author: CHAISSON, J.

text:
    Terre G. MATRANGA, John P. Greathouse, Jr., Gina F. Greathouse, and James E. Greathouse v. PARISH ANESTHESIA OF JEFFERSON, LLC, Monica Wilkinson, CRNA, Christopher Cougle, M.D., and Louisiana Medical Mutual Insurance Company
    NO. 17-CA-73
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TERRE G. MATRANGA, GINA F. GREATHOUSE, JOHN P. GREATHOUSE, JR., AND JAMES E. GREATHOUSE, Nelson W. Wagar, III, Sarah W. Hickman, Metairie
    COUNSEL FOR DEFENDANT/APPELLEE, EAST JEFFERSON GENERAL HOSPITAL FOUNDATION AND JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2 FOR THE PARISH OF JEFFERSON, STATE OF LOUISIANA D/B/A EAST JEFFERSON GENERAL HOSPITAL, Conrad Meyer, Charles O. Taylor, Metairie, Glenn S. Newbauer, New Orleans
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore
   CHAISSON, J.

Terre G. Matranga, John P. Greathouse, Jr., Gina F. Greathouse, and James E. Greathouse ("the Greathouses") appeal a judgment of the trial court sustaining an exception of prescription in favor of Jefferson Parish Hospital Service District # 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital ("EJGH") and dismissing their negligent credentialing and privileging claims against EJGH. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The Greathouses' mother, Doris Greathouse, died on June 9, 2008, six days after experiencing complications during her intubation for general anesthesia in preparation for elective heart surgery at EJGH. On June 2, 2009, pursuant to the provisions of the Louisiana Medical Malpractice Act ("LMMA"), the Greathouses timely requested the formation of a medical review panel to consider their medical malpractice claims against the anesthesiologist, Dr. Christopher Cougle, and the certified registered nurse anesthetist, Monica Wilkinson. On September 14, 2010, after receipt of an adverse opinion from the medical review panel, the Greathouses timely filed suit against Dr. Cougle, Ms. Wilkinson, their employer, Parish Anesthesia of Jefferson, LLC, and their insurer, Louisiana Medical Mutual Insurance Company (collectively, "the original defendants").

After a trial of the matter as to the claims against the original defendants, the jury returned a verdict in favor of defendants which the trial court adopted as the judgment of the court. Upon appeal by the Greathouses, this Court reversed the judgment and remanded the matter for a new trial. Matranga , 170 So.3d at 1099.

On March 8, 2016, the Greathouses filed a supplemental and amending petition in which they added EJGH as a defendant, alleging that it was negligent in its credentialing and privileging of Dr. Cougle to practice anesthesiology in its hospital. In response, EJGH filed an exception of prescription which was sustained by the trial court. It is from this judgment that the Greathouses now appeal.

On appeal, the Greathouses argue that the trial court erred in sustaining EJGH's exception of prescription because they alleged facts in their petition asserting that EJGH was a joint tortfeasor with the remaining, timely sued original defendants. The Greathouses further argue that their claim against EJGH has not prescribed because their petition against EJGH relates back to the filing of their petition against the original defendants.

DISCUSSION

Joint Tortfeasors

Prescription is interrupted by the commencement of suit against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462 ; Monson v. Travelers Prop. & Cas. Ins. Co. , 09-267 (La. App. 5 Cir. 12/8/09), 30 So.3d 66, 69. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art. 2324(C) ; Monson , 30 So.3d at 69.

There is no dispute that the Greathouses timely brought suit against the original defendants in a court of competent jurisdiction and venue and the suit was pending at the time they amended their petition to name EJGH as an additional defendant. Because the Greathouses have made sufficient allegations that EJGH is a joint tortfeasor with the original defendants, they argue that they are entitled to the benefit of the general rule regarding interruption of prescription as to joint tortfeasors such that prescription on their claim against EJGH was interrupted by the filing of the original suit, and that their claim against EJGH is not prescribed.

However, the LMMA provides a specific rule regarding the effect that the filing of a request for review of a medical malpractice claim against a health care provider has on the running of prescription as to joint tortfeasors. Specifically, La. R.S. 40:1231.8(A)(2)(a) provides, in pertinent part:

... The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review... (emphasis added)

The Greathouses argue that because their claim against EJGH is solely for negligent credentialing and privileging of Dr. Cougle, which is a claim sounding in general negligence as opposed to one sounding in medical malpractice, the provisions of the LMMA, including La. R.S. 40:1231.8(A)(2)(a), are not applicable to their claim against EJGH, regardless of the fact that EJGH is a qualified health care provider under the LMMA. They further argue, that because they are not subject to the provisions of the LMMA, they are entitled to rely upon the general rule regarding interruption of prescription as to joint tortfeasors found in La. C.C. art. 2324(C).

Therefore, the issue before this Court is whether the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a) are applicable to the Greathouses' negligent credentialing and privileging claim against EJGH, and further, if they are, whether they supersede the general rule regarding interruption of prescription as to joint tortfeasors found in La. C.C. art. 2324(C). For the following reasons, we find that the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a) are applicable to the Greathouses' claim against EJGH and that they do supersede the general rule regarding interruption of prescription found in La. C.C. art. 2324(C).

We begin our analysis with the language of the statute itself, which provides that "... filing of a request for review of a claim shall suspend the running of prescription against ... all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, ..." (emphasis added). La. R.S. 40:1231.8(A)(2)(a). The plain language of the statute indicates that it applies to all joint tortfeasors, not a particular subset of joint tortfeasors, identified either by their status or by the classification of the claim brought against them. Additionally, the qualifying phrase "... including but not limited to health care providers, ..." indicates that "health care providers" is a smaller subset of a larger set of joint tortfeasors to which the provision applies, supporting our interpretation that the legislature intended an expansive reading of the term "all joint tortfeasors." Had the legislature meant for the provision to apply only to a certain subset of joint tortfeasors, it could have expressed its intent in the language of the statute itself by using qualifying phrases for the term "joint tortfeasors" such as "only qualified health care providers," or "only health care providers, both qualified and not qualified," or "only against whom a medical malpractice claim is brought," rather than the expansive, all-inclusive term "all joint tortfeasors."

We further note that the Louisiana Supreme Court, in addressing the issue of which joint tortfeasors are subject to the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a), has adopted a broad interpretation of the phrase "all joint tortfeasors, including but not limited to health care providers." Milbert v. Answering Bureau, Inc. , 2013-0022 (La. 6/28/13), 120 So.3d 678. In Milbert , the initial, timely claim for medical malpractice was commenced against physicians and a hospital, all of which were health care providers, pursuant to the LMMA. A later suit, alleged to be untimely, was filed against one of the physician's answering service, a non-health care provider. The Supreme Court held that "... a non-health care provider may be a joint tortfeasor with a health care provider against whom a medical malpractice complaint has been filed, such that the suspension of the time limitations for filing suit under [ La. R.S. 40:1231.8(A)(2)(a) ] may apply to the filing of suit against the non-health care provider." Id. at 689.

Similarly, our Court has adopted a broad interpretation of the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a). See Kampmann v. Mason , 08-508 (La. App. 5 Cir. 1/13/09), 7 So.3d 675, writ denied , 2009-0319 (La. 4/3/09), 6 So.3d 775. In Kampmann , the initial, timely claim for medical malpractice was commenced against a physician and a pharmacist, both health care providers, pursuant to the LMMA. The later suit, alleged to be untimely, was filed against a drug manufacturer, a non-health care provider. Our Court, in applying the suspensive provisions regarding prescription of the LMMA, found that the "... LMMA provides that the running of prescription is suspended during proceedings before a medical review panel, not only for qualified health care providers but also for any parties solidarily or jointly liable." Id. at 680.

The Greathouses argue that their claim against EJGH is distinguishable because it is based in general negligence rather than in medical malpractice; however, we find no such distinction between this case and Milbert or Kampmann . Although those Courts did not expressly comment on the non-medical malpractice nature of the claims against the answering service ( Milbert ) or the drug manufacturer ( Kampmann ), it is clear that the claims against those entities were non-medical malpractice claims. We find no rational basis to apply a different rule, as suggested by the Greathouses, to a claim against a joint tortfeasor that is non-medical malpractice in nature, from the rule that is applied to joint tortfeasors against whom a medical malpractice claim is made, especially in light of the fact that the Louisiana Supreme Court declined to do so in Milbert .

Our interpretation of the language of the statute itself, and our review of the jurisprudence interpreting it, leads us to conclude that it is not the status of the subsequently added defendant (i.e. , qualified health care provider, non-qualified health care provider, or non-health care provider), nor the nature of the claim brought against the subsequently added defendant (i.e. , medical malpractice claim or non-malpractice claim) that controls whether the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a) are applicable to the subsequently added claim. In our view, the controlling factor is that the alleged joint tortfeasor against whom the initial timely claim is brought is a health care provider, whether qualified or not, against whom the claim is initiated by the timely filing of a request for review pursuant to the LMMA. In that scenario, the effect that the filing of a timely request for review pursuant to the LMMA has on all joint tortfeasors is controlled by La. R.S. 40:1231.8(A)(2)(a).

Having found that the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a) are applicable to subsequently filed non-medical malpractice claims, we next address the issue of whether a plaintiff in such a scenario is precluded from also relying upon the general rule regarding interruption of prescription as to joint tortfeasors found in La. C.C. art. 2324(C).

In Borel v. Young , 07-0419 (La. 11/27/07), 989 So.2d 42, the Louisiana Supreme Court held that "... the more specific provisions of the Medical Malpractice Act regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general code article on interruption of prescription against joint tortfeasors, LSA-C.C. art. 2324(C)." Id. at 69. The Greathouses, recognizing that the subsequently added claim in Borel was a medical malpractice claim against qualified health care providers, invites this Court to draw a distinction between their non-medical malpractice claim against EJGH and the claims in Borel . Again, we find no rational basis upon which to draw such a distinction.

In Borel , the Supreme Court specifically stated that "... considering the doctrinal underpinnings for the existence of the rules of suspension [found in the LMMA], it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to synergistically benefit the plaintiff." Id. at 67 (quoting LeBreton v. Rabito , 97-2221 (La. 7/8/1998), 714 So.2d 1226, 1231 ).

In Milbert , while the Supreme Court was not called upon to address this issue because the subsequently added claim against the answering service was filed within the suspended time limitations provided in La. R.S. 40:1231.8(A)(2)(a), the Court, in dicta , stated "[t]he Milberts do not seek the benefits of both the suspension of prescription provisions of the MMA and the interruption of prescription under the codal articles." Milbert , 120 So.3d at 685. In our view, this statement reveals a reservation on the part of the Supreme Court to allow a plaintiff to rely upon the benefits of suspension provided by La. R.S. 40:1231.8(A)(2)(a) and also rely upon the benefits of interruption provided by La. C.C. art. 2324(C), even where the subsequently added claim is not one of medical malpractice.

In Kampmann , involving a subsequently added non-medical malpractice claim against a non-health care provider, our Court, quoting from Borel , stated "... the [more] specific provisions of the Medical Malpractice Act regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general code article on interruption of prescription against joint tortfeasors, LSA-C.C. art. 2324(C)." Kampmann , 7 So.3d at 681. While it is not entirely clear to us that the plaintiff in Kampmann argued for the benefit of interruption under La. C.C. art. 2324(C), it is clear that the Court found his subsequently added non-medical malpractice claim against the drug manufacturer was subject to the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a), and that he did not additionally receive the benefit of interruption of prescription under La. C.C. art. 2324(C), even though his timely filed initial claims against the alleged joint tortfeasors were still pending.

From our review of these cases, we conclude that the rule of Borel (that a plaintiff subsequently adding a claim of medical malpractice against a health care provider to a previously filed timely claim against a joint tortfeasor under the LMMA, may not rely upon the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a) and the general rule of interruption) is equally applicable to a plaintiff who subsequently adds a claim not based in medical malpractice. That plaintiff, whose subsequent claim against an alleged joint tortfeasor is subject to the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a), may not also rely upon the general rule of interruption provided by La. C.C. art. 2324(C).

Consequently, because the alleged joint tortfeasors, Dr. Cougle and Ms. Wilkinson, are health care providers against whom the initial claims were commenced by the filing of a request for review pursuant to the LMMA, the running of prescription as to claims against all other joint tortfeasors, including EJGH, is controlled by La. R.S. 40:1231.8(A)(2)(a). The filing of their request for review against Dr. Cougle and Ms. Wilkinson on June 2, 2009, suspended the running of prescription with one day remaining on the one-year liberative prescriptive period to bring their claim. Prescription was suspended until October 17, 2010, which was ninety days after notification to the Greathouses, by certified mail, of the opinion of the medical review panel. The Greathouses therefore had until October 18, 2010, to file suit against not only Dr. Cougle and Ms. Wilkinson, but also against all alleged joint tortfeasors with whom they were potentially jointly liable, including EJGH. Their suit against the original defendants filed on September 14, 2010, was therefore timely; however, their claim against EJGH, filed on March 8, 2016, was not timely.

Relation Back of Amended Petition

La. C.C.P. art. 1153 provides that "[w]hen the action or 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." The first criteria that must be met in determining whether Article 1153 allows an amendment to relate back to the date of filing of the original petition is "... the amended claim must arise out of the same transaction or occurrence set forth in the original pleading."

Bulliard v. City of St. Martinville , 14-140 (La. App. 3 Cir. 6/4/14), 139 So.3d 1269, 1273.

The alleged acts of medical malpractice set forth in the Greathouses' original complaint against Dr. Cougle and Ms. Wilkinson occurred on June 3, 2008, during preparation for Mrs. Greathouse's surgical procedure. According to their amended petition, the alleged acts of negligent credentialing and privileging by EJGH occurred "[b]eginning in 2007."

We recognize that the Louisiana Supreme Court, in Billeaudeau , distinguished between the "... 'supervision and training of the health care providers' once they enter the building and engage in the practice of medicine therein," which clearly falls under the definition of malpractice in the LMMA, and negligent credentialing and privileging that takes place in the hiring process when the physician first enters the hospital, which the Court found to be a claim in general negligence. Billeaudeau , 218 So.3d at 520-24. Consequently, although the phrase "beginning in 2007" is indeterminate, we find that, under the rational of Billeaudeau , the alleged negligent conduct of EJGH, in order to be characterized as negligent credentialing and privileging, is necessarily limited to the time period when Dr. Cougle was hired to begin practicing at EJGH. Any later alleged negligent conduct of EJGH, and certainly any alleged negligent conduct of EJGH that was occurring contemporaneously with Dr. Cougle's and Ms. Wilkinson's alleged medical malpractice in June 2008, would clearly be conduct within the ambit of "... training or supervision of health care providers ...," which falls squarely within the definition of medical malpractice. The Greathouses have emphasized that their claim against EJGH is solely for negligent credentialing and privileging, and therefore not medical malpractice, in order to support their argument that their claim against EJGH is excluded from the purview of the LMMA.

We find that the conduct alleged against EJGH, which occurred "beginning in 2007," does not arise out of the same alleged negligent conduct of Dr. Cougle and Ms. Wilkinson, which occurred on June 3, 2008. We conclude that the Greathouses' argument regarding relation back of their amended petition has no merit.

CONCLUSION

For the reasons stated, we find that the Greathouses' claim against EJGH for negligent credentialing and privileging is prescribed, and we therefore affirm the judgment of the trial court sustaining EJGH's exception of prescription and dismissing their lawsuit as to EJGH with prejudice.

AFFIRMED

      This is the second time that this matter has come before this Court on appeal. A more detailed recitation of the underlying facts that gave rise to this litigation is contained in this Court's opinion in the first appeal, and will not be repeated here. See Matranga v. Parish Anesthesia of Jefferson, LLC , 14-448 (La. App. 5 Cir. 5/14/15), 170 So.3d 1077, writs denied , 2015-1143 and 2015-1168 (La. 9/18/15), 178 So.3d 148 and 178 So.3d 152.

      Effective May 9, 2018, the LMMA, previously La. R.S. 40:1299.41 et seq. , was re-designated as La. R.S. 40:1231.1 et seq.

      The suit was originally filed in Orleans Parish but was transferred to Jefferson Parish on June 28, 2011, after defendants' exceptions of insufficiency of service of process, lack of jurisdiction, and improper venue were sustained.

      EJGH also filed exceptions of peremption, prematurity, vagueness, and non-conformity of the petition; however, the judgment as to those exceptions has not been appealed and therefore those exceptions are not discussed herein.

      Because we hold that the Greathouses are not able to rely upon the general rule of interruption of prescription found in La. C.C. art. 2324(C), it is not necessary for us to address EJGH's arguments regarding whether the initial filing of suit in the wrong venue, Orleans Parish, served to interrupt prescription.

      Previously La. R.S. 40:1299.47(A)(2)(a).

      Seven months after the Greathouses amended their petition in this matter to add EJGH as a defendant, the Louisiana Supreme Court had occasion to resolve disagreement among our Courts regarding the nature of a negligent credentialing claim. The Court held that a negligent credentialing claim sounds in general negligence and therefore does not fall within the provisions of the LMMA. Billeaudeau v. Opelousas Gen. Hosp. Auth. , 2016-0846 (La. 10/19/16), 218 So.3d 513, 527.

      We note that, although the Supreme Court focused on the status of the answering service as a non-health care provider, the answering service, in its attempt to avoid the application of the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a), argued, as do the Greathouses herein, that the later-filed claim was one based on general negligence, not medical malpractice, and therefore not subject to the provisions of the LMMA. Although presented with the opportunity to find the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a) inapplicable to the claim against the answering service on that basis, the Supreme Court, without expressly stating so, apparently rejected that argument and found the suspensive provisions of La. R.S. 40:1231.8(A)(2)(a) applicable to that claim.

      Like the Supreme Court in Milbert , our Court did not comment on the non-medical malpractice nature of the claim brought against the drug manufacturer, but rather focused upon the non-health care provider status of the drug manufacturer. Our Court found that the suspensive provisions regarding prescription found in La. R.S. 40:1231.8(A)(2)(a) were applicable to the claim against the drug manufacturer, but held that the plaintiff's claim against the drug manufacturer had nonetheless prescribed because it was filed outside of the suspensive time limitations provided in La. R.S. 40:1231.8(A)(2)(a) and that the plaintiff had not shown that he was entitled to rely upon the doctrine of contra non valentem .

      The LMMA specifically defines medical malpractice as "... an unintentional tort or any breach of contract ...by a health care provider , ..." (emphasis added). La. R.S. 40:1231.1(A)(13). The LMMA's definition of "health care provider," which provides an exclusive list, does not include an answering service or drug manufacturer. La. R.S. 40:1231.1(A)(10).

      The Greathouses argue that their claim against EJGH, based in general negligence, does not come within the purview of the LMMA and that they do not rely upon the suspensive provisions of the LMMA to defeat EJGH's exception of prescription. However, we note that without the benefit of the suspensive provisions of the LMMA, their lawsuit against Dr. Cougle and Ms. Wilkinson would not have been timely and could not serve to interrupt prescription as to their lawsuit against EJGH.

      La. R.S. 9:5628 provides for a one-year liberative prescription for medical malpractice claims.

      The prescriptive period for the non-medical malpractice claim against EJGH is also one year. La. C.C. art. 3492.


source: Caselaw Access Project

author: KOVACH, PRO TEMPORE, J.

license: Public Domain

text:
    STATE of Louisiana v. Bobby C. TERRICK
    NO. 18-KA-102
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, BOBBY C. TERRICK, Jane L. Beebe
    DEFENDANT/APPELLANT, BOBBY C. TERRICK, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
   KOVACH, PRO TEMPORE, J.

Defendant, Bobby C. Terrick, appeals his sentence of life imprisonment with parole eligibility in twenty-five years, which was imposed on resentencing, for his 2002 second degree murder conviction. For the following reasons, we affirm defendant's sentence. We also grant appellate counsel's motion to withdraw as counsel of record, and remand the matter to the trial court for correction of the November 11, 2017 minute entry in accordance with this opinion.

PROCEDURAL HISTORY

This is defendant's second appeal. Defendant was a juvenile at the time of the offense on July 27, 2001 and was tried as an adult on a charge of second degree murder. The conviction and resulting sentence of life in prison without the benefit of parole, probation or suspension of sentence were affirmed by this Court.

Since that appeal, in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012), the United States Supreme Court has held that the Eighth Amendment prohibition of cruel and unusual punishment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. On June 20, 2013, defendant filed a "Motion to Correct Illegal Sentence and Supporting Memorandum of Law and Facts," in which he requested resentencing pursuant to Miller. In response, the trial court set a hearing on September 13, 2013 for consideration of defendant's request for resentencing. However, the matter was continued due to the fact that on the date of the scheduled hearing, defendant filed a "Motion for Discovery", requesting various documents and information in the State's possession for consideration of resentencing under Miller .

On March 24, 2016, defendant filed a pro se "Motion to Amend Motion to Correct Illegal Sentence Supporting Memorandum of Law and Facts," re-urging the arguments made in prior pleadings challenging the legality of his sentence. On March 30, 2016, defendant filed a "Motion for Appointment of Counsel and Funding" and a portfolio containing religious, educational and self-help improvement certificates for the trial court's consideration. On November 30, 2017, after several continuances, the trial court heard the merits of defendant's motions. At that time, the trial court resentenced defendant pursuant to La. R.S. 15:574.4D to "life with the benefit of parole after serving twenty-five years". Defendant filed a timely appeal and the court assigned the Louisiana Appellate Project to represent defendant on appeal.

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted). In Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal, nor ruling of the trial court to be challenged. She further states that she considered whether to raise the issue of excessiveness of sentence but felt such a claim would be frivolous. Appellate counsel points out that the trial court sentenced defendant to the mandatory minimum and granted parole eligibility with credit for time served. She also asserts that trial counsel lodged an objection to the sentence but did not file a motion to reconsider the new sentence and did not request a downward departure at the hearing or resentencing. As such, appellate counsel contends that the sentence would not be regarded as constitutionally excessive.

Upon receipt of appellate counsel's brief, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that giving him a return date to file a pro se supplemental brief. Defendant filed a pro se Motion to Supplement (Appellate Brief) and a "Supplement Brief" on April 10 and 20, 2018, respectively.

ASSIGNMENTS OF ERROR

Defendant filed a pro se brief assigning three errors for our review.

Pro se assignment of error number one

Whether the 5th Circuit Court of Appeal judgment on pro se application is premature absent a complete record assignment of error and issue presented should be revived for a full and fair opportunity to be heard for a independent judicial review. (sic)

Defendant's first assignment of error relates to this Court's disposition in a prior pro se writ application filed on December 15, 2017, challenging his November 30, 2017 resentencing. This Court denied that writ, finding that because the sentence was appealable, the merits of the writ application would not be considered in the writ application.

On April 10, 2018, this Court transmitted the appellate record to defendant at his request and gave him until May 10, 2018, to file a supplemental brief. Defendant filed a pro se Motion to Supplement (Appellate Brief) and a "Supplement Brief" on April 10 and 20, 2018, respectively. It is clear defendant had access to the November 30, 2017 resentencing transcript at the time he filed his supplemental brief because he made references to it in his supplemental brief.

Defendant has now challenged his November 30, 2017 resentencing in the instant appeal, this Court has the entire appellate record and will address defendant's pro se assignments of error, thus giving defendant a full and fair opportunity to be heard. The merits of defendant's challenge to his sentence are now properly before us in this appeal. Accordingly, we find no merit in this assignment of error.

Pro se assignment of error numbers two and three

Does the Due Process Clause 14th amendment and fair warning 5th Amendment of the U.S. Constitution and La. Const. (1974) Article 182 and Article 1315 null and void a judicial decisionmaking that retroactively apply a statutory enactment created after sentence of accused and commission of offense. (sic)
Does the Ex Post Facto Clause lack a legislative act to be applied retrospective abridging a pre-existing constitutional guarantee. (sic)

As we understand defendant's arguments in these two assignments of error, he asserts that his resentencing on November 30, 2017 under La. R.S. 15:574.4, violated the Ex Post Facto Clause and his constitutional rights to due process and fair warning. He indicates that he should have been resentenced to the lesser responsive verdict of manslaughter, the law that was in effect at the time he committed the offense. Consideration of this issue, along with a full discussion of the law and analysis of the final sentence, follows.

Under Miller, Louisiana's sentencing scheme that mandated life in prison without the possibility of parole for juvenile offenders could no longer stand. To comply with the directive set forth in Miller , the Louisiana Legislature passed 2013 La. Act 239 ("the Act"). The Act created La. C.Cr.P. art. 878.1, which directs the district courts to conduct a hearing before sentencing to determine whether the life sentence to be imposed on a juvenile homicide offender should be with or without parole eligibility. The Act also created La. R.S. 15:574.4(E)(1), which provides the conditions that must be met by any juvenile homicide offender serving a sentence with a judicial determination of parole eligibility pursuant to article 878.1 in order to be considered for parole.

On November 5, 2013, in State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied , 572 U.S. 1137, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), the Louisiana Supreme Court held that Miller , which set forth a new rule of constitutional procedure for sentencing, was not subject to retroactive application and was to be applied prospectively only. The Tate court further held that La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E)(1), which codified the Miller rule, applied prospectively only.

However, in January of 2016, in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), as revised (Jan. 27, 2016), the United States Supreme Court abrogated the Tate decision and held that Miller applied retroactively to defendants whose convictions and sentences became final prior to the Miller decision in 2012. In Montgomery , the United States Supreme Court addressed concerns that the retroactive application of Miller would place an undue hardship on states. The Court stated:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile received life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity - and who have since matured - will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Montgomery , 136 S.Ct. at 736 (citation omitted).

The United States Supreme Court, thereafter, remanded the matter to the Louisiana Supreme Court. On remand, in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, the Louisiana Supreme Court acknowledged the Miller ruling and reasoning and remanded the matter to the district court for resentencing of defendant.

In the matter before us, defendant was resentenced pursuant to La. R.S. 15:574.4 and La. C.Cr.P. art. 878.1, which have been amended and reenacted subsequent to the Montgomery opinion.

La. R.S. 15:574.4(G)(1), provides:

G. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense was prior to August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(B) and all of the following conditions have been met:
(a) The offender has served twenty-five years of the sentence imposed.
(b) The offender has not committed any major disciplinary offenses in the twelve consecutive months prior to the parole hearing date. A major disciplinary offense is an offense identified as a Schedule B offense by the Department of Public Safety and Corrections in the Disciplinary Rules and Procedures for Adult Offenders.
(c) The offender has completed the mandatory minimum of one hundred hours of pre-release programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.

The applicable version of art. 878.1 provides in pertinent part as follows:

B. (1) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

The defendant argues that applying La. R.S. 15:574.4 in resentencing a defendant pursuant to Miller violates the ex post facto clause and his constitutional rights to due process and fair warning. He further argues he should be resentenced to the lesser responsive verdict of manslaughter, the law that was in effect at the time he committed the offense.

Art. I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. Application of La. R.S. 15:574.4(E) in the instant matter did neither. State v. Jackson , 51,527 (La. App. 2 Cir. 8/9/17), 243 So.3d 1093, 1099, writ denied, 17-1540 (La. 5/25/18), 243 So.3d 565.

Eligibility for parole is the sole question to be answered in a Miller hearing.

State v. Stewart , 17-297 (La. App. 5 Cir. 11/29/17), 232 So.3d 1284. There is no consideration of whether the defendant was entitled to a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court is required to consider only whether that mandatory sentence should include parole eligibility. Id.

Moreover, Louisiana courts have repeatedly rejected the argument that resentencing pursuant to Miller , requires a defendant to be sentenced under the manslaughter statute. State v. Brown , 51,418 (La. App. 2 Cir. 6/21/17), --- So.3d ----, writ denied, 17-1287 (La. 4/27/18), 241 So.3d 306, and cases cited therein.

In the matter before us, the record shows that the trial judge adhered to the law set forth in Miller and its progeny in resentencing. According to that law, the trial judge's purpose at the hearing was to determine whether to resentence defendant to life imprisonment with parole eligibility or life imprisonment without parole eligibility. After reviewing the law, the exhibits, and the facts of the case, the trial judge chose to vacate defendant's sentence and resentence him to life imprisonment with parole eligibility in twenty-five years, the less severe of the two potential penalties. Defendant's sentence now provides him with a meaningful opportunity for release. In light of the foregoing, we find that defendant's sentence was neither excessive, nor an infringement of the principles of ex post facto . Therefore, we find no merit in defendant's assignments of error.

ERRORS PATENT

This Court has reviewed the record for errors patent according to La. C.Cr.P. art. 920. State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). A review reveals that, although the resentencing transcript, minute entry indicate that defendant was sentenced pursuant to La. R.S. 15:574.4(D), defendant was actually sentenced under La. R.S. 15:574.4(G). Section (D)(1) provides that the statute is not applicable to a person who is serving a life sentence for second degree murder. Defendant in the instant case is serving a life sentence for second degree murder. Section (G)(1) provides that the statute is applicable to any person serving a life sentence for second degree murder who was under the age of eighteen at the time of the offense and whose indictment for the offense was prior to August 1, 2017. Defendant in the instant case meets those requirements. For purposes of accuracy, we remand this matter to the trial court with instructions to amend the minute entry of commitment to reflect that defendant was sentenced under La. R.S. 15:574.4(G).

Finally, we find that an independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. The minute entry reflects that defendant and his counsel appeared at his resentencing. As such, there are no appealable issues surrounding defendant's presence. Accordingly, we grant appellate counsel's motion to withdraw as counsel of record.

DECREE

For the foregoing reasons, we affirm defendant's sentence, and we remand the matter to the trial court for correction of the November 30, 2017 minute entry and commitment to indicate defendant was resentenced pursuant to La. R.S. 15:574.4(G). We also grant appellate counsel's motion to withdraw as counsel of record.

AFFIRMED; REMANDED FOR CORRECTION OF MINUTE ENTRY; MOTION TO WITHDRAW GRANTED.

      There is some confusion over whether defendant was 16 or 17 at the time of the offense.

      State v. Terrick , 03-515 (La. App. 5 Cir. 9/30/03), 857 So.2d 1153, 1155, writ denied , 03-3272 (La. 3/26/04), 871 So.2d 346. The facts of the crime were fully set out in that opinion and will not be repeated herein.

      Defendant has filed other applications for post-conviction conviction relief which have been ruled upon by the trial court and reviewed by this Court. However, those applications are irrelevant to the issue in this appeal and are not included in the procedural history.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      Terrick v. State of Louisiana , 17-KH-681 (La. App. 5 Cir. 3/8/18) (unpublished writ disposition).

      La. C.Cr.P. art. 878.1 was subsequently amended by 2017 La. Acts No. 277, § 2, effective August 1, 2017, to restate that the "sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility[,]" among other minor changes. La. R.S. 15:574.4 was subsequently amended by 2017 La. Acts No. 277, § 1, effective August 1, 2017, to reduce the required time to 25 years from the prior time of 35 years.


author: JOHNSON, J.

text:
    Doris STOGNER v. OCHSNER CLINIC FOUNDATION
    NO. 18-CA-96
    Court of Appeal of Louisiana, Fifth Circuit.
    September 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, DORIS STOGNER: Sidney D. Torres, III, Roberta L. Burns, Beau F. Camel, Chalmette.
    COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION: Joseph J. Lowenthal, Jr., New Orleans.
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
   JOHNSON, J.

In this slip and fall case, Plaintiff appeals the granting of summary judgment in favor of one of the defendants, Ochsner Clinic Foundation ("Ochsner"), dismissing her claims against Ochsner with prejudice. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

On May 25, 2011, Plaintiff, Doris Stogner, accompanied her friend, John Esteves, to Ochsner on Jefferson Highway for his doctor's appointment. As they were walking towards the parking garage's elevators through the atrium, Ms. Stogner slipped and fell to the ground. Ochsner's security officer, Frank George, responded to the scene within minutes and noted there was some type of liquid substance on the floor where Ms. Stogner slipped. He further noted there were no caution signs posted in the area. Ms. Stogner was subsequently taken to the emergency department after complaining of back pain.

On May 21, 2012, Ms. Stogner filed suit against Ochsner seeking damages for injuries she allegedly sustained to her back, right knee and right ankle as a result of the fall. In her petition for damages, she asserted that Ochsner was negligent for failing to maintain the atrium common area in a safe condition and in allowing the slippery substance to exist on the floor, and that it was strictly liable for the defective condition of the floor. She also asserted Ochsner was liable under the theory of res ipsa loquitur .

Ms. Stogner later amended her petition to add Anthony's Landscaping, L.L.C. ("Anthony's Landscaping") and its insurer, Seneca Specialty Insurance Company, as defendants. Ms. Stogner alleged that Anthony's Landscaping contracted with Ochsner to provide plant installation and maintenance services at the Ochsner facility where the incident occurred, and that its employees were actively maintaining plants at the facility at the time of the incident. She asserted that Anthony's Landscaping contributed to the creation of the unreasonably dangerous condition at issue on Ochsner's premises.

In July 2017, Ochsner filed a motion for summary judgment on the basis Anthony's Landscaping was an independent contractor for which Ochsner was not liable, and that it undertook reasonable measures to eliminate the risk of someone slipping and falling on its premises and, thus, could not be liable under negligence, strict liability or res ipsa loquitur . In support of its motion, Ochsner submitted several exhibits - the partial depositions of various witnesses indicating Ms. Stogner slipped on a liquid substance and that there was someone taking care of the plants in the area; Ochsner's "standing order" for the services of Anthony's Landscaping for the period of July 2010 through June 2013; and the affidavit of the assistant vice president for support services at Ochsner (Lawrence Lorio), which stated that Ochsner had a set procedure for the inspection of the premises on the date of the incident.

Ms. Stogner opposed the motion for summary judgment, relying on many of the same exhibits used by Ochsner as well as various discovery responses by Ochsner. Ms. Stogner maintained there were genuine issues of material fact regarding the source of the liquid substance that caused her fall, the status of Anthony's Landscaping as an independent contractor, whether Ochsner conducted proper inspections of the premises and followed its own procedures and policies for inspections on the day of the accident, and whether the flooring was slip resistant as required by applicable building and safety code standards.

A hearing on the motion for summary judgment was held on November 21, 2017. During the motion hearing, Plaintiff's counsel conceded that this case was not one of strict liability, but maintained Plaintiff's claims of negligence and res ipsa loquitur . At the conclusion of the hearing, the trial court granted summary judgment in favor of Ochsner. The trial court reasoned that there was no issue of material fact regarding the origin of the liquid substance on the floor. The trial court explained that if the liquid was caused by Anthony's Landscaping through watering the plants, Ochsner was not responsible because Anthony's Landscaping was an independent contractor. The trial court further determined Ochsner established it had a sufficient procedure in place for inspecting the premises and there was no evidence that the procedure had not been followed on the day of the accident. The trial court signed a written judgment on December 5, 2017, granting Ochsner summary judgment and dismissing it from the lawsuit.

ISSUE

Plaintiff appeals the granting of summary judgment in favor of Ochsner, arguing that several genuine issues of material fact exist so as to preclude summary judgment. Specifically, Plaintiff contends issues of material fact exist as to the origin of the liquid substance, whether Anthony's Landscaping was an independent contractor, and whether Ochsner proved it had adequate inspection procedures in place and that it followed its established procedures on the date of the accident.

LAW & ANALYSIS

Appellate courts review summary judgment de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Batiste v. United Fire & Casualty Co. , 17-482 (La. App. 5 Cir. 3/14/18), 241 So.3d 491, 496. Specifically, summary judgment shall be granted "if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2). However, summary judgment is not a substitute for trial on the merits. Boros v. Lobell , 15-55 (La. App. 5 Cir. 9/23/15), 176 So.3d 689, 693.

The party bringing the motion bears the burden of proof; however, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966(D)(1). Thereafter, the burden is on the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Batiste , supra, citing Babin v. Winn Dixie La., Inc. 00-78 (La. 6/30/00), 764 So.2d 37, 40.

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Jackson v. City of New Orleans , 12-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). A genuine issue of material fact is one as to which reasonable minds could disagree; if reasonable minds could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Whether a particular fact in dispute is material for purposes of summary judgment can only be determined in light of the substantive law applicable to the case. Id. When examining factual issues, courts may not consider the merits of the case, make credibility determinations, evaluate testimony, or weigh evidence. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ). "[D]espite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor."

Willis v. Medders , 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050.

Hospital liability in a slip and fall case falls under the general negligence standards. Grinnell v. St. Francis Medical Center, Inc. , 48,249 (La. App. 2 Cir. 8/21/13), 156 So.3d 117, 122. Under a negligence standard, a hospital owes a duty to its visitors to exercise reasonable care for their safety, commensurate with the particular circumstances involved. Terrance v. Baton Rouge Medical Center , 10-11 (La. App. 1 Cir. 6/11/10), 39 So.3d 842, 844, writ denied , 10-1624 (La. 10/8/10), 46 So.3d 1271. This duty calls for the hospital to take reasonable measures to monitor its premises for occasional third party spills. Grinnell , supra.

In a slip and fall suit, a plaintiff makes a prima facie case when she shows that she slipped and fell on a foreign substance on the floor and that she suffered injury as a result. LeBlanc v. Alton Ochsner Medical Foundation , 563 So.2d 312, 315 (La. App. 5th Cir. 1990). Once a plaintiff makes this showing, the burden of proof shifts to the premise owner to exculpate itself from the presumption of negligence by showing it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. Id. at 315-16. This showing includes evidence of the enforcement of reasonable protective measures, including periodic inspections, to keep the floors free of foreign substances and debris. Id.

Since the evidence offered in connection with the motion for summary judgment showed that Ms. Stogner slipped and fell on a foreign substance on the floor and sustained injury, the burden was on Ochsner to show there were no genuine issues of material fact that it acted reasonably to discover and correct any dangerous condition.

To carry its burden of proof, Ochsner offered the sole affidavit of Lawrence Lorio, its assistant vice president for support services. In his affidavit, he attested that at the time of the accident, Ochsner had an established procedure for regular inspection of its premises. He explained the inspection procedure as follows:

(2) ...Ochsner employed a "police tech" from our environmental services department responsible to monitor the first floor atrium between the parking garage elevators and the double doors to the Clinic.
(3) The "police tech" would generally make rounds of the specific atrium area approximately every 30 minutes.
(4) Additionally, a zone coordinator would typically make rounds of the specific atrium area every one to two hours.
(5) As part of their duties, these personnel would inspect for any foreign substances on the floor in the specific atrium area and arrange for immediate appropriate cleanup if any foreign substances were found.

[Emphasis added.]

We find that based on this affidavit alone, Ochsner failed to prove that it was entitled to judgment as a matter of law. Ochsner has the burden of proving it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. In determining the reasonableness of a hospital's protective measures, the fact finder must consider the relationship between the risk of a fall and the reasonableness of the measures taken by the hospital to eliminate the risk. Toussaint v. Baton Rouge General Medical Center , 18-29, *4 (La. App. 1 Cir. 6/4/18), 251 So.3d 1151, 2018 WL 2676677, 2018 La. App. LEXIS 1136. The determination of whether the measures taken by a hospital to eliminate the risk were reasonable is a question of fact. Id. "[S]ummary judgment is rarely appropriate for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case." Jones v. Gov.'t Employees Insurance Co. , 16-1168 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 925 (internal citations omitted).

Upon review of Mr. Lorio's affidavit, we find reasonable minds could differ as to whether the stated inspection procedures were reasonable under the circumstances of the case. Additionally, there is a question of fact as to whether Ochsner acted reasonably in its efforts to discover a dangerous condition by actually enforcing its established procedures. As stated above, Ochsner must establish it acted reasonably to discover and correct the dangerous condition, which includes evidence of the enforcement of reasonable protective measures. LeBlanc , supra . Simply stating there are procedures in place where inspections of the premises are "generally" and "typically" made fails to demonstrate the reasonableness of Ochsner's actions.

Additionally, we note genuine issues of material fact exist as to the source of the liquid substance that was on the floor. Ochsner argues the liquid substance clearly came from Anthony's Landscaping, an independent contractor for which it is not liable. However, upon review of the motion for summary judgment evidence, we find the source of the liquid substance is not clear. Ms. Stogner's friend stated he saw a lady "spraying the plants" about 40-50 feet away from where Ms. Stogner fell. He noted the lady was not in uniform. Ted Anthony, with Anthony's Landscaping, stated that on the day of the accident, which was a Wednesday, Anthony's Landscaping had two male employees and not a female, who cleaned the ledges in the atrium, and not the plants. He also testified that employees wore uniforms consisting of khaki bottoms and different color shirts with the company logo.

Mr. Anthony explained that Anthony's Landscaping service schedule for Ochsner has been the same for the past 10 years - it cleans the plant leaves on Mondays and Tuesdays, cleans the atrium ledges on Wednesdays, and does plant replacement on Fridays. He further testified that no employee would have been servicing the plants on the ground level of the atrium that day. He also noted that the company does not use sprays to clean the plant leaves, but rather only a dry cloth is used.

The responding security guard, Frank George, testified that he saw people working on the plants on the second floor, not the first. He specifically noted the workers were spraying the plants and were using a spray container. Although his security report indicated that he saw the plant workers earlier in the morning before Ms. Stogner's fall, he testified in his deposition that he did not see the plant workers until after the accident.

In order to determine whether the liquid substance was caused by Anthony's Landscaping or another source, the evidence must be weighed and credibility of the witnesses must be determined, both of which are impermissible for purposes of summary judgment.

While we recognize that summary judgments are legislatively favored, as noted above, they are not and were never intended to be a substitute for a trial on the merits. Boros , supra . Upon de novo review of this case, we find there are several issues of material fact and, thus, summary judgment is inappropriate.

DECREE

For the foregoing reasons and based on the evidence presented, we find the trial court erred in granting summary judgment in favor of Ochsner. Accordingly, we vacate the December 5, 2017 judgment and remand the matter for further proceedings.

REVERSED

      Plaintiff initially filed suit in Civil District Court for the Parish of Orleans. Ochsner filed an exception of improper venue which was sustained, and the lawsuit was transferred to the 24th Judicial District Court for the Parish of Jefferson.

      Specifically, counsel stated: "...the only indication of strict liability is the case law, which it's strict liability per se in that Article 2315 and 2317 call for the same duty of a premises owner. But there is no direct 2317 strict liability claims here."

      Because Ochsner is not a public entity, the notice requirement of La. R.S. 9:2800, which requires a plaintiff to prove the public entity had actual or constructive notice of the vice or defect, does not apply. See Hoffman v. Jefferson Parish Hosp. Servs. Dist. No. 2 , 11-776 (La. App. 5 Cir. 4/10/12), 87 So.3d 370, 374, writ denied , 12-1295 (La. 9/28/12), 98 So.3d 842.


text:
    STATE of Louisiana v. Bernard R. WILLIAMS a.k.a. Bernard Bradley
    NO. 18-KA-137
    Court of Appeal of Louisiana, Fifth Circuit.
    September 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, BERNARD R. WILLIAMS A.K.A. BERNARD BRADLEY, Cynthia K. Meyer
    DEFENDANT/APPELLANT, BERNARD R. WILLIAMS A.K.A. BERNARD BRADLEY, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
   JOHNSON, J.

Defendant, Bernard R. Williams a/k/a Bernard Bradley, appeals his convictions for possession of a firearm by a convicted felon and obstruction of justice from the 24th Judicial District Court, Division "J".

For the following reasons, we affirm Defendant's convictions and sentences and remand the matter for correction of the uniform commitment order. Furthermore, we grant appellate counsel's motion to withdraw.

FACTS AND PROCEDURAL HISTORY

On November 16, 2016, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count one), and obstruction of justice, in violation of La. R.S. 14:130.1 (count two), in district court case number 16-4704. The bill of information alleged that on or between July 21, 2016 and July 26, 2016, in Jefferson Parish, Defendant violated La. R.S. 14:95.1 by possessing a firearm after having been previously convicted three times of possession of cocaine, in violation of La. R.S. 40:967(C). The State alleged that Defendant's prior convictions occurred on August 3, 2009, in district court case number 08-5286, in Division "G" of the 24th Judicial District Court; on August 24, 2007, in district court case number 07-1644, in Division "B" of the 24th Judicial District Court; and on May 12, 2006, in district court case number 06-1976, in Division "A" of the 24th Judicial District Court (count one). It further alleged that on July 26, 2016, in Jefferson Parish, Defendant obstructed justice by tampering with evidence in the murder investigation of Darnell Washington by removing the murder weapon, a semi-automatic handgun, from the scene of the crime when he knew it was relevant to the criminal investigation (count two). On November 30, 2016, Defendant pleaded not guilty at his arraignment.

On August 2, 2017, the trial court heard Defendant's motion to suppress evidence and statement. The hearing was held open and continued until August 7, 2017. On August 7, 2017, Defendant's motion to suppress evidence and statement was denied. On August 9, 2017, Defendant filed a motion in limine to exclude testimony at trial regarding his alleged involvement in a murder. On September 20, 2017, the trial court heard and denied Defendant's motion in limine .

On October 11, 2017, Defendant withdrew his pleas of not guilty and tendered pleas of guilty as charged on both counts. On the same date, in accordance with the plea agreement, the trial court sentenced Defendant to 20 years imprisonment in the Department of Corrections without the benefit of parole, probation or suspension of sentence (count one) and to 20 years imprisonment in the Department of Corrections (count two) to run concurrently with each other and with the sentences in district court case numbers 16-6804 and 17-2694.

On November 9, 2017, Defendant filed a pro se "Motion to Reconsider the Imposed Sentence and Contradictory Hearing," arguing that his sentences were excessive and the trial court failed to comply with La. C.Cr.P. art. 894.1. Also on that date, Defendant filed a pro se notice of appeal and designation of record. On November 29, 2017, the trial judge denied Defendant's pro se motion to reconsider his sentences and granted Defendant's notice of appeal. The instant appeal followed.

ASSIGNMENTS OF ERROR

Through counsel, Defendant seeks review of his convictions and sentences in conformity with the procedures outlined in State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ). In his pro se assignment of error, Defendant alleges the trial court erred in denying his motion to suppress evidence.

LAW AND ANALYSIS

Anders Brief

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Jyles , supra , appointed counsel requests permission to withdraw as counsel of record.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, Defendant's appellate counsel has complied with the procedures for filing an Anders brief. Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that the trial court denied Defendant's pretrial motions, but Defendant did not reserve his right of review of these motions and entered unqualified pleas of guilty. Thus, counsel notes that Defendant is precluded from arguing that the trial court erred in the pretrial rulings since he has waived any pre-plea non-jurisdictional defects.

Counsel asserts that Defendant was advised of the necessary rights during the guilty plea colloquy and his answers during the colloquy indicate that a knowing and intelligent waiver of his rights occurred. She states that Defendant acknowledged he understood what constituted the crime of obstruction of justice, and the trial court explained to him that it was illegal for a person previously convicted of certain crimes to carry a weapon. Counsel avers that Defendant was advised of the sentencing ranges to the charges to which he was pleading, and he indicated that his pleas were free and voluntary. She notes that Defendant was sentenced in conformity with the plea agreement, and thus, he cannot claim his sentences are excessive. Counsel suggests that there appears to be no basis to support a claim that Defendant's pleas were constitutionally infirm.

Nevertheless, in an abundance of caution, appellate counsel requests that Defendant's convictions and sentences be set aside. In addition to her brief, appellate counsel has filed a motion to withdraw as attorney of record for Defendant on the basis that she has conducted a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court that arguably support the appeal.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or irregularities in Defendant's guilty pleas that would render them invalid. The transcript of the guilty plea proceeding and the acknowledgement and waiver of rights form show that Defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty.

In addition, the trial court correctly informed Defendant of the maximum possible penalty for obstruction of justice and the potential fine. Although Defendant was not informed of the mandatory minimum penalty he faced or the restrictions of benefits for possession of a firearm by a convicted felon, he was sufficiently advised that he faced a maximum term of imprisonment of 20 years and a maximum fine of $5,000. Even though the trial judge did not advise Defendant of the actual sentences to be imposed during the colloquy, we find that Defendant was advised of the actual sentences he would receive on both counts via the waiver of rights form, and he received those sentences for sufficient compliance with La. C.Cr.P. art. 556.1. See State v. Martin , 17-558 (La. App. 5 Cir. 3/14/18), 242 So.3d 1236 n. 4. The waiver of rights form includes handwritten notations of each of Defendant's sentences and his initials beside a provision indicating that he understood that he would receive a 20-year sentence in the Department of Corrections without benefit of probation, parole, or suspension of sentence for his conviction of La. R.S. 14:95.1 and 20 years in the Department of Corrections for his conviction of La. R.S. 14:130.1.

Further, during the guilty plea colloquy, Defendant informed the trial court that he was satisfied with the representation of his counsel and that no one forced or threatened him into entering the guilty pleas. After the colloquy with Defendant, the trial court accepted his guilty pleas as knowingly, intelligently, freely, and voluntarily made.

With regard to Defendant's sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, Defendant's sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the pleas. Furthermore, Defendant's sentences fall within the sentencing ranges prescribed by the statute. See La. R.S. 14:34.2(B)(2) and (3).

Based on the foregoing, we find that Defendant's guilty pleas and the sentences imposed pursuant to the plea agreement do not present any issues for appeal.

Denial of Motion to Suppress

In his only pro se assignment, Defendant alleges that the trial court erred in denying his motion to suppress evidence that was illegally seized. Defendant asserts that his guilty pleas were premised upon him being able to argue the denial of his motion to suppress on appeal. He contends that his counsel vigorously argued the motion to suppress at the suppression hearing, and the evidence illegally obtained was the only evidence the State had against him. He states that during the guilty plea proceeding, he pleaded guilty because it was in his "best interest" in accordance with the language in State v. Crosby , 338 So.2d 584 (La. 1976). He asserts that, despite pleading guilty because it was in his "best interest," his appellate counsel has filed a motion to withdraw as counsel of record, which he claims was not contemplated by the plea bargain and invalidates his pleas as a result. Therefore, Defendant asserts that he be allowed to appeal the denial of his motion to suppress or the plea agreement be deemed invalid and the case remanded for further proceedings.

As previously mentioned, on August 2, 2017, the trial court heard Defendant's motion to suppress evidence and statement. On August 7, 2017, Defendant's motion to suppress evidence and statement were denied. On October 11, 2017, Defendant entered unqualified pleas of guilty to the felony charges of possession of a firearm by a convicted felon (count one) and obstruction of justice (count two), and all non-jurisdictional defects were waived. Defendant did not preserve any pretrial issues for appellate review under Crosby , supra . A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea proceedings and precludes review of such defects either by appeal or post-conviction relief. State v. Aguilar , 14-714 (La. App. 5 Cir. 1/14/15), 167 So.3d 862, 865.

During the colloquy, Defendant stated that he was pleading guilty because it was in his "best interest" to do so. However, the record does not reflect that this was a plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The "best interest" or Alford plea is one in which a defendant pleads guilty while maintaining his innocence. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1122. Although Defendant agreed that the pleas were in his "best interest," he also admitted his guilt in this matter. Further, there was no mention of Alford in the waiver of rights form or during the colloquy. Therefore, although Defendant stated during the colloquy that the pleas were in his "best interest," Defendant did not enter an Alford plea.

Nonetheless, Defendant confuses the "best interest" or Alford plea with a Crosby plea as he seeks this Court's review of the trial court's denial of the motion to suppress evidence. A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Crosby , supra ; State v. King , 99-1348 (La. App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied , 00-1824 (La. 6/29/01), 794 So.2d 822. Under Crosby , a defendant may reserve his right to appeal a prior adverse ruling of the trial court. State v. Richardson , 09-714 (La. App. 5 Cir. 2/9/10), 33 So.3d 903, 906, writ denied , 10-0526 (La. 10/15/10), 45 So.3d 1109.

In State v. Runnels , 15-172 (La. App. 5 Cir. 12/23/15), 182 So.3d 1245, 1251-52, the defendant argued on appeal that his statements should have been suppressed after entering an unqualified guilty plea. Upon review of the record, this Court found that the signed waiver of rights form and the colloquy with the trial court were void of any suggestion that the guilty plea was made subject to the reservation of appellate review of the trial court's denial of the defendant's motion to suppress his statements. This Court noted that a defendant's failure to reserve the right to appeal under Crosby , supra , at the time he entered his guilty plea, precluded his right to appeal the trial court's ruling on a motion to suppress. This Court held that the defendant did not tender his guilty plea pursuant to Crosby , supra , and therefore, he waived his right to appellate review of the trial court's denial of his motion to suppress statements.

Accordingly, we find, as in Runnels , Defendant in this matter entered unqualified pleas of guilty, and the record is devoid of any mention, including in the signed waiver of rights form or the transcript of the guilty plea colloquy, that Defendant sought to enter his pleas under Crosby , supra , at the time he entered them. Consequently, we find that Defendant's failure to reserve the right to appeal the denial of his motion to suppress evidence under Crosby , supra , at the time he entered his guilty pleas has precluded his right to appeal the trial court's ruling. See Runnels , supra .

Errors Patent Review

Defendant requests an error patent review; however, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990), regardless of whether Defendant makes such a request.

The State of Louisiana Uniform Commitment Order (UCO) incorrectly reflects the dates of Defendant's offense on count one as "7/21/2016, 07/26/2016." However, the bill of information reflects the offense date of count one was on or between July 21, 2016 and July 26, 2016, and Defendant pleaded guilty as charged. Further, the sentencing transcript indicates that the trial court imposed Defendant's sentences in this case to run concurrent with his sentences in district court case numbers 16-6804 and 17-2694, but the UCO and the minute entry/commitment only mention that "each count" was to be served concurrently.

It has been the practice of this Court to remand a case for correction of the UCO in its error patent review when the UCO is inconsistent with the minute entry and transcript. State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Accordingly, we remand this matter for correction of the UCO error regarding the range of offense dates with respect to count one and the concurrent nature of Defendant's sentences in this instant matter and district court numbers 16-6804 and 17-2694. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Kelly , 17-442 (La. App. 5 Cir. 2/21/18), 239 So.3d 432, 448.

DECREE

For the foregoing reasons, we affirm Defendant's sentences and convictions. We grant appellate counsel's motion to withdraw. We also remand this matter with instructions for correction of the UCO pursuant to the errors patent discussion above.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      The bill of information alleged that Defendant had three prior convictions of possession of cocaine.

      On the same date, Defendant also pleaded guilty to a misdemeanor charge of battery of a police officer in district court case number 17-2694 and misdemeanor possession of marijuana in district court case number 16-6804. Defendant did not seek review of these misdemeanor convictions or sentences; thus, those convictions will not be reviewed by this Court.

      This Court has held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.

      The trial court additionally sentenced Defendant to a $500.00 fine on each count plus court costs. On November 29, 2017, the trial court issued a nunc pro tunc hard labor commitment removing the $500 fines on both counts. Also, the trial court recommended Defendant to drug treatment and any self-help programs suitable to him during his incarceration.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      La. R.S. 14:130.1 does not set forth a mandatory minimum penalty. Rather, La. R.S. 14:130.1(B)(1) provides that the offender "shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both."

      La. R.S. 14:95.1(B) provides that an offender "shall be imprisoned at hard labor for not less than ten years nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars."

      Absent specification of the specific adverse ruling, the Louisiana Supreme Court has held that an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which go to the heart of the prosecution's case, such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. State v. Joseph , 03-315 (La. 5/16/03), 847 So.2d 1196 (per curiam ); State v. Sierra , 11-161 (La. App. 5 Cir. 12/28/11), 83 So.3d 239, 244.