author: Judge Terri F. Love

text:
    Luis MUSA v. Shelley Audette MUSA and Bernadette R. Lee
    NO. 2018-C-1066
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2019
    Nancy J. Marshall, Andrew J. Baer, DEUTSCH KERRIGAN, L.L.P., 755 Magazine Street, New Orleans, LA 70130 COUNSEL FOR DEFENDANT/RELATOR, BERNADETTE R. LEE
    Vincent J. Booth, BOOTH & BOOTH, APLC, 138 North Cortez Street, New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/RESPONDENT, LUIS MUSA
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
   Judge Terri F. Love

This application for supervisory review arose from divorce proceedings. The husband filed suit against his estranged wife's lawyer contending that she intentionally coerced his estranged wife into breaching an agreement to sell community property. The attorney filed an exception of no cause of action, which the trial court denied. We find that the trial court erred by denying the exception of no cause of action and remand for amendment. The writ is granted in part, denied in part, and remanded.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Respondent, Luis Musa, filed a petition for damages in which he named as defendants: Shelley Musa (Mr. Musa's estranged wife) and Bernadette Lee, (relator and Ms. Musa's divorce attorney). In the petition for damages, Mr. Musa alleged that Attorney Lee wrongfully filed a notice of lis pendens and induced Ms. Musa to breach an agreement to sell property (the "Derby Place property") that belonged to the community of acquets and gains existing between Mr. Musa and Ms. Musa. Mr. Musa alleged that, as a result of Attorney Lee's legal advice, despite having previously entered into the agreement to sell, Ms. Musa refused to execute the act of sale to transfer the Derby Place property to a third party buyer on the date of the closing.

Attorney Lee filed an exception of no cause of action, contending that the claims set forth in Mr. Musa's petition were premised on her actions as counsel for Ms. Musa. Attorney Lee asserted that Louisiana law does not recognize a cause of action against adversarial counsel under the facts alleged in his petition for damages. Mr. Musa opposed the exception, arguing that Attorney Lee's actions were malicious and, thus, a cause of action was recognized under Louisiana jurisprudence. Following a hearing, the trial court rendered judgment, denying the exception.

EXCEPTION OF NO CAUSE OF ACTION

A peremptory "exception of no cause of action raises a question of law," and a court of appeal reviews the district court's ruling de novo. Ocwen Loan Servicing, LLC v. Porter , 18-0187, p. 3 (La. App. 4 Cir. 5/23/18), 248 So.3d 491, 495. "The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." La. C.C.P. art. 923. The "'focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.' " Hershberger v. LKM Chinese, L.L.C. , 14-1079, p. 3 (La. App. 4 Cir. 5/20/15), 172 So.3d 140, 143 (quoting Badeaux v. Southwest Computer Bureau, Inc. , 05-0612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1216-17 ; Oakville Community Action Group v. Plaquemines Parish Council , 05-1501, p. 4 (La. App. 4 Cir. 9/27/06), 942 So.2d 1152, 1155 ).

"This Court's de novo review is limited to reviewing the four corners of the petition to determine whether on its face the petition states a cause of action." Boyd v. Cebalo , 15-1085, p. 2 (La. App. 4 Cir. 3/16/16), 191 So.3d 59, 61. We accept "all well-pleaded facts in the petition as true for purposes of determining the issues raised by an exception of no cause of action." Id. "The mover bears the burden of proving that the petition states no cause of action; and our de novo review does not take into consideration whether the party will be able to prevail on the merits." Id. A plaintiff may not merely state legal or factual conclusions in the petition without setting forth facts that support the conclusions. Bibbins v. City of New Orleans , 02-1510, p. 5 (La. App. 4 Cir. 5/21/03), 848 So.2d 686, 691.

"Louisiana subscribes to the traditional, majority view that an attorney does not owe a legal duty to his client's adversary when acting in his client's behalf." Montalvo v. Sondes , 93-2813 (La. 5/23/94), 637 So.2d 127, 130. "A non-client, therefore, cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation." Id. , 93-2813, p. 4, 637 So.2d at 130. The Supreme Court recognized in Montalvo v. Sondes that the intent of the rule disallowing a non-client's claim against his adversary's attorney for negligence or malpractice was "to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client." Id. The Supreme Court clarified, however, that while an attorney acting on behalf of his client may not be sued by his client's adversary for negligence or malpractice, a cause of action may exist against an attorney for his intentional tortious conduct. Id. The Supreme Court explained that:

... the mere filing of a lawsuit, even if the suit appears meritless on its face, is not enough, since the attorney may be simply the instrument through which the client invokes judicial determination. Rather, we believe it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit.

Id. (internal citation omitted).

The Montalvo Court found that the "petition will not state a cause of action if it alleges only negligence or malpractice on the part of [new counsel]; rather, the facts in his petition must establish that [new counsel] intended to cause direct harm to [plaintiff] by filing the malpractice petition on [the client's] behalf." Id. , 93-2813, p. 5, 637 So.2d at 130. The Supreme Court further determined that the allegations that the malpractice suit was "frivolous" and that new counsel instigated and continued the malpractice suit in "bad faith" were mere conclusions unsupported by facts. Id. , 93-2813, p. 6, 637 So.2d at 131. The Montalvo Court stated that:

[r]educed to its essentials, [plaintiff's] petition simply alleges that [new counsel] failed to apprise themselves of the status of the appeal or the Virginia consent judgment prior to filing or continuing the malpractice suit, and making certain allegations in their petition that were no longer true in light of these proceedings. At best, these actions might be considered negligent, but they fall far short of manifesting an intent on the part of [new counsel] to cause direct harm to [plaintiff]. Since the facts alleged in the petition are not sufficient to give rise to an intentional tort, the trial court erred in failing to sustain the exception of no cause of action.

Id. , 93-2813, pp. 6-7, 637 So.2d at 131.

In the matter before us, the petition sets forth two "counts" against relator: (1) "wrongful filing of lis pendens "; and (2) "tortious interference with contract."

Lis Pendens

Mr. Musa averred in his petition that Attorney Lee improperly filed a notice of lis pendens in both St. Tammany Parish and Orleans Parish. Mr. Musa indicated the notice of lis pendens filed in St. Tammany Parish was improper because it identified property located in Orleans Parish-the Derby Place property-but not property located in St. Tammany Parish. Mr. Musa also claimed that the notice of lis pendens filed in Orleans Parish incorrectly stated Ms. Musa had rights in the Derby Place property. Mr. Musa asserted that Attorney Lee knew that Ms. Musa had entered into an agreement to divest herself of any rights to the Derby Place property. Further, Mr. Musa alleged that Attorney Lee knew or should have known that the Derby Place property was subject to a security agreement, and that, as a result, the community existing between Ms. Musa and Mr. Musa possessed no equity in the property.

In Mr. Musa's opposition to the exception, he contended that La. R.S. 9:4833 provided a cause of action for damages as a result of the filing of the improper notice of lis pendens . The statute reads, in pertinent part:

A. If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of the claim or privilege to give a written request for cancellation in the manner provided by law directing the recorder of mortgages to cancel the statement of claim or privilege from his records. The request shall be delivered within ten days after a written request for it is received by the person filing the statement of claim or privilege.
B. One who, without reasonable cause, fails to deliver a written request for cancellation in proper form to cancel the claim or privilege as required by Subsection A of this Section shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be cancelled.

La. R.S. 9:4833.

Here, however, Mr. Musa did not allege that he requested that the notice of lis pendens be canceled. Further, pursuant to Montalvo , Mr. Musa was required to allege facts supporting a claim that Attorney Lee acted with malice or intent to cause him harm by filing the notice of lis pendens . The petition for damages lacks any factual allegation supporting the conclusion that the filing of the notice of lis pendens in St. Tammany Parish was done with malice or intent to cause harm to Mr. Musa.

As to the notice of lis pendens filed in Orleans Parish, Mr. Musa asserted that Attorney Lee knew that Ms. Musa had no ownership interest in the property due to the agreement to sell and that there was no equity in the property due to the security interest. Mr. Musa contended that the sales price contained in the agreement to sell would have only been sufficient to pay the amount owed to the bank.

Mr. Musa's conclusion that the agreement to sell divested Ms. Musa of her ownership interest in the property is contrary to law. "Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law." La. C.C. art. 477. To transfer ownership of an immovable such as the Derby Place property, the owner and transferee would need to enter into a contract that purports to transfer ownership. La. C.C. art. 517.

In the petition for damages, Mr. Musa asserted that Ms. Musa breached the agreement to sell by failing and refusing to execute the act of sale transferring the Derby Place property to the buyer. Jurisprudence has established that "an agreement to sell is not a sale where the execution of a later final act of sale is contemplated by the parties." Delapaz v. Monem , 01-1234, p. 4 (La. App. 5 Cir. 2/26/02), 811 So.2d 1062, 1065. Accepting the claim in the petition that Ms. Musa breached the agreement to sell by failing to execute an act of sale as true, the agreement to sell was not a contract of sale purporting to transfer ownership, as the agreement to sell contemplated execution of a later final act of sale. Thus, Mr. Musa's allegation that Attorney Lee knew that Ms. Musa had no ownership interest in the property due to the agreement to sell is without merit.

Likewise, there is no factual support for the assertion that Attorney Lee knew that there was no equity in the Derby Place property or that Attorney Lee knew that the sales proceeds would only satisfy the amount owed to the bank. Even taking these allegations as true, the petition contains no other factual allegations to support the assertion that Attorney Lee's filing the notice of lis pendens on behalf of her client was done with malice or an intent to cause direct harm to Mr. Musa. In the absence of facts showing specific malice or an intent to harm on the part of Attorney Lee, Mr. Musa has not stated a cause of action upon which he may be granted relief.

Tortious Interference with a Contract

Mr. Musa alleged that Attorney Lee, through her legal advice, induced Ms. Musa to breach the agreement to sell. He asserted that Attorney Lee's actions were deliberate and malicious because Attorney Lee was aware that Ms. Musa entered into an agreement to sell the Derby Place property. Mr. Musa alleged that Attorney Lee had a duty to refrain from intentionally causing Ms. Musa to breach the agreement. Mr. Musa contended that the tort of intentional interference with a contract should be extended to the facts of this case to hold Attorney Lee liable for damages because she used her legal skill and knowledge to induce Ms. Musa to breach the agreement to sell. Mr. Musa concluded that Attorney Lee lacked reasonable justification for inducing Ms. Musa to breach the agreement to sell, as Ms. Musa was not entitled to any financial benefit from the sale.

The Supreme Court has found that a limited cause of action exists against a corporate officer for tortious interference with a contract. 9 to 5 Fashions, Inc. v. Spurney , 538 So.2d 228, 234 (La. 1989). Further, this Court held that "based on the jurisprudence, it is clear that before an action for tortious interference with a contract will be permitted, the plaintiff must identify a duty existing between it and the alleged tortfeasor, the violation of which would give rise to delictual liability." Taxicab Ins. Store, L.L.C. v. Am. Serv. Ins. Co., Inc. , 17-0004, p. 9 (La. App. 4 Cir. 7/12/17), 224 So.3d 451, 459-60.

In the petition for damages, Mr. Musa merely stated Attorney Lee's alleged duty to "refrain from intentionally causing Shelley Musa to breach the contract of sale." However, Mr. Musa has not alleged any duty owed by Attorney Lee to him. As the Montalvo Court indicated, an attorney does not generally owe a duty to his client's adversary. 93-2813, pp. 3-4, 637 So.2d at 130. Rather, an attorney may be liable for his intentional tortious conduct. Id. , 93-2813, p. 4, 637 So.2d at 130. To prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client, the petition must allege facts showing specific malice or an intent to harm on the part of the attorney. Id.

In the present matter, the petition does not allege facts showing specific malice or an intent to harm by Attorney Lee. The petition merely states that Attorney Lee was malicious. Further, the petition concludes that Attorney Lee induced Ms. Musa to breach the agreement to sell the Derby Place property without alleging any facts in support of the conclusion. These allegations are insufficient to invoke the tort of intentional interference with a contract and cannot defeat an exception of no cause of action.

Accordingly, after our de novo review, we find that the trial court erred in overruling the exception of no cause of action. We, therefore, grant the writ in part and reverse the judgment of the trial court denying Attorney Lee's exception of no cause of action.

AMENDMENT

"When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." La. C.C.P. art. 934. "Indeed, it is mandatory that the trial judge permit an amendment of the pleadings when there is a conceivable possibility that a cause of action may yet be stated by a plaintiff." Cooper v. Pub. Belt R.R. , 00-0378, p. 4 (La. App. 4 Cir. 12/20/00), 776 So.2d 639, 641. As such, and without commenting on Mr. Musa's likelihood of prevailing on his petition, the ground of the exception may be removed by alleging facts showing specific malice or an intent to harm by Attorney Lee. Therefore, we remand the matter to the trial court to permit Mr. Musa to amend his petition to state a cause of action.

DECREE

For the above-mentioned reasons, we find that the trial court erroneously overruled Attorney Lee's exception of no cause of action because Mr. Musa's petition failed to state a cause of action. However, Mr. Musa is entitled to amend his petition. Therefore, the matter is remanded for amendment. The writ is granted in part, denied in part, and remanded for further proceedings consistent with this opinion.

WRIT GRANTED IN PART; DENIED IN PART; REMANDED

BELSOME, J., DISSENTS IN PART AND CONCURS IN PART LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

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

I would deny the writ.

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part. I concur in the majority's conclusion that the district court erred in overruling Attorney Lee's exception of no cause of action. I dissent, however, from the majority's decree remanding this case to the district court and permitting Mr. Musa to amend his petition. I find that amendment of the petition would be futile, and I would dismiss Mr. Musa's claims against Attorney Lee.

The majority correctly cites to La. C.C.P. art. 934 for its holding that a district court must permit a litigant to amend a petition when the grounds for sustaining the exception can be removed. Nevertheless, "if the grounds of the objection raised through the exception cannot be so removed, ... the action ... shall be dismissed." La. C.C.P. art. 934. A plaintiff's right to amend his petition, to remove the grounds for an exception of no cause of action, "is not so absolute as to be permitted when an amendment would constitute a vain and useless act." Fasullo v. Finley , 2000-2659, pp. 10-11 (La. App. 4 Cir. 2/21/01), 782 So.2d 76, 84 (citing Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corp. , 99-0731 (La. App. 4 Cir. 11/10/99), 746 So.2d 806 ). "For an amendment to be allowed there should be some indication that the defective petition can be amended to state a lawful cause of action." Id. In other words, "the right to amend a petition is qualified by the restriction that the objections be curable." Vance v. Fed. Nat'l Mortg. Ass'n , 2017-219, p. 9 (La. App. 5 Cir. 12/20/17), 235 So.3d 1263, 1270, writ denied , 2018-0117 (La. 3/9/18), 237 So.3d 524.

Regarding the claim of tortious interference with a contract, Mr. Musa admits that Attorney Lee is not a corporate officer, and merely urges that this Court make new law to substantiate a cause of action. C.f., 9 to 5 Fashions, Inc. v. Spurney , 538 So.2d 228, 234 (La. 1989). No new alleged facts would cure his allegations concerning this claim.

With respect to the claim of improper lis pendens , as the majority acknowledges, Mr. Musa's contention, that the agreement to sell divested Ms. Musa of her ownership interest in the Derby Place property, is contrary to law. See Delapaz v. Monem , 2001-1234, p. 4 (La. App. 5 Cir. 2/26/02), 811 So.2d 1062, 1065 ("an agreement to sell is not a sale where the execution of a later final act of sale is contemplated by the parties").

Louisiana law does not recognize a claim against an adversarial attorney except in extremely limited circumstances, none of which exist in this matter. According to the standard set forth by the Supreme Court, the facts in Mr. Musa's petition must establish that Attorney Lee intended to cause direct harm to Mr. Musa by filing the pleadings on Ms. Musa's behalf. See Montalvo v. Sondes , 93-2813 La. 5/23/94, 637 So.2d 127, 131. Mr. Musa's claims are that, in her role as opposing counsel, Attorney Lee (1) gave her client legal advice, which her client followed, and (2) filed pleadings, which were allegedly incorrect and frivolous. Mr. Musa's allegations do not state an actionable claim against opposing counsel under the law of this State. Mr. Musa's mere contentions that Attorney Lee's actions as counsel for his estranged wife were "deliberate," "intentional," and "malicious" are insufficient as a matter of law. See Montalvo , 93-2813, pp. 6-7, 637 So.2d at 131.

In opposing Attorney Lee's exception, Mr. Musa has not identified any new facts he would plead if granted leave to amend his petition. Likewise, under the circumstances of this case, I can conceive of no facts Mr. Musa could plead if given an opportunity to cure his petition. Thus, I do not find that Mr. Musa can successfully remove the grounds for this exception. Amendment of the petition would be a vain and useless act. Mr. Musa's claims against Attorney Lee should be dismissed as a matter of law without further opportunity to amend his petition for damages. See, e.g., Montalvo , 93-2813, pp. 7-8, 637 So.2d at 132 ; Vance , 2017-219, p. 9, 235 So.3d at 1270 ; Brookewood Investments Co. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. , 2007-0050, pp. 1-2 (La. App. 4 Cir. 5/16/07), 958 So.2d 1200, 1201 ; Ezell v. Dyess , 2002-0878, p. 1 (La. App. 4 Cir. 10/23/02), 831 So.2d 369, 370.

For these reasons, I would not remand this matter for amendment of the petition for damages, and I dissent from the majority on this issue. Accordingly, I would grant the writ, reverse the district's judgment denying Attorney Lee's exception, and dismiss Mr. Musa's claims against Attorney Lee.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    Sharon JOHNSON, Plaintiff-Appellant v. LOWE'S HOME CENTERS, LLC and ABC Insurance Company, Defendants-Appellees
    No. 52,602-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019.
    ERNEST GILLIAM, III, Counsel for Appellant
    SHARON JOHNSON, In Proper Person
    TAYLOR, WELLONS, POLITZ & DUHE, APLC, By: Chris W. Caswell, Baton Rouge, Counsel for Appellees
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   STEPHENS, J.

Sharon Johnson, plaintiff, appeals a judgment granting a motion for summary judgment filed by Lowe's Home Centers, L.L.C. ("Lowe's") and dismissing all claims by Johnson with prejudice. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

In Johnson's petition, filed on April 25, 2017, Johnson alleged that her injuries were caused by the negligence of Lowe's and/or its employee. According to Johnson, Lowe's negligence was the proximate cause of her injuries and she has suffered substantial damage as a result. The specific facts set forth here are from Johnson's petition against Lowe's.

Johnson alleged that on May 4, 2016, she purchased a spark plug for her lawn mower from a Lowe's store located in Shreveport, Louisiana. According to Johnson, she was unsure of the precise spark plug she needed for her Briggs & Stratton Poulan Pro 450 lawn mower, so she asked a Lowe's sale associate for assistance. Johnson claimed that the associate researched the spark plug she needed for her mower, which she purchased; afterward, Johnson returned home and installed the part. Upon attempting to start her mower, Johnson claimed she pulled the cord with her right hand/arm, and the cable "jerked violently." The crank handle struck Johnson "violently" on her left arm, near the middle of the inside of her forearm. As a result, Johnson contended she experienced pain which "shot up [her] back into her neck and radiated down the right side of her body." When Johnson went to bed that night, her hands went numb, something she had never experienced before. Johnson claimed she went to her physician for the hand numbness, who advised "the injury made her preexisting and intermittent carpal tunnel syndrome systematic."

Lowe's answered Johnson's petition, denying all allegations made therein, and responded with several defenses, including the defense that Johnson's injuries were caused by her own negligence.

Ultimately, Lowe's filed a motion for summary judgment and attached, in support, excerpts from Johnson's deposition transcript and the affidavit of Stephen Cook, the equipment mechanic retained by Johnson. In its motion, Lowe's maintained that Johnson had failed to produce any evidence to establish Lowe's liability in this case, and there were no genuine issues of material fact. Specifically, Lowe's argued that since Johnson could not prove an essential element in the duty/risk analysis (i.e. , cause-in-fact), Lowe's was entitled to summary judgment.

After a hearing on the matter, the trial court granted Lowe's motion for summary judgment. This appeal by Johnson ensued.

DISCUSSION

On appeal, Johnson appears in proper person and contends, "MY STATEMENT OF THE CASE IS THERE ARE A LOT OF ERRORS!" She emphasizes that a genuine issue of material fact exists as to whether Lowe's sold her the incorrect spark plug which may have subsequently been the cause of her injury. Lowe's responds that Johnson has presented no evidence to support her burden of proof-she offered no proof that her alleged injuries were caused by any alleged negligence by Lowe's. Therefore, Lowe's submits that the entire record reflects there are no genuine issues as to material fact, and it was entitled to judgment as a matter of law. As pointed out by Lowe's, under Louisiana's duty-risk analysis, Johnson would have the burden of proving five essential elements: duty, breach, cause-in-fact, legal cause, and damages. Lowe's claims that Johnson fails to prove that its action was cause-in-fact of her alleged damages. We agree.

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So.3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So.3d 219.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Bank of New York Mellon v. Smith , 2015-0530 (La. 10/14/15), 180 So.3d 1238. Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

As stated in La. C.C.P. art. 966(D)(1) :

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Liability for negligence is determined by applying the duty/risk analysis. Bufkin v. Felipe's La., LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851 ; James v. Eldorado Casino Shreveport Joint Venture , 51,707 (La. App. 2 Cir. 11/15/17), 245 So.3d 264, writ denied , 2017-2091 (La. 2/9/18), 236 So.3d 1266. The plaintiff must prove the defendant's conduct was the cause-in-fact of his harm, the defendant owed a duty of care, the defendant breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Bufkin, supra ; James, supra. Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. James, supra at 268.

Here, the summary judgment evidence, viewed de novo , does not establish, as a matter of law, that Lowe's conduct was the cause-in-fact of Johnson's alleged injury. Primarily, Lowe's relies on Johnson's own allegations regarding that incident, which notably are based on nothing more than pure speculation. In her deposition she described the spark plug as "funny looking" and "different." However, despite that observation, Johnson "put it in [the lawn mower] anyway." When specifically asked whether the spark plug affected the mower's pull start to injure her, Johnson could only answer: "I think it's the spark plug.... Well, from the looks, yeah." Further, she expressed the following:

Q: And it was your I guess interpretation at the time that it was due to the wrong spark plug. Right?
Johnson: Yes.
Q: And that is only based on the way it looked at that time. Correct? ... At that time. Right?
Johnson: Well, that the only assumption I had right then.
Q: So you assume because it looked different that the spark plug was the wrong spark plug and that it caused this jolting of the pull start. Right?
Johnson: Yes.
* * * *
Q: And at that point in time, it was your assumption that that event occurred because of the spark plug.
Johnson: Right.
Q: And you base that assumption off of the way the spark plug looked. Correct?
Johnson: Well, basically, that and because of the way it reacted.
* * * *
Q: And your only assumption is based on the way that the spark plug looked is what I'm saying.
Johnson: Well, I think it was the wrong spark plug.
Q: And you think it was the wrong spark plug because of the way it looked. Correct?
Johnson: Yes.

Lowe's also looks to the affidavit of Stephen Cook, the equipment mechanic expert utilized by Johnson for the inspection of her lawn mower. Cook averred to be a mechanic with six years of experience. He stated that upon inspection of Johnson's lawn mower, he noted the following defects: "a bent blade along the crankshaft; ... lack of oil; ... a broken operator presence (OPC) cable; and ... a sheared fly wheel key." He specifically stated that those defects could have caused the incident described by Johnson. More importantly, he averred, "None of the above described defects were caused by or are related to the spark plug purchased from Lowe's or any other spark plug that was previously installed." Finally, he observed, "The event described by ...

Johnson that forms the basis of her lawsuit was not, and could not under any circumstances , be caused by a spark plug purchase and subsequent installation, regardless of the spark plug's compatibility." (Emphasis added.)

Clearly, considering the unrefuted evidence submitted at the trial court, Johnson lacks the factual support necessary to show that she would be able to meet the burden of proving the element of cause-in-fact at a trial. First, as articulated herein and easily seen, her allegations are not grounded in fact, but are merely speculative in nature. This court has held that mere speculation is not sufficient to defeat a motion for summary judgment. Scott v. City of Shreveport , 49,944 (La. App. 2 Cir. 6/24/15), 169 So.3d 770, writ denied , 2015-1438 (La. 10/9/15), 186 So.3d 1149 ; Slade v. State ex rel. Univ. of La. at Monroe , 46,720 (La. App. 2d Cir. 11/9/11), 79 So.3d 463 ; Church v. Shrell , 43,972 (La. App. 2d Cir. 1/21/09), 8 So.3d 70. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of genuine issue of material fact. Scott, supra ; Slade, supra . Such allegations, inferences, and speculation are insufficient to satisfy the opponent's burden of proof. Scott , supra ; Slade , supra . Although the cause-in-fact inquiry is a factual determination best made by the fact-finder, summary judgment may be appropriate when, as here, there is no evidence to show that the cause-in-fact inquiry has been met. See Scott, supra ; Slade, supra . Johnson did not produce any evidence, other than her speculative and conclusory allegations, that the alleged conduct by Lowe's was the cause-in-fact of her injury. We conclude such evidence is insufficient to support a finding that the spark plug was the cause-in-fact of her injury.

Second, Johnson's own expert conclusively stated that the spark plug could not have caused the incident she described in her petition. If the opposing party cannot produce any evidence to suggest that she will be able to meet her evidentiary burden at trial, no genuine issues of material fact exist. Here, Johnson failed to present a scintilla of evidence to oppose that of the only mechanic who inspected the lawn mower in question (notably the mechanic she procured), and no genuine issues of material fact are in dispute.

Therefore, as Johnson has failed to meet her burden of proof, we determine that there is no genuine issue of material fact concerning cause-in-fact, and Lowe's is entitled to judgment as a matter of law. Accordingly, the trial court was correct in granting the motion for summary judgment, and Johnson's arguments on appeal are without merit.

CONCLUSION

For the foregoing reasons, the trial court's judgment in favor of Lowe's Home Centers, L.L.C. is affirmed. All costs of this appeal are assessed to Sharon Johnson.

AFFIRMED.

      Johnson was represented by legal counsel at the trial court.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Ollandis Derrell TURNER, Appellant
    No. 52,510-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019.
    LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, New Orleans, Counsel for Appellant
    ROBERT S. TEW, District Attorney, MICHELLE ANDERSON THOMPSON, Assistant District Attorney, Counsel for Appellee
    Before PITMAN, GARRETT, and McCALLUM, JJ.
   GARRETT, J.

The defendant, Ollandis Derrell Turner, was convicted by a jury of armed robbery. He was ordered to serve 60 years at hard labor, without benefit of parole, probation, or suspension of sentence. On appeal, Turner seeks to have his conviction overturned, arguing that the evidence was insufficient to support his conviction, his trial counsel was ineffective, and the prosecutor made improper remarks during closing arguments. For the following reasons, we affirm the conviction and sentence.

FACTS

On August 12, 2016, shortly before 11:00 p.m., Blanton Burgess, a college student working part-time as a pizza delivery driver for Domino's Pizza, was delivering six pizzas to a room at the Motel 6 in Monroe, Louisiana. There was no answer when he knocked on the door. He called the telephone number from which the order had been placed. A man answered and said he was in the motel lobby, but would come to the room.

Burgess was approached by an African-American man. Burgess saw the man reach behind him and thought he was retrieving his wallet to pay for the pizzas. Instead, the man produced a revolver and took the pizzas, Burgess's cell phone, and $ 15.00 in cash. Burgess went back to Domino's and police were called.

The serial number of the cell phone was furnished to police. The next day, August 13, 2016, Turner sold the cell phone at an ecoATM kiosk at a Walmart store in Monroe. He was photographed and furnished his Louisiana photo identification card during the transaction. Using the serial number, the police recovered the phone and the sale was linked to Turner. Burgess was shown a photo lineup and picked Turner's picture as the individual who robbed him.

Turner was arrested and charged with one count of armed robbery. He was tried by a jury and convicted as charged on June 15, 2017. Turner was sentenced to serve 60 years at hard labor without benefit of parole, probation, or suspension of sentence. He was also ordered to pay restitution to Domino's in the amount of $ 58.21. No motions for new trial, post verdict judgment of acquittal, or appeal were filed. Turner filed a pro se application for post conviction relief ("PCR"), seeking an out-of-time appeal, which was granted by the trial court on May 31, 2018. Counsel was appointed to represent Turner on appeal. Turner also filed his own pro se brief on appeal.

SUFFICIENCY OF THE EVIDENCE

On appeal, Turner's appellate counsel argues that there is insufficient evidence to support his conviction for armed robbery because the prosecution failed to negate any reasonable probability of misidentification. This argument is without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297 ; State v. Robinson , supra . The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Robinson , supra . Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Wooten , 51,738 (La. App. 2 Cir. 2/13/18), 244 So.3d 1216. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , supra .

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Walker , 51,217 (La. App. 2 Cir. 5/17/17), 221 So.3d 951, writ denied , 2017-1101 (La. 6/1/18), 243 So.3d 1064.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Robinson , supra ; State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So. 2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , supra ; State v. Sims , 49,682 (La. App. 2 Cir. 2/27/15), 162 So.3d 595, writ denied , 2015-0602 (La. 2/5/16), 186 So.3d 1161. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson , supra ; State v. Gullette , 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753 ;

State v. Burd , 40,480 (La. App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied , 2006-1083 (La. 11/9/06), 941 So.2d 35.

La. R.S. 14:64 provides:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from the person or in the immediate control of another (4) by the use or force of intimidation (5) while armed with a dangerous weapon. State v. Robinson , supra ; State v. Nealon , 50,089 (La. App. 2 Cir. 9/30/15), 179 So.3d 661, writ denied , 2015-1964 (La. 10/28/16), 208 So.3d 375 ; State v. Jackson , 50,400 (La. App. 2 Cir. 2/24/16), 189 So.3d 1150.

When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes , 2005-0992 (La. 11/29/06), 943 So.2d 1047 ; State v. Robinson , supra ; State v. Clark , 50,137 (La. App. 2 Cir. 9/30/15), 181 So.3d 150, writ denied , 2015-2049 (La. 11/29/16), 211 So.3d 386. See also State v. Jackson , supra .

In seeking to suppress an identification, the defendant must prove the procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. La. C. Cr. P. art. 703(D) ; State v. Martin , 595 So.2d 592 (La. 1992) ; State v. Stokes , 36,212 (La. App. 2 Cir. 9/18/02), 828 So.2d 631, writ denied , 2002-2807 (La. 9/5/03), 852 So.2d 1023 ; State v. Davis , 27,961 (La. App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied , 97-0383 (La. 10/31/97), 703 So.2d 12.

The Louisiana Supreme Court has held that, even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Williams , 375 So.2d 364 (La. 1979) ; State v. Davis , supra ; State v. Doucette , 2017-0501 (La. App. 4 Cir. 5/23/18), 243 So.3d 704. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy , 95-0899 (La. App. 4 Cir. 1/31/96), 669 So.2d 517, writ denied , 96-0388 (La. 9/13/96), 679 So.2d 102. If a suggestive identification procedure has been proved, a reviewing court must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification at trial. State v. Martin , supra ; State v. Doucette , supra .

The U.S. Supreme Court has approved several factors for evaluating whether the reliability of an identification may outweigh the suggestiveness of the procedures employed. See Manson v. Brathwaite , supra ; Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the victim's prior description of the criminal, (4)

the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. See State v. Martin , supra .

An identification process is suggestive if it unduly focuses a witness's attention on the suspect. State v. Hopkins , 39,258 (La. App. 2 Cir. 3/2/05), 897 So.2d 854, writ denied , 2005-1238 (La. 12/16/05), 917 So.2d 1107. For example, distinguishing marks on the photos may single out the accused, or suggestiveness can arise if sufficient resemblance of physical characteristics and features does not reasonably test identification. State v. Davis , supra ; State v. Tucker , 591 So.2d 1208 (La. App. 2 Cir. 1991), writ denied , 594 So.2d 1317 (La. 1992).

Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. The question for a reviewing court is whether the procedure is so conducive to irreparable misidentification that due process was denied. Manson v. Brathwaite , supra ; State v. Hopkins , supra .

Discussion

Burgess testified that, in 2016, he was a student at Louisiana Tech University and worked as a pizza delivery driver for Domino's Pizza. Before he was hired, he was shown a training video in which employees were instructed that, if they were ever robbed, they were to cooperate and give the robber what he asked for. Drivers were not allowed to carry more than $ 20 on their person in case of a robbery.

Upon receiving an order, the driver boxed it up, put it in a pizza bag, and received a tag with the phone number and address of the person who placed the order. Burgess stated that the tag did not always have the name of the customer. On August 12, 2016, Burgess was working the night shift at Domino's. He was assigned to make a delivery of six pizzas to Room 258 of the Motel 6 at around 10:30 p.m. Because pizza deliveries were running behind, he had earlier called the telephone number associated with the order to inform the customer that the delivery would be delayed. He spoke with a man.

Burgess was familiar with the motel because he frequently made pizza deliveries there. The room was on the second floor at the back of the motel, facing away from the highway. Burgess said he had never made a delivery to that area of the motel before. Burgess stated that the lights in the parking lot illuminated the area. When Burgess finally arrived at the motel with the pizza, he knocked on the door of Room 258, but received no answer. He again called the telephone number and spoke to the same man. The man said he had gone to the motel lobby, but he would come and get the pizzas. A man approached on the second floor walkway of the motel and Burgess walked up the stairs to meet him. The man sounded the same as the voice on the telephone. Burgess told the man the amount due for the pizzas. The man appeared to be reaching behind him for his wallet but instead, he pulled out a snub-nosed stainless steel revolver with a wooden black or brown handle. He pointed the gun at Burgess's chest and stomach. The man ordered Burgess to take out all of his belongings and place them on top of the pizza bag on the ground. Burgess placed his cash and cell phone on the pizza bag and opened his wallet to show the man that it was empty. The man instructed Burgess to take the password lock off the phone. Burgess complied. The man took the phone, the money and the pizzas and gave Burgess's wallet back to him. He told Burgess to leave and said he would be watching, so to "not try anything funny."

Burgess got into his vehicle, drove back to Domino's, and called the police. He described the robber to the police and told officers that he was an African-American male between six feet and six feet three inches tall. Burgess testified that he was shown a photographic lineup about 2½ weeks after the robbery. The police told Burgess to "pick out if I saw someone that looked familiar." He was told that if he did not see anyone familiar, not to point anyone out. Burgess said his goal was not to pick someone out, but to see if there was someone he recognized. He said he was able to identify the picture of Turner as the robber in "not even two seconds." Burgess said that there was no doubt in his mind that Turner was the man who robbed him. According to Burgess, he was not told whether he "got it right" and was not given any identifying information about the person he picked.

Burgess also identified Turner in court as the robber. Also, at the trial, Burgess was shown a picture of Turner taken the day after the robbery at the ecoATM kiosk at Walmart where Turner sold Burgess's cell phone. Burgess said the person in the picture was the same individual who robbed him and noted that the man had the same covering or "do-rag" on his head and the same amount of facial hair, but was wearing a different color shirt than he was wearing at the time of the robbery. Burgess again stated that there was no doubt that Turner was the person who robbed him.

On cross-examination, Burgess was asked about small, tear-shaped tattoos at the outer corners of Turner's eyes which were apparent on the photograph used in the photographic lineup. Burgess was asked why he did not tell police about the tattoos. Burgess said they were dark tattoos on a dark complexion that could easily be mistaken for moles or a smudge of dirt on the face. Burgess noted that the tattoos were hard to see, even in court, looking at Turner.

Burgess testified that, at the time of the robbery, he was nervous and was worried that he would be shot. Burgess said, "I did not want to die delivering a pizza." He stated that he did not take time to count the moles, freckles, or tattoos on the robber's face, but was "more worried about getting out of there alive." Burgess again testified that he had no doubt that Turner was the man who robbed him.

Detective Chris Turner of the Monroe Police Department testified that he is a crime scene investigator. This robbery occurred on a Friday night and the following Tuesday, Detective Turner went to the motel to obtain video surveillance recordings and to look for other evidence. On the video, the robber is seen pacing around the motel and, at one point, was smoking a cigarette. When Burgess arrived, the robber threw the cigarette down. Detective Turner went to the area where the cigarette was discarded and retrieved three cigarette butts. These were submitted to the North Louisiana Criminalistics Laboratory for analysis. The results from two of the cigarette butts were inconclusive and the third matched an African-American female. DetectiveTurner downloaded the video surveillance recording and it was admitted into evidence and played for the jury. Detective Turner stated that the defendant could not be positively identified from the video.

Officer Ortiz Miley of the Monroe Police Department was dispatched to investigate the armed robbery on August 12, 2016. Shortly after the robbery, he was provided with the serial number of the cell phone that was taken. The serial number was placed on the National Crime Information Computer database to alert other agencies that the phone had been stolen.

Detective Dewayne Crowder of the Monroe Police Department helped with the initial investigation of this crime. The information regarding the phone's serial number led to another database, Leads Online, where searches are made for stolen property. The ecoATM kiosk where Turner sold Burgess's cell phone uses the Leads Online database. Using the serial number, it was determined that the day after the robbery, Turner sold the cell phone at an ecoATM kiosk in Monroe. When he sold the phone, he was photographed and furnished his Louisiana identification card which was scanned. A live person monitored the kiosk to ensure that the identification furnished matched the person selling the item. Pictures of Turner at the kiosk were introduced into evidence along with a copy of his identification card.

A database called Think Stream was used to access photographs of people on file with the State of Louisiana. Based on Turner's characteristics, five photographs were chosen that closely resembled Turner to comprise the six-person photographic lineup. The lineup was shown to Burgess, who quickly identified Turner as the robber. At that point, Detective Crowder was assigned to another case and Detective Tommy Rhodes took over this investigation.

Detective Rhodes testified that he used the telephone number associated with the pizza order to search Facebook. The number was linked to a Facebook page with the name "Darrell Jones." The date of birth on the Facebook page was January 17, 1998. Detective Rhodes could not find anyone with that date of birth and opined that the name used on the page was fake. Rhodes determined that the pictures of the owner of the Facebook page and the photos of the person who sold the cell phone depicted Turner.

Turner admits that he sold Burgess's phone at the ecoATM kiosk, but he denies that he committed the robbery. His appellate counsel argues that there was no physical evidence connecting Turner to the robbery. He could not be identified from the video surveillance recording, and the cigarette butts collected and analyzed did not link him to the location of the robbery. Turner contends that Burgess's eyewitness identification was the only evidence linking the defendant to the robbery. He argues that the identification was not reliable because the photographic lineup was suggestive.

Turner contends that the lineup was suggestive because his face was larger in the frame of the photograph than the others. He claims that this unduly focused attention on him. He also asserts that the suggestive photographic lineup tainted Burgess's in-court identification of the defendant as the robber. He argues that Burgess only observed the robber for two minutes in a poorly lit parking lot and his attention was largely focused on taking the password off his cell phone. Turner points out that Burgess did not describe to the police the tattoos on Turner's face. Turner also notes that the telephone number associated with the pizza order was researched only on Faceboook; it was not linked to him by any other means.

We reject Turner's arguments. We have observed the photographic lineup shown to Burgess and do not find it to be suggestive. The individuals in the lineup all have similar complexions, hairstyles, and facial hair to Turner. The backgrounds of the pictures are the same. We do not find that Turner's image in the photograph was so much larger than the others that it attracted undue attention to him. The face of the individual next to Turner was almost as large as Turner's and bears a remarkable resemblance to him. We also note that Burgess was able to quickly identify Turner as the robber from the lineup. His identification was sure and unwavering. Burgess testified that it was light enough to see Turner's face and he was standing only two or three feet away from him during the robbery. The failure of Burgess to note the tattoos on Turner's face is not significant. The tattoos are small and dark. On Turner's dark complexion, they are not prominent. As Burgess testified, they could have been moles or smudges of dirt on the face. Burgess's failure to note the tattoos in his initial description of the robber to the police does not erode the credibility of his identification of Turner.

Based upon this record, we do not find that the photographic lineup was suggestive, and we conclude that there is no likelihood of misidentification. The prosecution provided ample evidence for the jury to conclude, beyond a reasonable doubt, that Turner committed this robbery. Burgess was robbed of his cell phone, money and pizzas, at gunpoint, and he conclusively identified Turner as the person who committed the robbery. The jury determined that Burgess's testimony was credible. We accord great deference to the factfinder's decision to accept Burgess's testimony. His testimony contains no internal contradictions or irreconcilable conflict with the physical evidence. Burgess testified that he observed Turner at the time of the robbery from two to three feet away. He was able to observe Turner's face, he gave an accurate description of Turner to the police, he was completely certain of his identification, and the time between the commission of the crime and Burgess's observation of the photographic lineup was only 2½ weeks. The jury found Burgess's testimony to be credible. His testimony alone is sufficient to support Turner's conviction.

We also note that Turner was in possession of Burgess's cell phone and sold it the day after the robbery. Further, the telephone number used to order the pizzas was linked to a Facebook page purporting to belong to Turner using a different name and containing pictures of Turner. While these factors alone might be insufficient to convict Turner, this circumstantial evidence lends support to Burgess's identification of Turner as the robber.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his pro se brief, Turner argues that his trial court counsel was ineffective for not filing a motion to suppress the suggestive lineup and for not objecting to this evidence at trial. These arguments are without merit.

Legal Principles

Both the Louisiana and federal constitutions guarantee a criminal defendant's right to the effective assistance of counsel. U.S. Const. art. VI; La. Const. art. 1, § 13 ; Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; State v. Brooks , 94-2438 (La. 10/16/95), 661 So.2d 1333 ; State v. Mansfield , 50,426 (La. App. 2 Cir. 2/24/16), 190 So.3d 322. When a defendant seeks reversal of a conviction based on ineffective assistance of counsel, he must establish two separate elements to succeed. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the U.S. Constitution. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland v. Washington , supra ; State v. McGee , 2018-1052 (La. 2/25/19), 264 So.3d 445 ; State v. Moran , 47,804 (La. App. 2 Cir. 4/10/13), 135 So.3d 677, writ denied , 2013-1052 (La. 11/15/13), 125 So.3d 1101 ; State v. Mansfield , supra.

An assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore , 48,769 (La. App. 2 Cir. 2/26/14), 134 So.3d 1265, writ denied , 2014-0559 (La. 10/24/14), 151 So.3d 598 ; State v. Mansfield , supra.

The filing and pursuit of pretrial motions is squarely within the ambit of the attorney's trial strategy, and counsel is not required to engage in efforts of futility. State v. Lewis , 51,672 (La. App. 2 Cir. 11/15/17), 245 So.3d 233 ; State v. Anderson , 51,603 (La. App. 2 Cir. 9/27/17), 244 So.3d 640, writ denied , 2017-1913 (La. 6/1/18), 243 So.3d 1062.

Generally, a claim of ineffective assistance of counsel is properly raised in an application for PCR in the trial court. State ex rel. Bailey v. City of West Monroe , 418 So.2d 570 (La. 1982) ; State v. Lewis , supra ; State v. Mansfield , supra ; State v. Ellis , 42,520 (La. App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied , 2007-2190 (La. 4/4/08), 978 So.2d 325. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Mansfield , supra. When the record is sufficient, the claim may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff , 416 So.2d 528 (La. 1982) ; State v. Lewis , supra ; State v. Mansfield , supra.

Discussion

The record in this matter is sufficient to resolve Turner's claim on appeal. He argues that, before his trial, attorney James Ross was appointed to represent him. Turner claims that Ross was dismissed for "no explained reason" and David Summersgill was appointed to the case days before the trial. He asserts that Summersgill had no time to prepare for trial or make any pretrial investigations or motions. He contends that the failure of his trial counsel to file a motion to suppress the photographic lineup or to object to its use at trial constituted ineffective assistance of counsel. These arguments simply are not supported by the record.

The trial court minutes show that Turner's initial court appearance occurred on August 31, 2016, at which time the Public Defender's Office was appointed to represent him. Turner appeared in court on October 11, 2016, represented by Summersgill, and Ross was enrolled as counsel of record. However, the minutes fail to show that Ross ever appeared on behalf of Turner. At the next appearance on November 16, 2016, and at all subsequent appearances thereafter, with the exception of the preliminary examination hearing, Summersgill appeared and represented Turner. At the preliminary examination hearing, attorney Jay Nolen appeared in Summergill's place to represent Turner.

Further, Turner's claim that the photographic lineup was unduly suggestive and deprived him of a fair trial, and that the failure to object to the lineup constituted ineffective assistance of counsel, is not supported by the record. As set forth above, the constitutional guarantee of effective assistance of counsel does not require an attorney to take unnecessary actions or engage in efforts of futility. A criminal defendant who alleges that his attorney's performance was deficient based upon his failure to perform specific acts must demonstrate that specific prejudice resulted from this failure. State v. Johnson , supra . Above, we considered the arguments regarding misidentification and the photographic lineup, even though there was no motion to suppress and no objection at trial. The photographic lineup was not suggestive. There was no error in presenting the lineup at trial, and Burgess's eyewitness identification was not tainted. Turner has not demonstrated any prejudice and has not shown a reasonable probability that, but for counsel's failure to file a motion to suppress, the result of the trial would have been different. Based upon our finding regarding the photographic lineup, we reject Turner's claim of ineffective assistance of counsel. See State v. Johnson , supra ; State v. Moore , supra .

CLOSING ARGUMENT

Turner argues in his pro se brief that the prosecutor violated due process by making improper remarks in closing argument that appealed to the jury's passions and prejudices. This argument is without merit.

Legal Principles

La. C. Cr. P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state's rebuttal shall be confined to answering the argument of the defendant.

A prosecutor retains considerable latitude in making closing arguments. State v. Taylor , 93-2201 (La. 2/28/96), 669 So.2d 364, cert. denied , 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996) ; State v. Smith , 31,955 (La. App. 2 Cir. 5/5/99), 740 So.2d 675, writ denied , 2000-1404 (La. 2/16/01), 785 So.2d 840. The argument is not to appeal to prejudice. The Court has warned prosecutors they are not to turn closing argument into a plebiscite on crime.

State v. Eaton , 524 So.2d 1194 (La. 1988), cert . denied , 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989).

Although resort to personal experience goes beyond the proper scope of a closing argument, before a case will be reversed on this basis, it must be shown that the remarks influenced the jury and contributed to the verdict. State v. Johnson , 45,828 (La. App. 2 Cir. 1/26/11), 57 So.3d 1087, writ denied , 2011-0433 (La. 12/16/11), 76 So.3d 1198.

Even if the prosecutor exceeds these bounds, a reviewing court will not reverse a conviction due to an improper remark during closing argument unless the court is thoroughly convinced the argument influenced the jury and contributed to the verdict, as much credit should be accorded the good sense and fairmindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence. State v. Reed , 2014-1980 (La. 9/7/16), 200 So.3d 291, cert . denied , --- U.S. ----, 137 S.Ct. 787, 197 L.Ed.2d 258 (2017). See also State v. Casey , 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert . denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Hart , 96-0697 (La. 3/7/97), 691 So.2d 651 ; State v. Taylor , supra ; State v. Smith , supra ; State v. Eaton , supra ; State v. Bates , 495 So.2d 1262 (La. 1986), cert. denied , 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987) ; State v. Jarman , 445 So.2d 1184 (La. 1984) ; State v. Messer , 408 So.2d 1354 (La. 1982) ; State v. Mills , 505 So.2d 933 (La. App. 2 Cir. 1987), writ denied , 508 So.2d 65 (La. 1987).

The contemporaneous objection rule applies to claims that the prosecutor made an improper closing argument. State v. Taylor , supra ; State v. Williams , 46,674 (La. App. 2 Cir. 12/14/11), 81 So.3d 220. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841. State v. Jones , 49,948 (La. App. 2 Cir. 9/30/15), 178 So.3d 1075.

Discussion

There was no contemporaneous objection to the state's comments during closing argument. Therefore, Turner cannot raise a claim related to those arguments on appeal. However, even if he had made such an objection, under the facts presented here, we do not find that the comments require reversal.

Turner argues that the prosecution made improper remarks in closing argument by referencing another case that was lost by the prosecution and contrasted "the jurors' sense of community safety with the defendant's armed robbery." In his pro se brief, Turner objected to the following statement by the prosecution:

I wanted to ask (that jury) what about the public that the defendant was going to return to out in the world. There [sic] safety's at risk too.

Turner claims these comments interjected issues having no bearing on his guilt or innocence and improperly appealed to the jury to act in ways other than as dispassionate arbiters of the facts. Turner urges that the case against him was not strong and depended on a credibility determination. He maintains that the prosecutor implied that the jury would be violating its oath if they failed to convict. According to Turner, the prosecutor's comments aroused the jury's passions and prejudices against him and caused the jury to decide the case on the basis of extraneous considerations.

The complete transcript of the comments complained of reads as follows:

Judge Manning will give you instruction. And I want to remind each of you swore an oath, swore an oath to follow the law and apply that law to the evidence you saw. What you will not hear from Judge Manning is not part of the law. It's not your duty to come up with law or different circumstances back there to apply to this case. Just what you hear from the jury instructions he'll read you. Otherwise you'll be violating your oath. So. Like we told you in voir dire that you are not allowed to be Defendant. [sic] I told you that for a reason. I had a jury trial. We proved our case beyond a reasonable doubt. The jurors believed it. But they felt sympathy for the Defendant because the police had been rude to him. And they ignored their oaths. And that jury trial, the victim, a female was kidnapped at gunpoint. And that the Defendant, when caught confessed. Said he did it. But the jury ignored the confession. They thought the police were rude to him. In that case they violated their oaths. I know you will not do the same. I wanted to ask what about the victim in this case? What about the victim, that female who was kidnapped at gunpoint? I wanted to ask what about the public that the Defendant was going to return to out in the world? They're [sic] safety's at risk too. But I take partial responsibility for that trial. Full responsibility. I take full responsibility. I did not voir dire on oaths to the jury. I didn't tell them how important that that was. What have I done every time since? Voir dired on oath. I told them it was all about the oath at the beginning of the trial. About voir dire. And I've done that every time. And I know that you will not violate your oath.

Before the trial began, the trial judge instructed the jury that the closing arguments are not evidence. Also, in the jury instructions, given to the jury after the close of the evidence, the trial court informed the jury that the opening statements and closing arguments made by the prosecutor and the defendant's attorney are not evidence and cannot be considered as such.

The comments quoted above merely admonish the jury to comply with their duty to fairly consider the evidence and testimony and to render a decision in accordance with the law. We do not find that the comments are an unfair attempt to appeal to the passions or prejudices of the jury. Further, even if the comments did exceed the proper bounds of a closing argument, the evidence of Turner's guilt presented to the jury was substantial. As discussed above, the jury had abundant evidence to convict Turner of this armed robbery and the statements by the prosecution in the closing argument did not contribute to the verdict. Therefore, we reject Turner's argument.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Ollandis Derrell Turner, for armed robbery.

AFFIRMED.

      On May 24, 2017, the bill of information was amended to add a charge of one count of illegal possession of stolen things. However, Turner was only tried for armed robbery.

      There is some uncertainty regarding the spelling of Turner's middle name. On the bill of information and on his pro se brief, it is spelled "Derrell." Turner signed the pro se brief "Ollandis D. Turner." On his Louisiana identification card, the middle name is spelled "Darrell." In his presentence investigation report, both spellings are used interchangeably.

      No motion to suppress or other objection was filed in the trial court regarding the photographic lineup. A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal. La. C. Cr. P. art. 703(F) ; La. C. Cr. P. art. 841(A) ; State v. Johnson , 95-711 (La. App. 3 Cir. 12/6/95), 664 So.2d 766, writ denied , 96-0082 (La. 3/29/96), 670 So.2d 1236. However, because Turner has also argued in his pro se brief that his trial counsel was ineffective for failing to file a motion to suppress the photographic lineup or to object to its introduction at trial, we will consider the issue. See and compare State v. Johnson , supra .

      See and compare State v. Doucette , supra , in which a cross tattoo between the defendant's eyes did not render his picture in a photo lineup to be unduly suggestive. See also State v. James , 431 So.2d 1075 (La. App. 2 Cir. 1983), writ denied , 439 So.2d 1076 (La. 1983) ; State v. Buchanan , 463 So.2d 660 (La. App. 4 Cir. 1985).

      Turner did not argue that the failure to object to the comments during closing argument constituted ineffective assistance of counsel. However, such a claim would be meritless. As stated herein, the comments did not prejudice the jury. The failure to establish prejudice relating to these issues precludes a claim of ineffective assistance of counsel under Strickland v. Washington , supra .See State v. McGuffie , 42,536 (La. App. 2 Cir. 9/26/07), 2007 WL 2783383, writ denied , 2007-2232 (La. 4/4/08), 978 So.2d 325.


author: MOORE, J.

text:
    Kenneth SMITH, Plaintiff-Appellant v. The CITY OF MONROE, et al. Defendant-Appellees
    No. 52,605-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellant
    CITY ATTORNEYS, LEGAL DEPT. - CIVIL DIVISION, Angie D. Baldwin, Brandon W. Creekbaum, Monroe, Counsel for Appellees
    Before MOORE, STONE, and COX, JJ.
   MOORE, J.

Kenneth Smith appeals a judgment that rejected his claim for personal injuries arising from an incident in which Smith, as a pedestrian, had his right hand struck by a passing motorist. We affirm.

FACTUAL BACKGROUND

Shortly before 3:00 AM on May 29, 2016, Smith was walking south on La. Hwy. 594 (also called Millhaven Road), a two-lane asphalt highway east of the city limits of Monroe, Louisiana. The road has no paved shoulder, only a few inches of asphalt beyond the fog line. Smith was walking on the left side of the road, by his admission, sometimes in the lane of traffic, sometimes straddling the fog line, and sometimes stepping into the grass. He had drunk, by his account, four 12-oz. beers earlier that evening. Although it was the middle of the night, he was dressed entirely in black - hat, shirt, pants and shoes - and was shown in cellphone video as a dark-complected African American. There was little artificial lighting in the area, only a ground-mounted floodlight beaming onto the sign for La. State Police Troop F, located on the east side of La. 594 and somewhat north of where the accident occurred.

Terrance Ervin, an off-duty corporal in the Monroe Police Dept., was driving an unmarked Ford Explorer north on La. 594, returning home from a security detail at the Monroe Civic Center that evening. He testified that he was not tired, was going 40-45 mph, and was using his low beams. When he neared Troop F, however, he suddenly saw a "blur" on the east side of his lane. He testified that the "pavement just came alive" some 15-20 feet ahead of him, and he heard an impact about ½ to 1 second later. He testified that he thought he might have struck a deer, so he drove up to Troop F, turned around, came back and pulled alongside Smith, who was still standing off the side of the road.

Ervin's passenger side mirror had struck Smith's right hand. The glass in the mirror was broken but the mount was still intact. Smith testified that he was not sure exactly where he was standing when his hand was hit, but the right side of his body was "on the side of the northbound lane." Ervin testified that the "blur" he saw was "in the road, inside the fog line," and he steered left to avoid hitting it, but could not. Ervin called State Police and, while he was waiting, took a cellphone video of Smith, transferred to a CD and admitted at trial as Exhibit P-3 (a still from the video was also admitted, as Ex. P-5). According to Ervin, Smith had "slurrness" in his speech and difficulty punching numbers on his own cellphone.

State Trooper Matthew Meek arrived at the scene at 3:05 AM. He described Smith as "almost incoherent," "very intoxicated" and "with a strong odor of alcohol." He wrote Smith a ticket for "pedestrian violation," La. R.S. 32:316. In the accident report, he diagrammed Smith standing directly on the fog line and Ervin swerving slightly to the left before contact. He ascribed the accident to (1) pedestrian actions and (2) pedestrian condition, and wrote that Ervin was neither distracted nor impaired. Aside from the broken glass in the mirror, Trooper Meek found no physical evidence of the accident. He testified that he spoke to Smith in the ambulance, but Smith testified that the trooper never interviewed him, and just gave him a ticket.

Smith was taken to the St. Francis Medical Center ER in Monroe, where he was treated for an arm contusion, pain and minor bleeding; he received 4 mg of morphine. The date of the accident, May 29, was the Sunday before Memorial Day, so Smith did not have to work on Sunday or Monday. The following day, Tuesday, he returned to his job as a contract laborer for the City of Monroe, Department of Public Works; he never missed a day of work. Nearly two months post-accident, he went to Dr. J.D. Patterson for physical therapy that lasted about three months. His medical expenses totaled $ 6,058.32.

PROCEDURAL HISTORY AND TRIAL

Smith filed this suit against Ervin and his employer, the City of Monroe, in May 2017. The City conceded that Ervin was in the course and scope of his employment when the accident occurred.

The case went to trial in April 2018. The three witnesses (Smith, Ervin and Trooper Meek) testified as outlined above. The following details are also salient to the appeal.

Smith related that, in May 2016, he was living with his brother on Eisenhower Street, half a mile or so northeast of the site of the accident; he had spent Saturday afternoon sitting on the front porch, drinking four 12-oz. beers; later that night he needed some cigarettes, so he set out on foot for the EZ-Mart, some three miles down La. 594. He testified that he did not go to the much closer Tiger Mart, because it closed at 10 PM; also, because he did not own a car, he thought nothing of taking this three-mile walk. He admitted he was walking sometimes on and sometimes off the highway, but he "got over" when he saw the Explorer coming. He insisted that he was not drunk when this happened, and that the trooper did not interview him at the scene. On direct examination, he said he had cut his left hand with a chainsaw at work sometime before this accident; on cross, however, he admitted that the chainsaw accident did not happen until August 6, over two months after .

The St. Francis medical records, admitted as Ex. P-1, include a neurological assessment by a Nurse Anderson, taken at 3:57 AM (about one hour post-accident), which lists the patient's speech as "clear, coherent," his orientation as "oriented × 4" and his affect as "calm, cooperative."

Trooper Meek testified that despite being nearly incoherent, Smith told him he was walking to EZ-Mart when the accident happened. Trooper Meek also opined that under R.S. 32:216, a pedestrian must walk on the side of the road, not in the opposing lane , and if there is no sidewalk, he must walk in the grass.

Ervin testified that he was not distracted in any way, and never went off the paved roadway. He admitted that in his initial statement to the trooper, and in a handwritten account, he did not mention that he might have "hit a deer." He said, on cross-examination, that low beams shine about 200 feet ahead, but plaintiff's counsel corrected him (in fact, they shine only 150 feet); still, Ervin did not agree with counsel's suggestion that had he been using high beams (which shine 500 feet, as counsel stated), he would have seen Smith much sooner and had time to avoid the impact. Finally, he pointed out that in the cellphone video, Ex. P-3, he aimed the camera down at Smith's black leather shoes, clearly showing that they were clean, and not damp and dewy, as might be expected had he been walking in the grass.

ACTION OF THE DISTRICT COURT

The court took the matter under advisement and rendered oral reasons for judgment in September 2018. The court found that the preponderance of the evidence was that Smith "was not walking on the grassy narrow shoulder of the road," but, instead, "just inside the fog line in the edge of the lane of travel" when he encountered the Explorer. Further, Smith admitted seeing the approaching vehicle but took no evasive action, and this was likely because he was intoxicated, even though the evidence of his level of intoxication was conflicting. Even if Smith was not intoxicated or if he was walking legally along the edge of the road - which the court doubted, given that his shoes appeared clean in the video - Smith was still the sole cause of the accident, being dressed so dark in the middle of the night. The court therefore concluded that Smith was solely at fault for the accident.

After judgment was rendered dismissing all claims, Smith appealed devolutively. He raises two assignments of error.

DISCUSSION

By his first assignment of error, Smith urges the court committed manifest error in placing 100% of fault on the plaintiff, when the evidence, taken most favorably to the defense, establishes that one cause of the accident was the driver being distracted and failing to see a pedestrian 150 feet ahead of him and walking toward him. Smith contends that because there was no sidewalk, he was proceeding legally and nonnegligently on the left side of the road or its shoulder, under La. R.S. 32:216 B; and Ervin breached the duty of ordinary care imposed on a motorist to avoid colliding with any pedestrian upon the roadway, La. R.S. 32:214 ; Hanna v. Roussel , 35,346 (La. App. 2 Cir. 12/5/01), 803 So.2d 261 ; Jackson v. Scott Truck & Tractor Inc. , 31,933 (La. App. 2 Cir. 5/5/99), 736 So.2d 987. Smith argues that Ervin's own testimony establishes that he was not attentive to what was ahead of him; had he seen the pedestrian 150 feet ahead, when he was doing 45 mph, he would have had 3 to 4 seconds to take evasive action, but did not see him until he was 20 feet away. Smith suggests that this degree of inattention should make Ervin completely at fault, or at least 30% at fault, as was found in the auto-pedestrian case of Finley v. North Assur. Co. of Amer. , 476 So.2d 837 (La. App. 2 Cir. 1985).

Smith further contends that even though courts often accept law enforcement officers' testimony over civilians', there was no reasonable basis to accept Ervin's testimony, as it was internally inconsistent and contradicted by documentary evidence: (1) if Ervin really did not see Smith until 20 feet away, then he could not have discerned that Smith was walking inside the fog line; (2) the visibility was not as poor as Ervin described, as the floodlight shining on the Troop F sign plainly created "backlighting"; (3) even though Ervin and Trooper Meek said Smith was very intoxicated, the video does not show a seriously drunk person, and the St. Francis neurological assessment refutes it; (4) the video shows that the grass was trimmed very short along this stretch of road, so no conclusion should be drawn from the fact that his shoes were dry. Smith concludes that this court should reverse and render judgment finding Ervin and his employer, the City of Monroe, wholly or partially at fault.

Where sidewalks are not provided, "any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction." La. R.S. 32:216 B. The purpose of this statute is to protect pedestrians from cars. Moore v. Oak Meadows Apts. , 43,620 (La. App. 2 Cir. 10/22/08), 997 So.2d 594. A pedestrian has a duty to keep a proper lookout for approaching traffic. Slider v. Myers , 557 So.2d 1111 (La. App. 2 Cir. 1990) ; Thissel v. Commercial Union Ins. Co. , 476 So.2d 851 (La. App. 2 Cir.), writs denied , 479 So.2d 361, 366 (1985).

In addition, "every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway[.]" La. R.S. 32:214. Drivers are charged with the duty to see what an ordinarily prudent driver should have seen and avoid striking pedestrians in the road. Foster v. Clarendon Nat'l Ins. , 32,646 (La. App. 2 Cir. 3/1/00), 753 So.2d 968 ; Bell v. USAA , 30,172 (La. App. 2 Cir. 1/21/98), 707 So.2d 102, writs denied , 98-0712 (La. 5/8/98), 718 So.2d 433, 98-0766 (La. 5/8/98), 718 So.2d 434. Liability is not imposed on a driver simply because his vehicle collides with a pedestrian; the plaintiff must prove negligence on the part of the driver. Simms v. Progressive Ins. Co. , 38,804 (La. App. 2 Cir. 9/29/04), 883 So.2d 473, writ denied , 2004-2871 (La. 1/28/05), 893 So.2d 78 ; Foster v. Clarendon Nat'l Ins. , supra . A night driver is not charged with the duty of guarding against unusual or unexpected obstructions which he could not anticipate and which are, under the circumstances, difficult to discover. Davis v. Smith , 35,117 (La. App. 2 Cir. 10/2/01), 796 So.2d 765, writ denied , 2001-2887 (La. 1/25/02), 807 So.2d 250 ; Jackson v. Scott Truck & Tractor , supra .

The district court's findings of fact are subject to the manifest error standard of review: the court of appeal may not set aside those findings unless they are manifestly erroneous or plainly wrong. Broussard v. State , 2012-1238 (La. 4/5/13), 113 So.3d 175 ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). The appellate court must decide only whether the fact finder's conclusion was reasonable, not whether it was right or wrong. Broussard v. State , supra ; Stobart v. State , 617 So.2d 880 (La. 1993). In order to reverse a factual finding for manifest error, the appellate court must find that the record, viewed in its entirety, (1) contains no reasonable factual basis for the district court's finding and (2) establishes that the finding is clearly wrong. Broussard v. State , supra ; Stobart v. State , supra . When such findings are based on determinations regarding the credibility of witnesses, those findings can virtually never be manifestly erroneous. Hayes Fund for First United Methodist Church of Welsh v. Kerr-McGee Rocky Mountain LLC , 2014-2592 (La. 12/8/15), 193 So.3d 1110 ; Succession of Houston , 52,181 (La. App. 2 Cir. 8/15/18), 253 So.3d 836.

We have closely reviewed the record. Smith admitted that he had been walking along the edge of Hwy. 594, weaving between the pavement, the fog line and the grassy shoulder; crucially, he was not sure precisely where he was standing when the Explorer struck his hand. On this ambiguous evidence, the district court did not abuse its discretion in finding that Smith was either standing on, or too close to, the highway. The court was not plainly wrong to find him at fault.

In addition, the witnesses agreed that Smith was dressed entirely in black, on a poorly lit stretch of road, and this fact is confirmed by the cellphone video. The court committed no manifest error in finding that this contributed to the accident.

The evidence is more disputed as to Smith's level of impairment: he admitted drinking four beers since the afternoon; Ervin and Trooper Meek testified that he was very intoxicated; and the St. Francis neurological assessment, taken about one hour later, described him as clear, coherent, oriented and cooperative. The video does not show severe intoxication, but it supports the district court's finding that he was impaired enough to fail to stand aside when he saw the Explorer coming in his direction. The court was not plainly wrong to find that Smith's impairment contributed to the accident.

By contrast, Ervin testified that despite having just worked a security detail at the Civic Center, he was not tired, a fact confirmed by Trooper Meek. Ervin also testified that he never left the paved portion of the road; no testimony or physical evidence, and nothing in the police report, contradicts this. As noted, the mere fact that a driver strikes a pedestrian does not create liability. Simms v. Progressive Ins. Co. , supra ; Foster v. Clarendon Nat'l Ins. , supra . The fact that Ervin did not immediately tell Trooper Meek about possibly hitting a deer does not, in our view, cast any doubt on his account of his actions. The significant fact is that the accident happened quickly; Ervin's estimates of time and distance cannot have been studied and precise. The court did not abuse its discretion in accepting Ervin's version of the accident.

Counsel's argument that had Ervin been using his high beams he could have seen the pedestrian sooner and taken some evasive action is tenable but does not show manifest error. In general, a driver must use "a distribution of light or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle[.]" La. R.S. 32:322 A. However, the driver is held to a standard of ordinary care, and is not required to guard against unusual or unexpected obstructions which are difficult to discover. Davis v. Smith , supra ; Jackson v. Scott Truck & Tractor , supra . Given the poor lighting in the area and Smith's exceptionally dark attire, the district court was not plainly wrong to find that he presented an unusual or unexpected obstruction.

Finally, Smith urges that even if he was negligent, he was not the sole cause of the accident; under the scheme of comparative fault, La. C.C. art. 2323, the driver could still be cast with some of the fault, like the 30% fixed by this court in Finley v. North Assur. Co. of Amer. , supra . Our analysis in Finley was heavily premised on the rationale of Baumgartner v. State Farm Mut. Auto. Ins. Co. , 356 So.2d 400 (La. 1978), which held that whenever a driver strikes a pedestrian on a city crosswalk, the driver must be deemed wholly at fault, and the pedestrian, no matter how impaired, must be deemed free of fault.

The factual distinction between the well-lighted and fully developed suburban intersection in Baumgartner , and the minimally lighted and mostly undeveloped stretch of Hwy. 594 in the present case, should be obvious. More importantly, we now recognize that Baumgartner is an artifact of the system of contributory negligence, in which courts may have indulged in legal fictions to avoid the harsh result of denying recovery to claimants who were only slightly negligent. Notably, Baumgartner predated the enactment of Art. 2323 (1979 La. Acts, No. 431, § 1, effective August 1, 1980), and was expressly overruled by Art. 2323. Turner v. New Orleans Pub. Serv. Inc. , 476 So.2d 800 (La. 1985). This court's opinions since Finley have affirmed that dark-clad, or otherwise concealed, pedestrians may indeed be 100% at fault if struck by a vehicle. Foster v. Clarendon Nat'l Ins. Co. , supra ; Burks v. McKean , 559 So.2d 921 (La. App. 2 Cir.), writ denied , 566 So.2d 398 (1990) ; Myles v. Turner , 24,198 (La. App. 2 Cir. 1/19/94), 632 So.2d 384. On the instant record, we find no manifest error in the district court's decision to assess all fault to the plaintiff. Smith's first assignment of error lacks merit.

By his second assignment of error, Smith urges the district court erred in failing to award damages, and argues that this court should fix damages by de novo review. In light of our resolution of the first assignment of error, we pretermit any discussion of damages.

DECREE

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, Kenneth Smith.

AFFIRMED .