgery. He further explained that there was "no countervailing evidence to the contrary." Lastly, he stated that LUBA denied payment for the surgery and treatment claiming that it does not "retro precert" despite the fact that the surgery had not been performed when the LWC WC Form 1010 was filed. Records from all of his treating physicians were attached to the Form 1009. The Appellants filed an opposition to the LWC WC Form 1009.

On October 18, 2017, the Medical Guidelines Dispute Decision ("MGDD") was issued by the Medical Director, specifically by Dr. Jason Picard, the Associate Medical Director of the Office of Workers' Compensation Administration Medical Services. In the MGDD, Dr. Picard opined that the requested procedure was in accordance with the OWC Medical Treatment Guidelines and covered by the medical treatment schedule upon his review of the medical records. He determined that the documentation supported "the approval of the requested services in review for compliance with the Medical Treatment Schedule." He further noted that Mr. Burnett "has a tear and failure of conservative therapy as per the guidelines."

The Appellants subsequently filed a Disputed Claim for Compensation, LWC WC Form 1008, in the OWC, seeking a reversal of the MGDD. In the LWC WC Form 1008, the Appellants described the bona-fide dispute as being an appeal of the:

... OWC Medical Dispute Decision MGD 17-2695 in favor of claimant Lorae Burnett, finding that the request for "Right shoulder arthroscopy with open fixation O's acromiate [sic]" complies with the Medical Treatment Guidelines. Appllant [sic] asserts that the Medical dispute decision, is not in compliance with the Medical Treatment Guidelines, and seeks reversal of the OWC Medical Director's decision, dated October 18, 2017.

Following a hearing in November 2017, the OWC rendered judgment upholding the MGDD and dismissing the appeal of the Appellants.

Discussion

This timely appeal followed. The sole assignment of error raised by the Appellants is that the OWC committed reversible error in finding that the Medical Director correctly determined that the "right shoulder arthroscopy with open fixation Os Acromiale," requested by Dr. Savoie was in accordance with the Medical Treatment Guidelines.

The First Circuit explained the origins of the Medical Treatment Guidelines as follows:

In 2009, the legislature enacted La. R.S. 23:1203.1, which charged the Director of the Office of Workers' Compensation to establish a medical treatment schedule. See La. R.S. 23:1203.1(B). The Medical Treatment Guidelines became effective July 13, 2011, and are promulgated in the Louisiana Administrative Code, Title 40 Part 1, Subpart 2, Medical Guidelines. The statute is the product of a combined endeavor by employers, insurers, labor, and medical providers to establish meaningful guidelines for the treatment of injured workers. Church Mutual Insurance Company v. Dardar , 13-2351 (La. 5/7/14), 145 So.3d 271, 275. The statute expresses the legislature's intent that, with the establishment and enforcement thereof, all medical treatment shall be delivered in an efficient and timely manner to injured employees. La. R.S. 23:1203.1(L) ; Church , 145 So.3d at 276.

Thompson v. DHH-Office of Pub. Health , 15-1032, p. 4 (La. App. 1 Cir. 2/26/16), 191 So.3d 593, 595.

Furthermore, appellate courts apply the manifest error standard when examining a workers' compensation judge's ("WCJ's") review of a decision of the Medical Director. This is because the WCJ's review of whether there is clear and convincing evidence that the Medical Director's determination is in contravention of the medical treatment guidelines is necessarily fact-intensive. Guidry v. Am. Legion Hosp. , 14-1285, p. 4 (La. App. 3 Cir. 4/1/15), 162 So.3d 728, 730 (citing Mouton v. Lafayette Parish Sheriff's Office , 13-1411, pp. 2-3 (La. App. 3 Cir. 5/7/14), 158 So.3d 833, 835 ). Accordingly, appellate courts will not overturn the findings of the WCJ unless there is no reasonable basis to support the decision. Id. ; Poissenot v. St. Bernard Parish Sheriff's Office , 09-2793, p. 6 (La. 1/9/11), 56 So.3d 170, 174.

The Appellants assert that the WCJ committed reversible error in upholding the decision of the Medical Director considering that the WCJ was presented with clear and convincing evidence establishing that the Medical Director erred in finding that the requested surgery was in accordance with the Medical Treatment Guidelines. The Appellants further contend that the Medical Director erred in making unsupported medical findings, such as that Mr. Burnett has a tear and that there was a failure of conservative therapy. Mr. Burnett, they argue, did not undergo conservative therapy on his right shoulder prior to the request for surgery. They aver that the medical records of Dr. Savoie do not indicate that Mr. Burnett has a tear, nor that he underwent conservative therapy.

Moreover, the Appellants assert that the requested surgery is not to repair a tear, rather to place cannulated screws. The Appellants maintain that Os acromiale or surgery to address the same, is not listed in the Medical Treatment Guidelines.

In response, Mr. Burnett asserts that there was a lack of clear and convincing evidence provided by the Appellants to overturn the decision of the Medical Director because the Appellants did not provide any countervailing medical evidence to dispute Dr. Savoie's recommendation for shoulder surgery. Dr. Savoie's assessments reflect that Mr. Burnett was diagnosed as having: acute right shoulder pain; Os acromiale of right shoulder as well as a rotator cuff impingement syndrome of right shoulder. Furthermore, Mr. Burnett relies upon the conclusions reached by Dr. Landry, who noted that Mr. Burnett had a "signal alteration of the superior labrum and posteroinferior labrum worrisome for tear." He further notes that he received conservative therapy for his shoulder while treating with Dr. Cornett. Mr. Burnett maintains that his medical records belie the Appellants' assertion that he did not receive the contested conservative therapy and that his condition does not require surgery. We agree.

"An employer's obligation to furnish medical treatment to an injured employee is governed by La. R.S. 23:1201 et seq. La. R.S. 23:1203.1(K) establishes that the decision of the OWCA Medical Director 'may be overturned when it is shown, by clear and convincing evidence, the decision ... was not in accordance with the provisions of this Section.' " Wilson v. Broadmoor, LLC , 14-694, p. 5 (La. App. 5 Cir. 3/11/15), 169 So.3d 463, 466.

Proof by 'clear and convincing' evidence requires more than the traditional measure of persuasion, the 'preponderance of the evidence' standard, but less than 'beyond a reasonable doubt', the stringent criminal standard. Succession of Dowling , 633 So.2d 846, 855 (La. App. 4th Cir. 1994) (citing Succession of Bartie, 472 So.2d 578 (La.1985) ; Succession of Lyons , 452 So.2d 1161 (La. 1984) ). To prove a matter by "clear and convincing" evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Id. (citing Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976) ).

The WCJ explained at the November hearing that it was going to uphold the decision of the Medical Director, Dr. Picard:

This Court is not going to reverse Dr. Picard. Dr. Picard actually reviewed the records. He came up with the opinion that the right shoulder surgery to the Os acromiale is necessary, and it's medically necessary and appropriate according to the guidelines. He read the guidelines as you and I would have read the guidelines, and apparently -- he came up with the fact that this is necessary. So the Court's not going to overturn the Medical Director's decision based on that.

Based upon our review of the record, Mr. Burnett's medical records reflect that conservative therapy, i.e., modality therapy, was not alleviating his pain and, thus, was ineffective. There was a reasonable basis for the WCJ to uphold the Medical Director's determination that conservative treatment failed and surgery was justified. Moreover, the medical records of Dr. Savoie and Dr. Landry further corroborate the Medical Director's finding that a tear existed, which required operative treatment. We further note that the WCJ made it clear at the November 2017 hearing that the Medical Director may have reviewed additional medical records, which were not before the WCJ, in making his determination.

Although it is unclear from the record, as to which additional documents the Medical Director reviewed in connection with making his decision, there is sufficient evidence to support the WCJ's conclusion that the Medical Director's decision was in accordance with the workers' compensation guidelines. Additionally, the Appellants failed to demonstrate by clear and convincing evidence that the decision of the Medical Director should be overturned, especially considering that they presented no medical evidence to contradict Mr. Burnett's claim. Therefore, we find that this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the December 8, 2017 judgment of the Office of Workers' Compensation, upholding a Medical Guidelines Dispute Decision that granted Lorae Burnett's request for right shoulder surgery.

AFFIRMED

      The acromion is that "part of the scapula, or shoulder blade, forming the tip of the shoulder and giving it its squareness to the latter. It projects forwards from the scapula, and, with the clavicle or collar bone in front, forms a protective arch of bone over the shoulder-joint."Black's Medical Dictionary 10 (41st ed. 2006). An "o. acromiale" is "an acromion that is joined to the scapular spine by fibrous rather than by bony union." Stedman's Medical Dictionary 1384 (28th ed. 2006).

      A pseudocyst is a "space within an organ without a defined lining and which contains fluid." Black's Medical Dictionary , supra , at 589-590.

      The AC, or acromioclavicular, joint is a "plane synovial joint between the acromial end of the clavicle and the medial margin of the acromion." Stedman's Medical Dictionary, supra, at 1012.

      The rotator cuff is "a musculo-tendinous structure that helps to stabilise the shoulder-joint." Black's Medical Dictionary, supra, at 625.

      ORIF is an open reduction and internal fixation. Stedman's Medical Dictionary, supra, at 1380.

      Additionally, Mr. Burnett asserts that this appeal is moot because his statutory employer, Metro Services Group, and its insurer, LWCC, approved and paid for the requested surgery; paid all back compensation, and are current on all indemnity payments. However, there is no evidence of these assertions in the record.

      We note that an arthroplasty, which Dr. Savoie requested, is listed as an operative treatment option for a shoulder injury in the Louisiana Administrative Code, Title 40, Part 1, Subpart 2, Chapter 23, Subchapter B, entitled Shoulder Injury Medical Treatment Guidelines . See 40 La. Admin. Code Pt I, 2327.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Chad Edward SPIERS a/k/a Chad E. Spiers a/k/a Chad Spiers, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01527-COA
    Court of Appeals of Mississippi.
    October 16, 2018
    ATTORNEY FOR APPELLANT: CHAD EDWARD SPIERS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, Jackson
    BEFORE GRIFFIS, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Chad Edward Spiers, appearing pro se, appeals the Harrison County Circuit Court's denial of his motion for postconviction relief (PCR). After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2015, Spiers pleaded guilty to credit-card fraud under Mississippi Code Annotated section 97-19-21 (Rev. 2014) and burglary under Mississippi Code Annotated section 99-19-81 (Rev. 2015). He was sentenced to three years for credit-card fraud as a habitual offender and seven years, with three years suspended, for the burglary conviction. The sentences were to run consecutively followed by three years of postrelease supervision. The sentencing order also stated that Spiers was to successfully complete a long-term drug and alcohol therapeutic program while in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. Spiers alleged that because he was in protective custody, he was not given the opportunity to participate in the long-term drug and alcohol therapeutic program. It appears that Spiers filed a grievance with the Administrative Remedy Program, pursuant to Mississippi Code Annotated sections 47-5-801 through 47-5-807 (Rev. 2015), stating that he wanted to be removed from protective custody and returned to general population. In September 2016, the MDOC responded to Spiers's grievance and informed him that they would review his placement back in the drug and alcohol program.

¶ 4. In May 2017, Spiers filed a PCR motion asking the circuit court to amend or otherwise change his sentence to eliminate required completion of the long-term drug and alcohol program. The circuit court denied the motion in October 2017. Spiers timely appeals.

STANDARD OF REVIEW

¶ 5. "We review the dismissal or denial of a PCR motion for abuse of discretion." Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). "We will only reverse if the trial court's decision is clearly erroneous." Id. "When reviewing questions of law, our standard is de novo." Id. "This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Id. (internal quotation marks omitted).

DISCUSSION

¶ 6. Spiers asserts that the circuit court erred in denying his PCR motion because he cannot successfully complete the long-term drug and alcohol therapeutic program as "mandated" by this sentencing order. Because neither the circuit court nor this Court has statutory authority to manage programs operated by the MDOC, we find Spiers's argument is without merit.

¶ 7. Spiers was sentenced to the long-term drug and alcohol therapeutic program by the circuit court; however, the program is run exclusively by the MDOC. See Miss. Code Ann. § 47-5-10 (Rev. 2015). "The courts do not manage MDOC inmates or operate the department of corrections." Jefferson v. State , 958 So.2d 1276, 1287 (¶ 34) (Miss. Ct. App. 2007). Furthermore, this Court has held that "the commissioner is charged with planning, developing, and coordinating a statewide comprehensive correctional program designed to train and rehabilitate offenders in order to prevent, control and retard recidivism." Id. "Not only that, the commissioner is vested with the exclusive authority and responsibility for the management and control of the correctional system and for the proper care, treatment, feeding, clothing, and management of the offenders confined therein." Id. ; see also Miss. Code Ann. § 47-5-23 (Rev. 2015). Therefore, we find no error in the circuit court's denial of Spiers's PCR motion citing that the courts did not manage MDOC inmates or operate the department of corrections.

¶ 8. Spiers also requested that the circuit court allow him to participate in the drug and alcohol treatment program during postrelease supervision. But, under Mississippi Code Annotated section 47-5-1003(4) (Rev. 2015), "[t]he courts may not require an offender to participate in the intensive supervision program during a term of probation or post-release supervision." See also Jefferson , 958 So.2d at 1286 (¶ 30).

¶ 9. Further, we note that there is nothing within Mississippi Code Annotated section 99-39-1 -119 (Rev. 2015) that would allow this Court to address Spiers's claim. Accordingly, we find this includes the long-term drug and alcohol therapeutic program under the exclusive supervision of the MDOC and find no abuse of discretion in the denial of Spiers's PCR motion.

¶ 10. 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.