author: WINDHORST, J.

text:
    STATE of Louisiana v. Benjamin J. CARTER, Jr.
    NO. 18-KA-541
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, BENJAMIN J. CARTER, JR., Cynthia K. Meyer
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
   WINDHORST, J.

Defendant appeals his conviction and sentence for failing to maintain his registration as a sex offender. For the reasons that follow, we affirm defendant's conviction and sentence and remand with instructions. We also grant appellate counsel's motion to withdraw as attorney of record.

FACTS AND PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information charging defendant, Benjamin J. Carter, Jr., with failing to maintain his registration as a sex offender in violation of La. R.S. 15:542.1.4. Defendant pled not guilty at his arraignment. On June 27, 2018, defendant withdrew his plea of not guilty, and after being advised of his Boykin rights, pleaded guilty as charged.

On July 9, 2018, the trial court sentenced defendant to five years imprisonment at hard labor to be served without benefit of parole, probation, or suspension of sentence, and imposed a $ 3,000 fine. Defendant filed a motion for appeal on July 11, 2018, and it was granted the following day.

Because defendant's conviction resulted from a guilty plea, the facts underlying the crime of conviction were not fully developed in the record. According to the superseding bill of information, on or about July 22, 2017, in Jefferson Parish, defendant violated La. R.S. 15:542.1.4 by failing to appear for his annual registration appointment with the Jefferson Parish Sheriff's Office, which was related to previous convictions for indecent behavior with a juvenile and failure to update registration as a sex offender.

The State provided a factual basis in this matter, after the trial court accepted defendant's guilty plea:

With regard to our bill in 17-5951, as superseded; had this matter proceeded to trial, our evidence int [sic ] his case would have proven that Benjamin J. Carter, Jr., late of Jefferson Parish, on or about the 22nd day of July in the year 2017, violated Louisiana Revised Statute 15:542.1.4, in that he, having been previously convicted of the crime of Indecent Behavior with a Juvenile in case number 00-6450 on the docket of Division M, in the Twenty-Fourth Judicial District Court, Parish of Jefferson. And in consequence thereof, having an obligation to register as a sex offender, did fail to maintain his registration as a convicted sex offender, in that he did fail to appear for his annual registration appointment with the Jefferson Parish Sheriff's Office. Having also previously been convicted of the crime of Failure to Update Registration as a Sex Offender on April 27, 2010, under case number 09-4805, the docket of Division A, in the Twenty-Fourth Judicial District Court, Parish of Jefferson. And further, of Failure to Register as a Sex Offender on May 10, 2013, under case number 13-1139, of the docket of Division K, of the Twenty-Fourth Judicial District Court, Parish of Jefferson.
His failure in this case occurred in Jefferson Parish, which is within this Court's jurisdiction.

LAW AND DISCUSSION

Pursuant to 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, under 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).

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.

In the present case, defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel does address the denial of the motion to quash the bill of information but recognizes that defendant is precluded from seeking review of this ruling on appeal. She contends that defendant entered an unqualified guilty plea, waiving any pre-plea non-jurisdictional defects. Appellate counsel further states that the trial judge explained each right necessary to ensure a knowing and intelligent waiver of rights. Counsel concludes that there does not appear to be any basis in the record to support a claim that the plea is constitutionally infirm. Counsel further acknowledges that defendant was informed as to the sentence that would be imposed and that his sentence is in conformity with the plea agreement. The State agrees with appellate counsel that this case presents no non-frivolous issues for appellate review.

Appellate counsel has filed a motion to withdraw as attorney of record, stating that she has made 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 would arguably support the appeal. She further indicates that she has notified defendant of the filing of this motion and has advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 10, 2018, to file a pro se supplemental brief. Defendant did not file a pro se brief in this matter.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The record reflects that defendant appeared at each stage of the proceedings against him, including his guilty plea proceeding and his sentencing. Thus, defendant's presence does not present any issues that would support an appeal. In addition, the bill of information properly charged defendant, plainly and concisely stated the essential facts constituting the charged offense, and sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464 and 466.

No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). As noted by appellate counsel, defendant filed a motion to quash the bill of information, which was denied by the trial court. Defendant entered an unqualified guilty plea and thus waived any pre-plea non-jurisdictional defects, including the ruling on his motion to quash. See State v. Billiot, 17-197 (La. App. 5 Cir. 11/15/17), 232 So.3d 702, 707, writ denied, 17-2144 (La. 9/14/18), 252 So.3d 478. Further, because defendant pled guilty in this matter, he waived all non-jurisdictional defects. State v. Wingerter, 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

We find that the record indicates that defendant was aware he was pleading guilty to the offense of failure to maintain registration as a sex offender in violation of La. R.S. 15:542.1.4, which occurred on July 22, 2017. A review of the record reveals no irregularities in defendant's guilty plea that would render it invalid. The colloquy in this case began with defendant acknowledging that he had the opportunity to speak with his counsel in reference to his plea that morning and that he was able to read and understand the Boykin form. He then acknowledged that they were his initials and signature on the form. The colloquy reflects that defendant had a twelfth-grade education and was able to read, write, and understand English. Defendant also agreed that he understood the nature of the crime for which he was pleading and denied being under the influence of alcohol or drugs at the time or that he had a mental or physical impairment that was affecting his ability to plead guilty.

Defendant was also properly advised of his Boykin rights prior to pleading guilty. During the colloquy, the trial judge advised defendant of his right to a trial by jury, his right to confront his accuser and cross-examine witnesses, and his right to remain silent and not be compelled to incriminate himself. Defendant indicated during the colloquy that he understood these rights and that by entering a guilty plea he was waiving these rights. In the waiver of rights form, defendant also indicated he understood the rights he was waiving by pleading guilty.

During the colloquy and by means of the waiver of rights form, defendant acknowledged that his attorney explained the Habitual Offender Law to him as well. He agreed that no promises or threats had been made to encourage his guilty plea. He also indicated that he was satisfied with the manner in which his attorney handled his case.

During the colloquy, defendant was advised of the maximum sentence he faced pursuant to La. R.S. 15:542.1.4. He was informed that he could receive a twenty-year sentence at hard labor without benefit of parole, probation, or suspension of sentence "[a]nd/or a fine of $ 3,000, or both[.]" Defendant indicated that he understood his potential sentencing. Defendant was also advised of the sentence that would be imposed - five years to be served at hard labor without benefit of parole, probation, or suspension of sentence and a $ 3,000 fine. Defendant agreed that he understood all of the possible legal consequences of pleading guilty and indicated that he wished to plead guilty at that time.

Considering the above, defendant's sentence does not present an issue for appeal. His sentence falls within the sentencing range prescribed by the statute. See La. R.S. 15:542.1.4(A)(2). Further, defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

ERRORS PATENT DISCUSSION

The record was reviewed 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). We note that the State of Louisiana Uniform Commitment Order ("UCO") does not include the trial court's recommendation that defendant be allowed to participate in any self-help programs that may be available to him. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the case for correction of the UCO to reflect the court's recommendation for any self-help programs available to defendant, and direct the Clerk of Court to transmit the corrected UCO to the officer in charge of the institution to which defendant has been sentenced as well as to the legal department of the Louisiana Department of Public Safety and Corrections. See, State v. Vance, 17-72 (La. App. 5 Cir. 8/30/17), 225 So.3d 1192, 1196.

DECREE

Accordingly, for the reasons provided herein, defendant's conviction and sentence are affirmed, the matter is remanded for a correction to the uniform commitment order, and appellate counsel's motion to withdraw as attorney of record is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

      The court also recommended any self-help programs available to defendant.

      The bill of information states that defendant:
      violated La. R.S. 15:542.1.4 in that he, having been previously convicted of the crime of Indecent Behavior with a Juvenile in case number 00-6450, of the docket of Division "M," in the Twenty-Fourth Judicial District Court, Parish of Jefferson, and, in consequence thereof, having an obligation to register as a sex offender, did fail to maintain his registration as a convicted sex offender, in that he did fail to appear for his annual registration appointment with the Jefferson Parish Sheriff's Office - having also previously been convicted of the crime of Failure to Update Registration as a Sex Offender on April 27, 2010, under case number 09-4805, of the docket of Division "A", in the Twenty-Fourth Judicial District Court, Parish of Jefferson, and also of Failure to Register as a Sex Offender on May 10, 2013, under case number 13-1139, of the docket of Division "K", in the Twenty-Fourth Judicial District Court, Parish of Jefferson[.]

      In Bradford, supra , this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 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 ).


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    GLOBAL CONSTRUCTION & EQUIPMENT, L.L.C. and Michelle Hebert v. RATHBORNE PROPERTIES, L.L.C.
    Rathborne Properties, L.L.C. v. Global Solution Enterprises, L.L.C.
    NO. 18-CA-169 18-CA-170
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, GLOBAL CONSTRUCTION & EQUIPMENT, L.L.C. AND MICHELLE HEBERT, Patrick H. Patrick, Stephen E. Mattesky
    COUNSEL FOR DEFENDANT/APPELLANT, RATHBORNE PROPERTIES, L.L.C., Jacob Kansas
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   CHAISSON, J.

In these two consolidated cases arising out of a disputed commercial property lease agreement and a writ of sequestration, Rathborne Properties, LLC ("Rathborne") appeals a judgment of the trial court holding it liable to Michelle Hebert and her company, Global Solutions Enterprises, LLC ("Global"), in the amount of $ 25,680.94. For the following reasons, we affirm in part and reverse in part the judgment of the trial court, and amend the judgment accordingly.

FACTS AND PROCEDURAL HISTORY

On January 6, 2006, Global, a limited liability company owned by Michelle Hebert, entered into a lease for commercial warehouse and office space owned by Rathborne in Harvey, Louisiana. Although Global paid its rent late on intermittent occasions from 2006 to 2015, the parties continued in their lease agreement. Beginning around May, 2015, Global began missing rent payments. In August, 2015, Rathborne made a demand for delinquent payments upon Ms. Hebert and Global by correspondence, which was followed several days later by a notice to vacate the premises. On September 11, 2015, Ms. Hebert notified Rathborne that her businesses would be vacating the premises by October 15, and that all sums owed to Rathborne would be paid before departing the premises. An agent for Rathborne acknowledged receipt of that notice and contacted Ms. Hebert to make arrangements to show the property to prospective tenants and place a "for lease" sign on the property. There were no further communications between Ms. Hebert and Rathborne.

On September 29, 2015, Rathborne filed a writ of sequestration, which was executed on October 1, 2015, by Jefferson Parish Sheriff's deputies and Rathborne's attorney, who came to the leased premises and proceeded to seize Global's movables. When Ms. Hebert arrived during the course of the seizure, Rathborne's attorney demanded $ 17,000.00 from her. That same day, Ms. Hebert tendered a cashier's check to Rathborne's attorney in the amount of $ 16,343.00, and the seizure was halted. The following day, Rathborne sent another notice to vacate the premises as well as a demand for additional money. A letter included with the demand indicated that the Petition for Sequestration and Rule for Possession of Premises would be dismissed because of the $ 16,343.00 payment. Rathborne never filed for a dismissal.

On October 8, 2015, Global and Ms. Hebert filed a petition for damages in which they alleged that Rathborne, through its agent, had entered into a contractual agreement concerning the payment of rent owed, which Rathborne breached in bad faith in causing the writ of sequestration to be issued. In addition to the return of money paid in excess of the rent owed under the lease agreement, Ms. Hebert and Global sought damages for intentional infliction of emotional distress, unjust enrichment, intentional tort, and abuse of process. The trial court granted a motion to transfer filed by Rathborne to have the case consolidated with the sequestration proceedings. Rathborne also filed peremptory exceptions of no cause of action and no right of action, which were denied by the trial court. On July 15, 2016, Rathborne filed an answer and affirmative defenses to plaintiffs' petition for damages, wherein they refuted the existence of any agreement regarding payment of past due rent prior to the October 15 departure. Rathborne also filed reconventional demands against Global and Ms. Hebert for rent owed for the month of October, 2015, and for damages to the leased premises.

Following a two-day bench trial, the trial court rendered judgment in favor of Ms. Hebert and Global. In its reasons for judgment, the trial court found that a contract had been formed between the parties regarding the payment of past due rent and the date that Global was to vacate the premises, and that the writ of sequestration was therefore wrongfully issued in violation of that agreement. Rathborne was ordered to pay $ 27,784.27, a sum which includes the difference between the delinquent rent owed and what Ms. Hebert paid to stop the sequestration, attorney's fees due for wrongful sequestration under La. C.C.P. art. 3506, and general damages to Ms. Hebert individually. The trial court further found that Global had caused $ 2,103.33 in damages to the leased premises and awarded Rathborne that amount, making the total award from Rathborne to Global and Ms. Hebert the sum of $ 25,680.94. Rathborne filed a motion for a new trial which was denied by the trial court. This timely appeal follows.

On appeal, Rathborne raises multiple assignments of error which generally concern the following issues: 1) the existence of an agreement to forebear, or promise of payment between the parties; 2) the award of general damages to Ms. Hebert; 3) the amount of the award for damages to the property; and 4) the award of attorney's fees. In response, Global and Ms. Hebert filed an answer to Rathborne's appeal seeking an increase in the award of attorney's fees.

DISCUSSION

Agreement to Forebear

The existence of a forbearance agreement between the parties directly relates to the trial court's finding that Rathborne had no "good cause" to initiate sequestration proceedings against Global and that the writ of sequestration was therefore wrongfully issued. On appeal, Rathborne argues that the trial court erred in its factual finding that Rathborne agreed to forebear on the payment of delinquent rent owed by Global until such time as Global vacated the leased premises. Specifically, Rathborne disputes that any action, or inaction, on the part of its representatives in response to Ms. Hebert's September 11, 2015 email, indicated acquiescence by Rathborne to Global's proposal for the payment of the delinquent rent. This argument, which omits any reference to this Court's standard of review, is nearly the same argument made by Rathborne at trial and on the motion for new trial.

It is well settled that a court of appeal may not set aside a trial court's findings of fact in the absence of manifest error, or unless it is clearly wrong, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

A contract is formed by the consent of the parties established through offer and acceptance which may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. La. C.C. art. 1927. When determining whether a contract has been formed, the trial judge is given discretion to determine if consent to an agreement may be implied from the particular circumstances of each case. Vignette Publications, Inc. v. Harborview Enterprises, Inc. , 00-1711 (La. App. 4 Cir. 9/12/01), 799 So.2d 531, 534, citing McDermott, Inc. (Harvey Supply Div.) v. M-Elec. & Const. Co., Inc. , 496 So.2d 1105 (La. App. 4 Cir. 10/9/86).

Over the course of the trial, the court heard testimony from both Ms. Hebert and Ms. Annette McDow, the agent for Rathborne with whom Ms. Hebert had communicated in August and September of 2015 regarding Global's intent to vacate the property before October 15 and pay all past due rent prior to that date. Email communications and other documents exchanged between the parties were also introduced into evidence. The testimony that was presented was conflicting: Ms. Hebert testified that the offer she made in the September 11, 2015 email to vacate the building and pay the delinquent rent owed was accepted by Ms. McDow. Ms. McDow denied that she orally expressed acceptance, but acknowledged that she took actions consistent with what was proposed in Ms. Hebert's email.

In its reasons for judgment, the trial court found the testimony of Ms. Hebert more credible, and particularly stated that Ms. McDow's testimony indicated acceptance of the offer. Both parties presented sufficient evidence at trial that reasonably support their conclusions. There is no dispute that over the long course of this lease, Rathborne had accepted late rent payments from Global. Although it may be considered an unusual business practice to continue such forbearance at the termination of the lease, we simply cannot say, upon our review of the evidence, that the trial court was manifestly erroneous in crediting the testimony of Ms. Hebert and determining that Rathborne agreed to forbear on the payment of delinquent rent until Global vacated the premises.

Award of General Damages to Ms. Hebert

The award of general damages to Ms. Hebert for wrongful sequestration of Global's property raises a question of law. Questions of law are not reviewed on appeal under the manifest error or clearly wrong standard, but rather under a de novo review. Sid-Mar's Rest. & Lounge, Inc. v. State ex rel. Governor , 15-326 (La. App. 5 Cir. 12/9/15), 182 So.3d 390, 399. At trial, Ms. Hebert offered two theories of recovery for the alleged mental anguish, embarrassment, and humiliation she suffered.

First, she relies on an unpublished case from the First Circuit, Tchefuncte Harbour Townhome Ass'n, Inc. v. Costanza , 15-0524 (La. App. 1 Cir. 11/6/15), 2015 WL 6842117, wherein the Court held, generally, that damages for wrongful seizure are allowed after an illegal seizure, and that such an award can include compensation for embarrassment, humiliation, mental anguish and worry. The Tchefuncte case, and the cases cited therein, may be distinguished from the case sub judice because in those cases, the property being seized was the personal property and homes of the plaintiffs. Id. ; Bank of New York Mellon v. Smith , 11-0060 (La. App. 3rd Cir. 6/29/11), 71 So.3d 1034, 1045, writ denied , 11-2080 (La. 11/18/11), 75 So.3d 462, quoting Dixie Sav. And Loan Ass'n v. Pitre , 99-154 (La. App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied , 99-2867 (La. 12/10/99), 751 So.2d 855. In this case, the property seized did not belong to Ms. Hebert, but to Global, and therefore we find this theory of recovery for general damages inapplicable.

Ms. Hebert also articulated in her petition a claim against Rathborne for intentional infliction of emotional distress as a basis for awarding her general damages. In order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co. , 585 So.2d 1205, 1209 (La. 1991). Liability can arise where the actor desires to inflict severe emotional distress or where he knows that such distress is certain or substantially certain to result from his conduct. Id. at 1210. While Ms. Hebert presented some evidence at trial as to the severity of the mental anguish and embarrassment she suffered on the day of the seizure, no evidence was offered to show that Rathborne intentionally or knowingly sought to inflict severe emotional distress on Ms. Hebert.

Upon our de novo review, we find no basis for the award of general damages, and accordingly, we reverse that part of the trial court's judgment awarding Ms. Hebert $ 5,000.00 in general damages.

Award for Damages to the Property

Rathborne made demands in reconvention for breach of provisions of the lease which required that Global surrender the premises in like order and condition as received, wear and tear excepted. On appeal, Rathborne argues that the trial court erred in holding Global liable only for damages to the roll-up doors and ceiling amounting to $ 2,103.33, rather than for the $ 6,032.35 in purported property damage alleged in the reconventional demand.

The trial court's factual determinations on this issue are reviewed under the manifestly erroneous, clearly wrong standard of review articulated above. Rathborne provided invoices and put witnesses on the stand to testify as to the damages to the lights and water heater. The trial court weighed this evidence and determined which items of damage were caused by Global and which were normal wear and tear. Upon review of this evidence, we find no manifest error in the trial court's determinations regarding the damages caused by Global and the resulting award amount to Rathborne for these damages.

Award of Attorney's Fees

Rathborne argues that the trial court's award of $ 16,671.50 in attorney's fees pursuant to La. C.C.P. art. 3506 is improper because the award includes fees incurred for Ms. Hebert and Global's action for damages and not merely the action to dissolve the writ of sequestration.

La. C.C.P. art. 3506 states, in pertinent part:

The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney's fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

While Rathborne argues that the writ of sequestration was dissolved on October 1, 2015, upon Ms. Hebert's payment, the actual motion and order for dismissal of the writ was drafted, sent to opposing counsel, but never filed by Rathborne in court. The determination of whether the writ was wrongfully issued, and the final dissolution of the writ, did not occur until the district court's judgment following trial on the merits. Rathborne's argument about attorney's fees was carefully considered by the trial court in its judgment denying the motion for a new trial. In its reasons for judgment, the trial court stated:

It is well settled in Louisiana that 'rules of procedure implement the substantive law and are not an end in themselves. Each pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice.' First National Bank v. Pearl River Fabricators, Inc. , 971 So.2d 302 (La. 2007) (allowing a party by intervention to seek damages and attorney fees for wrongful sequestration under Art. 3506 ). The characterization of a pleading by a litigant is not controlling. Pleadings are taken for what they actually are and not for what their authors designate them. A court should not reject a justiciable cause 'merely because it is dressed in the wrong coat.' State, Dep't of Children & Family Servs ex rel. AL v. Lowrie , 167 So.3d 57[3] (La. 2015). As stated by Global/Hebert, here, its petition served as a reconventional demand under Art. 3506 and attorney's fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits, as occurred here.

Under these circumstances, we find no abuse of discretion in the trial court's construction of the plaintiffs' pleadings as a reconventional demand, and therefore affirm the award of attorney's fees on that basis.

In their answer to the appeal, Global and Ms. Hebert have requested an additional $ 5,000.00 in attorney's fees in relation to their work on the appeal of this case. While we recognize that the damages authorized under La. C.C.P. art. 3506 include such fees, it is within this Court's discretion as to whether such an award is made. Under the circumstances of this particular case, we decline to award any additional attorney's fees to Global and Ms. Hebert.

CONCLUSION

We affirm that portion of the judgment awarding $ 6,112.77 to Global for the wrongful sequestration of Global's property on October 1, 2015, which represents the $ 16,343.00 paid by Ms. Hebert, minus $ 10,230.23 in delinquent rent owed to Rathborne. We reverse that portion of the judgment awarding $ 5,000.00 in general damages to Ms. Hebert. We affirm that portion of the judgment awarding $ 2,103.33 to Rathborne for property damage caused by Global. We affirm as well the award of $ 16,671.50 in attorney's fees owed to Ms. Hebert and Global for the issuance of the wrongful writ of sequestration, but we decline to award any additional attorney's fees as requested in the answer to the appeal. Accordingly, we amend the judgment so that the total amount due from Rathborne to Global and Ms. Hebert is $ 20,680.94.

AFFIRMED IN PART; REVERSED IN PART

      Between 2006 and 2015, another corporation owned by Ms. Hebert, Global Construction & Equipment, LLC, operated out of the leased premises and paid rent to Rathborne. The rights and obligations of Global Solutions Enterprises, LLC and Global Construction & Equipment, LLC vis-à-vis the parties were determined in the trial court following various peremptory exceptions filed by Rathborne. For the purposes of resolving the issues raised in this appeal, these two entities are indistinguishable, and therefore will be referred to as "Global" herein.


author: JOHNSON, J.

text:
    Jason GRUBBS and Aimee Grubbs v. HAVEN CUSTOM FURNISHINGS, LLC, Jennifer Uddo, Terri McCormack, Jody Price, and Square, Inc.
    Haven Customs Furnishings, LLC v. Jason Grubbs and Aimee Grubbs
    NO. 18-CA-710 18-CA-711
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, JASON AND AIMEE GRUBBS, Roderick C. Patrick, New Orleans.
    COUNSEL FOR DEFENDANT/APPELLEE, SQUARE, INC., Richard T. Simmons, Jr., Metairie.
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Plaintiffs/Appellants, Jason Grubbs and Aimee Grubbs, appeal the judgment that sustained the exceptions of no right of action and no cause of action of Defendant/Appellee, Square, Inc., and dismissed their breach of contract lawsuit filed against it in the 24th Judicial District Court, Division "K". For the following reasons, we vacate the trial court's judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, in the latter part of 2016, Mrs. Grubbs sought a professional design specialist to provide a proposal to design and furnish portions of her home. Mrs. Grubbs and Haven Custom Furnishings, LLC (hereinafter referred to as "Haven") agreed that Haven would propose different furniture items and accessories for Mrs. Grubbs' home. In consideration of the agreement between Mrs. Grubbs and Haven, Mr. Grubbs provided a $ 10,000 deposit to be held in escrow. Mr. Grubbs authorized the initial $ 10,000 payment to be charged to his American Express credit card. Over the course of 2016, Haven charged Mr. Grubbs' American Express card several more times, amounting to tens of thousands of dollars in charges.

On December 20, 2016, Plaintiffs filed their "Petition for Defamation, Conversion, Breach of Contract, and Infliction of Emotional Distress," wherein Plaintiffs sued Haven, its owners, Jennifer Uddo and Terri McCormack, and Square, Inc. As Haven's credit card processor, Plaintiffs asserted that Square, Inc. received and processed unauthorized charges from Haven. In response to Plaintiffs' petition, Square, Inc. filed "Peremptory Exceptions of No Right of Action and No Cause of Action, and in the Alternative, Dilatory Exceptions of Vagueness or Ambiguity, and Prematurity." In its exceptions, Square, Inc. argued that Mr. Grubbs is not a third-party beneficiary to its contract with either Haven or American Express; thus, he had neither a right of action nor a cause of action against it.

A hearing on Square, Inc.'s exceptions was held on September 27, 2017. At the conclusion of the hearing, the trial judge orally found that no facts alleged in the petition supported any cause of action against Square, Inc., and any benefit Plaintiffs may have received from Square, Inc.'s contracts was purely incidental. The trial judge then sustained Square, Inc.'s exception of no cause of action and denied Plaintiffs' request to amend their petition. In a written judgment rendered on October 13, 2017, the trial court sustained Square, Inc.'s exceptions of no right of action and no cause of action, dismissed all of Plaintiffs' claims against Square, Inc. with prejudice, and found the remaining exceptions of vagueness, ambiguity, and prematurity to be moot. Plaintiffs filed the instant appeal, contesting the trial court's October 13, 2017 judgment.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs allege the trial court erred in: 1) sustaining Square Inc.'s exception of no cause of action; 2) sustaining Square Inc.'s exception of no right of action, particularly when it was not sustained at the exceptions hearing; and 3) failing to provide them with an opportunity to amend their petition to cure any alleged defect.

LAW AND ANALYSIS

Exception of No Cause of Action

Plaintiffs allege the trial court was clearly erroneous in sustaining Square Inc.'s peremptory exception of no cause of action. They argue that the trial court was required to accept all of their allegations as true, and their petition set forth more than sufficient facts to show that Square, Inc. was liable to them and provided, at least, one cause of action. Plaintiffs contend that Square, Inc. acted as a paid agent of Haven by processing Haven's charges and presenting them to American Express for payment. Plaintiffs further contend that Square, Inc.-as a credit card processor-had independent liability and assumed certain risks and warranties, which included assurances that the transaction between Plaintiffs and Haven was free from defects and the draft or electronic funds transfer was properly payable by American Express; and, Square, Inc. breached its warranty.

Square, Inc. maintains the trial court correctly held that Plaintiffs have no cause of action against it. It asserts that there is no cognizable legal remedy available to Plaintiffs based on the allegations in their petition. Because Plaintiffs' petition purported their status as third-party beneficiaries and were mere legal conclusions, Square, Inc. contends that Plaintiffs were not entitled to a presumption of truth for such allegations from the trial court. Additionally, Square, Inc. asserts Plaintiffs have admitted that they had an exclusive agreement with Haven, not Square, Inc., and solely have a legal remedy against Haven.

A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert an action against the defendant. Show-Me Const., LLC v. Wellington Specialty Ins. Co. , 11-528 (La. App. 5 Cir. 12/29/11), 83 So.3d 1156, 1159, citing DiLeo v. Hansen , 09-974 (La. App. 5 Cir. 6/29/10), 45 So.3d 1120, 1122-23. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Jenkins v. Jackson , 16-482 (La. App. 5 Cir. 2/22/17), 216 So.3d 1082, 1089, writ denied , 17-652 (La. 9/6/17), 224 So.3d 984. The exception's function is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Id. , citing Guidry v. Hanover Ins. Co. , 09-220 (La. App. 5 Cir. 11/10/09), 28 So.3d 426, 428. No evidence may be introduced to support or controvert the exception raising the objection of no cause of action. Show-Me Const., LLC , supra , citing La. C.C.P. art. 931. For the purpose of determining the issues raised by the exception, all facts pleaded in the petition must be accepted as true. Id.

The appellate court standard of review of a judgment sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Jenkins , supra . A petition should not be dismissed for failure to state a cause of action, unless it appears beyond a doubt the plaintiff can prove no set of facts in support of any claim that would entitled him to relief. Id.

In the instant matter, Plaintiffs' petition sets forth 76 allegations. Among those allegations, Plaintiffs allege the following:

28.
Defendants then engaged in an unauthorized billing frenzy in which Jason Grubbs' American Express credit card was illegally and improperly billed without his permission for the following amounts...
29.
The charges on Jason Grubbs' American Express credit card were never properly payable.
30.
The charges on Jason Grubbs' American Express credit card violated Louisiana law since alleged obligations of this type and nature must be in writing.
31.
Jason Grubbs never authorized any of the amounts defendants improperly charged on his American Express credit card.
32.
Each time that defendants improperly charged Jason Grubbs' American Express credit card, defendants used the credit card information that they had illegally and improperly retained from the escrow deposit transaction.
* * *
49.
Defendants also provided American Express with a forged "signature" falsely purporting to be the signature of Jason Grubbs which was essentially a squiggly line with no letters or characters.
52.
All defendants are jointly and severally liable in solido for the acts, omissions, and breach of contract described in this petition.

(Emphasis in original).

The petition then sets forth several allegations regarding Square, Inc.'s contracts with Haven and American Express and Mr. Grubbs' third-party beneficiary status. It further alleges that Square, Inc. is strictly liable for Jason Grubbs' damages for presenting charges from Haven to American Express that were not properly payable nor authorized by Mr. Grubbs.

After de novo review of Plaintiffs' petition, we find that the petition states a range of valid causes of action against Square, Inc. The petition sufficiently alleges causes of action based in tort and contract, e.g. , fraud and breach of contract, against all of the named defendants-including Square, Inc.; and, the law affords a remedy to Plaintiffs on the facts alleged in the petition. Therefore, we find that the trial court was erroneous in sustaining Square, Inc.'s exception of no cause of action.

Exception of No Right of Action

Plaintiffs allege the trial court was erroneous in sustaining Square, Inc.'s exception of no right of action. They first argue that the trial court's oral rendition of its ruling at the hearing was different from the ruling in the written judgment. Plaintiffs further argue that the trial court relied upon documents that were not admitted into evidence, i.e. , the intertwined contracts between Square, Inc., Haven and American Express, as the basis to improperly sustain Square, Inc.'s exception. In addition to not being admitted into evidence, Plaintiffs contend that those documents attached to Square, Inc.'s exception were unauthenticated, unverified, and unsigned and were improperly considered by the trial court.

Square, Inc. avers the trial court correctly held that Plaintiffs have no right of action against it. It asserts that Plaintiffs have no right of action against it because they are not third-party beneficiaries to the contracts between Square, Inc. and Haven or Square, Inc. and American Express, and Plaintiffs cannot prove with certainty that they would benefit from either of those contracts. Square, Inc. further asserts that Plaintiffs' benefit, if any exists, is a "mere incident" of the contracts at issue, not an actual stipulation that benefits them, and Plaintiffs cannot show that Square, Inc. owes them any legal obligation.

Before addressing whether the trial court properly sustained Square, Inc.'s exception of no right of action, we first note that appeals are taken from written judgments, not oral judgments. In Quality Paint Hardware & Marine Supply Inc. v. Crescent Coating & Servs. Inc. , 13-129 (La. App. 5 Cir. 8/27/13), 123 So.3d 780, 784, citing State v. Beaudoin , 06-88 (La. App. 5 Cir. 6/29/06), 939 So.2d 428, this Court held that an oral judgment that has not been reduced to writing and signed by the trial judge is insufficient to divest the trial court of jurisdiction and grant jurisdiction to the appellate court. Consequently, although the trial court may have orally only sustained Square, Inc.'s exception of no cause of action, we are constrained to consider the trial court's written judgment in this matter, which sustained both the exceptions of no cause of action and no right of action.

An action can only be brought by a person having a real and actual interest which he asserts. Show-Me Const., LLC , 83 So.3d at 1158, citing La. C.C.P. art. 681. The peremptory exception of no right of action tests whether the individual bringing an action has the capacity or legal interest in judicially enforcing the right asserted. Id. , citing La. C.C.P. art. 927(A)(5). A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. Id. , citing First Bank and Trust v. Duwell , 10-481 (La. App. 5 Cir. 12/14/10), 57 So.3d 1076, 1078. The exception of no right of action tests whether the plaintiff has a "real and actual interest" in the action, but it does not raise questions of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense.

Roubion Shoring Company, LLC v. Crescent Shoring, L.L.C. , 16-540 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 926.

At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. Id. , citing Lemmon Law Firm, LLC v. School Bd. of Parish of St. Charles , 13-376 (La. App. 5 Cir. 12/12/13), 131 So.3d 231. The burden of proof of establishing the exception of no right of action is on the exceptor. Id. , citing City of New Orleans v. Board of Directors of Louisiana State Museum , 98-1170 (La. 3/2/99), 739 So.2d 748. The standard of appellate review for the exception of no right of action is de novo. Wells v. Fandal , 13-620 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87, writ denied , 14-511 (La. 4/25/14), 138 So.3d 645.

In its memorandum to the trial court for the peremptory exceptions and its argument at the hearing, Square, Inc. solely argued that Plaintiffs have no right to bring an action against it because they are not third-party beneficiaries to Square, Inc.'s contracts with Haven or American Express. Square, Inc. attached multiple contracts to its memorandum to support its position. However, the transcript of the hearing on the exceptions does not indicate that any exhibits were introduced or accepted by the trial court. Thus, none of the documents supporting Square, Inc.'s exception of no right of action were properly before the trial court for consideration. Accordingly, we are limited to the review of the allegations in Plaintiffs' petition to determine whether Plaintiffs have a right to bring an action against Square, Inc.

Upon de novo review, we find that Square, Inc. failed to meet its burden of proving that Plaintiffs have no right to bring any action against it. The grounds for Square, Inc.'s exception do not appear in the petition. Furthermore, Square, Inc. failed to submit any evidence that proves Plaintiffs are not third-party beneficiaries or that Plaintiffs are not members of the class of person with a legal interest in the other causes of action set forth in Plaintiffs' petition. Therefore, we find the trial court erred in sustaining Square, Inc.'s exception of no right of action.

Opportunity to Amend Petition

In the alternative, Plaintiffs allege the trial court was erroneous in failing to allow them time to amend their petition to cure any defects found by the court. Conversely, Square, Inc. avers the trial court properly denied Plaintiffs' request to amend their petition because no amendment could cure the defects of them having no cause of action and no right of action.

Because we have found that Plaintiffs both have a right of action and a cause of action against Square, Inc., the trial court's denial of Plaintiffs' request to amend their petition is moot.

DECREE

For the foregoing reasons, we vacate the trial court's judgment that sustained the exceptions of no cause of action and no right of action filed by Square, Inc. and dismissed Plaintiffs' action against Square, Inc. We remand the matter to the trial court for further proceedings. Square, Inc. is assessed the costs of this appeal.

JUDGMENT VACATED; REMANDED

      Haven filed an action on an open account against Plaintiffs in district court case number 765-654. That matter was consolidated with the instant case.

      Evidence not properly and officially offered and introduced into evidence cannot be considered on appeal, even if it is physically placed in the record. Roubion Shoring Company, LLC , supra .


text:
    JAMES B. NUTTER & COMPANY v. Vivian Lands KENNER
    NO. 19-CA-13
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, JAMES B. NUTTER & COMPANY, Tabitha Mangano, Scott W. Anderson
    COUNSEL FOR DEFENDANT/APPELLANT, ERIC KENNER AND AMOS KENNER, Eric Kenner
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellants, Eric Kenner and Amos Louis Kenner, appeal the district court's judgment denying their "Petition for Temporary Restraining Order and Request for Permanent Restraining Order" [sic ] to restrain St. John the Baptist Parish Sheriff's Department from transferring title to certain property and dismissing their petition with prejudice. For the following reasons, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

This matter involves collection on a reverse mortgage entered into by Vivian Lands Kenner, who died on May 24, 2015. According to Ms. Kenner's will, all her property is bequeathed to appellant, Eric Kenner, one of her grandchildren. On July 20, 2015, Eric Kenner was appointed as the Independent Testamentary Executor of the Succession of Vivian Lands Kenner. Appellant, Amos Louis Kenner, is one Ms. Kenner's children and is contesting her will but was not named an heir to any of her property. Significantly, there is no signed judgment of possession in the Succession of Vivian Lands Kenner recognizing the successors to her property. The property at issue in this matter is located at 1601 Grant Street, LaPlace, Louisiana, in St. John the Baptist Parish (also referred to as "the Grant Street property").

On April 7, 2009, Ms. Kenner entered into a Home Equity Conversion Mortgage ("HECM"), more commonly referred to as a "Reverse Mortgage," which encumbered property located at 1601 Grant Street, LaPlace, Louisiana 70068 with James B. Nutter & Company ("JBNC"). The HECM provided that should the borrower die, JBNC had the right to demand immediate full repayment of the loan.

After Ms. Kenner passed, by letter dated August 14, 2015, JBNC demanded immediate full repayment of the loan pursuant to the HECM provisions. Because payment was not made, on October 6, 2015, JBNC filed a petition for executory process, seeking a writ of seizure and sale directing the Sheriff of St. John the Baptist Parish to seize, after due advertisements, delays, requisites and formalities (except for those expressly waived) and to sell for cash and without benefit of appraisement, the property located at 1601 Grant Street, LaPlace, Louisiana. According to the petition for executory process, the amount due totaled $ 92,565.19. On October 7, 2015, the district court ordered that a writ of seizure and sale issue, directing the Sheriff of St. John the Baptist Parish to seize and sell the Grant Street property to enforce JBNC's claim.

After a due and diligent search, the Sheriff was unable to serve Eric Kenner in his capacity as executor of the Succession of Vivian Lands Kenner with the writ of seizure and sale. According to the motion to appoint curator and an affidavit attached thereto by a foreclosure processor for Jackson & McPherson, L.L.C., the Sheriff reported that he was unable to serve Eric Kenner because "defendant refused to take the paperwork." The affidavit also states that Jackson & McPherson, L.L.C. "attempted to verify a new address for defendant by running a full and complete internet search" but found that the only known address for Eric Kenner was the Grant Street property address. Consequently, on or about October 22, 2015, a Notice of Seizure was posted at the Grant Street property notifying Eric Kenner of the seizure of the Grant Street property and the scheduled sale on December 9, 2015. This scheduled sale did not take place.

On November 5, 2015, the court appointed a curator ad hoc who attempted to locate Eric Kenner and serve him with the petition for executory process, but was unable. On December 4, 2015, the district court issued an order that (1) deemed the curator good and sufficient; (2) deemed his duties and efforts sufficient and relieved him of his duties as curator ad hoc ; and (3) ordered payment to him for acting as curator ad hoc .

On June, 16, 2016, another notice of seizure was posted on the Grant Street property notifying Eric Kenner of the sale of that property for August 3, 2016. On August 4, 2016, a notice to creditors and other interested parties of judicial seizure of property was issued informing creditors, including River Parish Financial Services, L.L.C., in Lutcher and Section of Housing & Urban Development in Washington, D.C., that the property located at 1601 Grant Street would be seized and sold on August 17, 2016.

On August 2, 2016, Eric Kenner contacted counsel for JBNC to inquire about the foreclosure proceedings. At the time, he notified counsel that he was living in the house. A sale of the property was originally scheduled for August 17, 2016, but on August 16, 2016, Eric Kenner filed for Chapter 13 bankruptcy and the sale was cancelled. Eric Kenner's bankruptcy was subsequently dismissed as fraudulent and the sale was therefore rescheduled for May 17, 2017. On May 17, 2018, JBNC purchased the Grant Street property at a sheriff's sale for $ 45,000.

On May 15, 2017, Amos Louis Kenner filed pro se for Chapter 13 bankruptcy. Appellants assert that this bankruptcy proceeding operated as an automatic stay under 11 U.S.C.A. Sec. 362a to the judicial sale of Ms. Kenner's property. There is nothing in the record to reflect that this automatic stay existed or to show that JBNC received notice of Amos Louis Kenner's bankruptcy.

On May 25, 2017, Eric Kenner and Amos Louis Kenner filed a petition for temporary restraining order and request for permanent restraining order in the Fortieth Judicial District, St. John the Baptist Parish, against JBNC. The petition requested a temporary restraining order be issued to the Sheriff's Office to prohibit transfer of the title and/or funds from the sheriff's sale because of the automatic bankruptcy stay that was in effect at the time of the May 17, 2017 sheriff's sale due to Amos Louis Kenner's bankruptcy filing.

After a hearing on June 29, 2017, the district court denied the petition for temporary restraining order and request for permanent restraining order and dismissed it with prejudice. The district court found that the Sheriff did nothing improper by proceeding with the sale, as it was under no prohibition by any court order or bankruptcy stay which would prevent this sale. This appeal followed.

ASSIGNMENTS OF ERROR

Appellants assert that the trial court erred (1) in not recognizing the U.S. District Court's Bankruptcy Stay that was automatically in place in the bankruptcy filed by Amos Louis Kenner; and (2) in allowing the proceedings to go forward without having service perfected upon appellants Eric Kenner and/or Amos Louis Kenner.

LAW AND ANALYSIS

Appellants assert that the bankruptcy proceedings filed by Amos Louis Kenner operated as an automatic stay to the sale of the property under 11 U.S.C.A. Sec. 362a. This statute provides that a "petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of:

* * *
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;

Based on this, appellants assert that the district court should not have allowed the sheriff's sale and transfer of the Grant Street property to proceed.

In Joshua Inv. Corp. v. Home Sales Counseling, Inc., 39,251 (La. App. 2 Cir. 1/19/05), 892 So.2d 151, 159, writ denied, 05-0442 (La. 4/29/05), 901 So.2d 1066, and writ denied, 05-0795 (La. 5/20/05), 902 So.2d 1051, an action to rescind tax sale deeds, the appellate court found that because during the course of the bankruptcy, the appellant had given up any ownership interest it had in the property when the automatic stay was lifted, appellant failed to present any evidence why these otherwise valid sales should be annulled. In addition, the U.S. District Court for the Eastern District of Louisiana has recognized that an automatic bankruptcy stay does not apply to property over which the debtor has no ownership interest. See In re Pitre, No. 95-2263, 1996 WL 8100 (E.D. La. Jan. 9, 1996).

Appellants assert that because Amos Louis Kenner filed bankruptcy the day before the sale of the Grant Street property, this should have stayed the sheriff's sale of that property. Amos Louis Kenner, however, has no ownership interest in the Grant Street property because there is no judgment of possession in Ms. Kenner's succession, nor is he an apparent legatee or heir to any of her property. Thus, any bankruptcy stay in his name does not affect the Grant Street property and cannot operate to prevent a sheriff's sale of succession property to enforce a succession debt.

In addition, there is nothing in the record to indicate that JBNC had any notice or knowledge of the bankruptcy proceeding filed by Amos Louis Kenner. Because Amos Louis Kenner is not the borrower on the mortgage at issue, nor has he any ownership interest in the mortgaged property (the Grant Street property), there would be no reason to notify JBNC of his bankruptcy.

For the foregoing reasons, we find that the bankruptcy proceedings filed by Amos Louis Kenner did not operate to stay any sale or transfer by St. John the Baptist Sheriff's Office of the Grant Street property. This assignment of error lacks merit.

Appellants further assert that the sale of the Grant Street property should not have proceeded because they were never properly served with any citation regarding the judicial sale of the Grant Street property. As Amos Louis Kenner has no ownership interest in the property and is not named as a legatee in Ms. Kenner's will, there is no basis for him to have received notice of the sale.

Regarding Eric Kenner, the record shows that the Sheriff's Office attempted to serve him with the notice of seizure and sale at the Grant Street property, but that he refused service. A notice of seizure was therefore posted at the Grant Street property. In addition, appellee moved for, and the district court appointed, a curator ad hoc who attempted to locate and serve Eric Kenner, but was unable to do so. La. C.C.P. art. 5091. A curator is an officer of the court appointed to ensure the defendant's due process rights are protected. See La. C.C.P. arts. 5094 and 5095 ; Sec. Homestead Ass'n v. Fuselier, 591 So.2d 335, 341 (La. 1991), holding modified by Citizens Sav. & Loan Ass'n v. Kinchen, 622 So.2d 662 (La. 1993). The attorney appointed to represent the absentee is charged with using reasonable diligence to communicate with the defendant and to inform him of the pending and nature of the proceeding. La. C.C.P. art. 5094. After the curator ad hoc made efforts to locate and serve Eric Kenner, the district court issued an order deeming the curator and his efforts good and sufficient and relieving him of his duties. Given these circumstances, we find no error in the district court's determination that the Sheriff did nothing improper in proceeding with the sale of the Grant Street property. Thus, this assignment of error lacks merit.

DECREE

For the reasons discussed above, we affirm the district court's judgment denying appellants' petition for temporary restraining order and request for permanent restraining order and dismissing the petition with prejudice.

AFFIRMED

      A reverse mortgage loan allows borrowers typically aged 62 plus to tap into their home equity to fund some of their retirement needs.


text:
    John A. MONTALBANO and his Wife Phyllis Montalbano v. Nicholas J. PERSICH, M.D., Christopher N. Barrilleaux, M.D., et al
    Phyllis Montalbano, et al v. Nicholas J. Persich, M.D., Christopher N. Barrilleaux, M.D., et al
    NO. 18-CA-602 18-CA-603
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, PHYLLIS MONTALBANO, LISA M. PECQUET AND JOHN A. MONTALBANO, JR., INDIVIDUALLY AND IN THEIR CAPACITY AS THE SUBSTITUTED PLAINTIFFS FOR THE CLAIM OF JOHN MONTALBANO, Thomas B. Calvert
    COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2 FOR THE PARISH OF JEFFERSON, STATE OF LOUISIANA D/B/A EAST JEFFERSON GENERAL, THE LOUISIANA PATIENT'S COMPENSATION FUND AND THE LOUISIANA PATIENTS' COMPENSATION FUND OVERSIGHT BOARD, Conrad Meyer, Charles O. Taylor, Sarah H. Christakis
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Appellants/plaintiffs, Phyllis Montalbano, Lisa M. Pecquet, and John A. Montalbano, Jr., appeal the trial court's February 19, 2019 judgment granting summary judgment in favor of appellee/defendant, the Louisiana Patient's Compensation Fund ("the PCF"), on behalf of nominal defendant, East Jefferson General Hospital ("EJGH"), dismissing appellants' medical malpractice and wrongful death claims against the PCF with prejudice. For the reasons stated herein, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 28, 2008, John Montalbano, Sr. was admitted to EJGH by Dr. Christopher N. Barrilleaux after complaining of severe mid-epigastric abdominal pain with a history of nausea and vomiting. On November 29, 2008, an MRI showed that Mr. Montalbano had a 1.5 cm stone in his common bile duct in the head of the pancreas. On November 30, 2008, Dr. Barrilleaux performed an emergency endoscopic retrograde cholangiopancreatography (ERCP) procedure on Mr. Montalbano. Prior to the beginning of the procedure, Mr. Montalbano was diagnosed with sepsis. Dr. Barrilleaux performed a biliary sphincterotomy and a large amount of sludge, debris and one large stone was removed. Dr. Barrilleaux was unable to remove another large stone due to Mr. Montalbano's instability from bradycardia. A biliary stent was placed in the bile duct. Once the endoscope was withdrawn "asystole was noted," CPR was started, and after treatment and intubation to improve ventilation, Mr. Montalbano was brought to ICU. Unfortunately, Mr. Montalbano suffered an anoxic encephalopathy with profound neurological deficits. Mr. Montalbano remained at EJGH until January 6, 2009.

On March 31, 2011, Mr. Montalbano and his wife Phyllis Montalbano filed a medical malpractice lawsuit against several defendants, including EJGH. As to EJGH, plaintiffs contended that EJGH's nursing staff breached the standard of care of hospitals rendering care and treatment to Mr. Montalbano and this breach resulted in the alleged injuries to Mr. Montalbano. Specifically, plaintiffs claimed that EJGH's nursing staff failed to timely notify defendant, Dr. Barrilleaux, "as to the signs and symptoms of severe disease apparent from the presentation of Mr. Montalbano." During the litigation, Mr. Montalbano passed away and Ms. Montalbano was substituted as the proper party plaintiff.

On January 24, 2013, Mrs. Montalbano and Mr. Montalbano's natural children, Lisa M. Pecquet and John A. Montalbano, Jr. filed a wrongful death lawsuit against the same defendants in the medical malpractice lawsuit, including EJGH's nursing staff. On April 3, 2013, the medical malpractice and wrongful death lawsuits were consolidated.

On September 8, 2016, plaintiffs, Mrs. Montalbano, Ms. Pecquet, and Mr. Montalbano, Jr., entered into a settlement agreement with EJGH, which was approved by the trial court, wherein EJGH agreed to settle its liability with plaintiffs pursuant to La. R.S. 40:1231.4, et seq. with a reservation of rights to plaintiffs to proceed against the PCF and the remaining defendants.

On June 8, 2018, the PCF filed a motion for summary judgment arguing that EJGH's nursing staff complied with the applicable standard of care and that plaintiffs did not have the expert testimony necessary to establish that EJGH's nursing staff breached the standard of care, or that any alleged breach caused any damages, in accordance with La. R.S. 9:2794. The PCF argued that the medical review panel opinion was prima facie evidence of the panel's finding that EJGH's nursing staff did not breach the standard of care. Additionally, the PCF attached excerpts from several medical experts' depositions, alleging that all of the experts, including plaintiffs' expert, found that EJGH's nursing staff did not breach the standard of care. The PCF pointed out that in his deposition, plaintiffs' expert, Dr. Peter Cotton, stated "I don't think I've stated the nurses breached the standard of care." Therefore, the PCF argued that it established that there was an absence of factual support for one or more elements essential to appellants' claims and accordingly, it was entitled to judgment as a matter of law.

In opposition, appellants argued that the evidence established that EJGH's nursing staff breached the applicable standard of care. Appellants contended that the original allegations against EJGH's nursing staff were derived from Dr. Barrilleaux's first deposition testimony in 2010, wherein he stated that based on a review of the medical records, he disagreed with the nursing note that stated the nurses called him on multiple occasions. In the 2010 deposition, Dr. Barrilleaux also testified that he was unhappy with the nurses because "they called [him] at 08:45 about this patient who appeared to have been demented and having low blood pressure issues throughout the early part of the night or early morning hours." When asked why he would have wanted to know about Mr. Montalbano's condition earlier, Dr. Barrilleaux stated "so I could get started doing things earlier." Dr. Barrilleaux testified that he would have wanted to know earlier about Mr. Montalbano's condition on November 29, 2008 when it was noted that Mr. Montalbano was "confused and in bed" because that would have made him "worry" that Mr. Montalbano "had progressed in sepsis." He testified that had he known earlier, he would have made "sure he's in an ICU if he wasn't already.... And then probably set up things to have the ERCP done earlier in the morning." Appellants contended that Dr. Barrilleaux's 2010 deposition testimony was highly critical of the nursing staff and its failure to communicate earlier to him critical information about Mr. Montalbano's condition throughout the night and earlier morning hours prior to Mr. Montalbano's emergency ERCP. Appellants additionally submitted Dr. Cotton's expert report, attached as an exhibit to his deposition, wherein he stated that EJGH's nursing staff breached the applicable standard of care by failing to communicate appropriate information to Dr. Barrilleaux and that this was a substantial factor in Mr. Montalbano's demise. In anticipation of the PCF's argument that Dr. Barrilleaux subsequently changed his former opinion of the nursing staff in a second deposition in 2016 by stating that the nursing staff did not breach any standard of care, appellants argued that by its contradictory nature, Dr. Barrilleaux's deposition testimony in 2010 and 2016 created a genuine issue of material fact precluding summary judgment.

The trial court granted the PCF's motion for summary judgment against plaintiffs, Phyllis Montalbano, Lisa Pecquet, and John Montalbano, Jr., dismissing with prejudice all of plaintiffs' claims against the PCF in the medical malpractice and wrongful death lawsuits. In granting the summary judgment, the trial court stated the following:

This Court finds that the Louisiana Patient's Compensation Fund has shown an absence of factual support for the plaintiff's claims through the following:
The Medical Review Panel opinion, the deposition testimony of Dr. Gary Reiss, the deposition testimony of Dr. Reddy, the deposition of Dr. Hunt, among other things. And at this point, the plaintiff did not provide this court with sufficient evidence to show that the plaintiff would be able to carry its [sic] evidentiary burden of proof at trial in particular plaintiff's own expert Dr. Cotton testified in his deposition that page 85, Line 22 that, quote, I don't think I've stated the nurses breached the standard of care. Furthermore, at that same deposition, on page 86, Lines 8-15, Dr. Cotton testified that it was true that he could not state the time that he believed the nursed [sic] breached the standard of care nor could he point the one point in the medical records where he found such a breach. For all of the following reasons, again, this Court grants the motion for summary judgment on behalf of Louisiana Patient's Compensation Fund.

This appeal followed.

LAW AND ANALYSIS

On appeal, appellants argue that the trial court erred (1) in granting the PCF's motion for summary judgment because genuine issues of material fact exist precluding summary judgment; and (2) by allowing the uncertified, unauthenticated medical review panel opinion into evidence.

A motion for 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 trial court may only consider those documents filed in support of or in opposition to the motion for summary judgment. La. C.C.P. art. 966 D(2). The only documents that may be filed in support of or in opposition to the motion for summary judgment are "pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966 A(4).

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966 D(1). However, if the movant will not bear the burden of proof at trial, the movant's burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party's claim, 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. Id. If the adverse party fails to produce factual support sufficient to establish a genuine issue of material fact, summary judgment should be granted. Id.

In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 236. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, 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. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765 ; Smith, 639 So.2d at 751. In determining whether the evidence creates a genuine issue of material fact, the trial court cannot make credibility determinations, evaluate testimony, or otherwise weigh the evidence. See Smith, 639 So.2d at 751 ; Janney v. Pearce, 09-2103 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078. If a party submits admissible expert opinion evidence in opposition to a motion for summary judgment, and it is sufficient to allow a reasonable trier of fact to conclude that the expert's opinion on a material fact more likely than not is true, the trial court should deny the motion. Independent Fire Ins. Co., 755 So.2d at 235 n. 4.

In a medical malpractice claim, the plaintiff bears the burden of proving (1) the degree of care ordinarily practiced by physicians in the defendant physician's specialty, (2) that the defendant either lacked this degree of skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and (3) that as a proximate result of the breach the plaintiff suffered injuries that would not otherwise have been incurred. La. R.S. 9:2794 A; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883-884 ; Fischer v. Megison, 07-1023 (La. App. 5 Cir. 5/27/08), 986 So.2d 95, 101. Because of the complex medical and factual issues involved, a plaintiff in most cases will need expert testimony to sustain his burden of proving his claim under La. R.S. 9:2794's requirements. Pfiffner v. Correa, M.D., 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228.

Appellate courts review the granting of summary judgment de novo , using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 996.

Upon de novo review of the record, we find a genuine issue of material fact exists as to when or if Dr. Barrilleaux was notified of Mr. Montalbano's condition. Based on Dr. Barrilleaux's deposition testimony in 2010 and 2016, a reasonable trier of fact could conclude that EJGH's nursing staff breached the standard of care in failing to notify Dr. Barrilleaux of Mr. Montalbano's condition and that Mr. Montalbano sustained damages therefrom. As there was clearly conflicting evidence, a genuine issue of material fact exists in this case precluding summary judgment. It is apparent from the record that the trial court was presented with competing evidence and erroneously made credibility determinations, weighing the conflicting evidence. Because credibility determinations are reserved for the trier of fact, and having found that a genuine issue of material fact exists, we reverse the trial court's judgment granting summary judgment in favor of the PCF.

Because we find upon de novo review that the trial court erred in granting summary judgment in favor of the PCF because genuine issues of material fact exist, we pretermit discussion of appellants' second assignment of error.

DECREE

For the reasons stated above, the trial court's judgment granting summary judgment in favor of the Louisiana Patient's Compensation Fund is reversed and the matter is remanded for further proceedings.

REVERSED; REMANDED

      On February 14, 2019, this Court ordered the trial court to amend its original July 23, 2018 judgment to contain the appropriate and necessary decretal language for a valid, final judgment. The trial court accordingly amended its judgment on February 19, 2019.

      John A. Montalbano and his wife, Phyllis Montalbano versus Nicholas J. Persich, M.D., Christopher N. Barrilleaux, M.D. and Jefferson Parish Hospital Service District No. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital, case number 699-966, Division "N."

      Phyllis Montalbano, Lisa M. Pecquet and John A. Montalbano, Jr., in their capacity as individuals pursuant to La. Civil Code Art. 2315.2 versus Nicholas J. Persich, M.D., Christopher N. Barrilleaux, M.D. and Jefferson Parish Hospital Service District No. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital, case number 723-208, Division "B."

      In support of its motion for summary judgment, the PCF submitted the following exhibits: (1) medical review panel opinion; (2) excerpts from the deposition of Gary Reiss, M.D.; (3) excerpts from the deposition of Peter Cotton, M.D.; (4) excerpts from the deposition of Neelima Reddy, M.D.; (5) excerpts from the second deposition of Christopher Barrilleaux, M.D., dated June 8, 2008; and (6) excerpts from the deposition of John Hunt, M.D. In response to appellants' motion to strike, the PCF agreed to withdraw Dr. Hunt's November 3, 2015 report and the affidavit of Kendra M. Barrier, R.N., Ph.D.

      Appellants also made additional arguments, not necessary for our analysis, as to other testimony and evidence that would allegedly support a breach of the standard of care and preclude summary judgment in favor of the PCF.

      In support of their opposition to the motion for summary judgment, appellants submitted the following documents: (1) the certified medical record of Mr. Montalbano's discharge summary from March 2008; (2) in globo excerpts from the deposition of John Hunt, M.D.; (3) nursing round notes from November 29, 2008 - December 1, 2008; (4) in globo excerpts from the certified medical record from EJGH, admit date November 28, 2008; (5) in globo excerpts from the deposition of Christopher Barrilleaux, M.D., dated October 10, 2010; (6) in globo excerpts from the deposition of Christopher Barrilleaux, M.D., dated June 8, 2016; (7) in globo excerpts from the deposition of Dawn M. Seghers, LPN, dated August 20, 2013; (8) in globo excerpts from the deposition of Keione Wilson Jackson, dated April 8, 2014; (9) in globo excerpts from the deposition of Neelima Reddy, M.D.; and (10) in globo excerpts from the deposition of Peter Cotton, M.D., dated August 22, 2016; including his report, date October 13, 2015.


text:
    Shelly N. BENJAMIN v. OCHSNER HOSPITAL
    NO. 19-CA-12
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
   COUNSEL FOR PLAINTIFF/APPELLANT, SHELLY N. BENJAMIN, J. Michael Daly, Jr.

COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER HOSPITAL, Don S. McKinney, Diana C. Surprenant, Mary K. Peyton

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

GRAVOIS, J.

In this medical malpractice suit, plaintiff, Shelly Benjamin, appeals a trial court judgment which granted a motion for summary judgment filed by defendant, Ochsner Clinic Foundation (hereinafter "Ochsner"), finding that she failed to bear her burden of proof that Ochsner breached the standard of care when treating her for pelvic fractures. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 2012, Shelly Benjamin was involved in a one-car accident and was transported to St. Tammany Hospital for medical care. Thereafter, on December 1, 2012, Ms. Benjamin was transferred to Ochsner Medical Center in Jefferson, Louisiana, where she was treated for, among other things, pelvic fractures. After physical therapy and ambulation, and assessment via x-rays, Ms. Benjamin's physicians determined that no operative treatment would be pursued because her pelvis remained stable. She remained at Ochsner for three weeks until she was transferred back to St. Tammany Hospital for one week of rehab. On January 31, 2013, Ms. Benjamin sought treatment from Dr. Paul Gladden at Tulane Hospital regarding complaints of hip pain. According to Ms. Benjamin, Dr. Gladden advised her that her hip had been dislocated in the accident, but too much time had since passed and nothing could be done to correct her anatomical abnormality. She was told that more damage was caused when she was allowed to ambulate on her leg.

Subsequently, on December 23, 2013, Ms. Benjamin filed a medical malpractice claim with the Louisiana Division of Administration, Patient's Compensation Fund, against "Ochsner Hospital and its employed physicians," alleging that Ochsner breached the applicable standard of care and caused Ms. Benjamin's damages. On February 11, 2016, the medical review panel issued a unanimous opinion finding that Ochsner did not breach the applicable standard of care.

On May 2, 2016, Ms. Benjamin filed this civil suit against Ochsner for the alleged negligent treatment of her pelvic fractures by its employed physicians and/or staff. Nearly two years later, on March 27, 2018, Ochsner filed a motion for summary judgment seeking to have the claims against it dismissed. Ochsner asserted that Ms. Benjamin could not prevail at trial because she could not offer expert testimony to meet her burden of proof against Ochsner. In response to discovery propounded by Ochsner seeking information as to Ms. Benjamin's expert, Ms. Benjamin named her treating physician, Dr. Gladden, as her expert witness. However, Ochsner asserted in its motion for summary judgment that in Dr. Gladden's deposition, he did not opine as to any breach in the standard of care, but rather opined that it was a judgment call as to whether to treat Ms. Benjamin operatively or non-operatively. In support of its motion, Ochsner introduced the opinion of the medical review panel that had previously considered Ms. Benjamin's claims and had found no breach in the standard of care. Ochsner also introduced the affidavit of Dr. Robert Shackleton, an orthopedic surgeon and member of the medical review panel, who opined that although Dr. Gladden recommended a different treatment approach from Ochsner's, both treatment approaches were within the standard of care and both treatment approaches had their own risks.

In response, Ms. Benjamin filed a motion to continue Ochsner's motion for summary judgment and/or opposition to summary judgment. In her response, Ms. Benjamin argued that she had produced an expert in this matter - Dr. Gladden. She argued that Dr. Gladden opined that Ochsner breached the applicable standard of care by allowing Ms. Benjamin to ambulate, thus applying pressure to her hip, and that this expert testimony is sufficient to deny Ochsner's motion for summary judgment. She further argued that she has always contended that the Ochsner staff violated the instructions given by the treating physicians by allowing Ms. Benjamin to ambulate and place too much weight on her hip. Though given a list of numerous nurses who were involved in Ms. Benjamin's overall care, Ms. Benjamin continuously requested the specific names of the nursing staff who assisted her when ambulating. Without knowing the identity of these individuals and without taking their depositions, she argued that this matter could not move forward. Therefore, Ms. Benjamin requested that the motion for summary judgment be denied and/or continued until such time that these depositions could be taken.

In response, the trial court continued the hearing on the motion for summary judgment from May 7, 2018 to July 3, 2018. After the hearing on July 3, 2018, the trial court rendered a written judgment on July 31, 2018, granting Ochsner's motion for summary judgment and dismissing Ms. Benjamin's claims with prejudice. In its written reasons for judgment, the trial court found there to be an absence of factual support that Ochsner's conduct fell below the applicable standard of care. The trial court stated that Ms. Benjamin could not offer expert testimony to meet her burden of proof against Ochsner. The trial court found that Ochsner had carried its burden of proof as required by law. This appeal followed.

LAW AND ANALYSIS

On appeal, Ms. Benjamin first argues that the trial court erred in granting Ochsner's motion for summary judgment because she identified an expert, Dr. Gladden, who testified that if in fact Ms. Benjamin was allowed to put too much weight on her leg, this could cause her damages and would constitute a breach of the applicable standard of care.

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). 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. La. C.C.P. art. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co ., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Sarasino v. State Through Department of Public Safety and Corrections , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 928. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp. , 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

In a medical malpractice action, such as the instant case, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. La. R.S. 9:2794 ; Pfiffner v. Correa , 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228. Therefore, unless the case involves some obvious act from which a lay person can infer negligence, such as amputating the wrong limb or leaving a sponge in a patient's body, the absence of expert testimony as to any of the essential elements of the plaintiff's malpractice claim will preclude the imposition of liability. Gonzales v. Ochsner Clinic Found ., 14-873 (La. App. 5 Cir. 5/14/15), 170 So.3d 1099, 1103, citing Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880 and Silvain v. Saer , 09-1103 (La. App. 5 Cir. 10/12/10), 49 So.3d 516. This requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Britt v. Taylor , 37,378 (La. App. 2 Cir. 8/20/03), 852 So.2d 1128, 1133.

Ms. Benjamin's medical records, attached to Ochsner's motion for summary judgment and filed under seal, indicate that Ms. Benjamin was being treated at Ochsner for pelvic fractures. Her December 4, 2012 treatment plan states that she was to be out of bed and ambulate, and she was to continue working with physical therapy using "TTWB", i.e. , toe touch weight bearing. Films would be ordered of the pelvis after she ambulated, and if there were any changes or if she could not ambulate secondary to extreme pain, operative intervention would be considered. The medical record states that "[a]s of right now, we hope to avoid any surgery." On December 6, 2012, x-rays were ordered to assess the pelvis. The records note that if her pelvis was stable and had not moved, the physicians would feel more comfortable in saying that her pelvis is less likely to shift. If her pelvis moved with ambulation, the physicians noted that they may have to operate to stabilize the pelvis. The medical records of December 7, 2012 indicate that x-rays were reviewed, and the physicians were not going to pursue any operative treatment since her pelvis was stable. The plan was for Ms. Benjamin to continue her current treatment, and they would reassess in two weeks to see how her pelvis looked.

Both parties introduced excerpts from Dr. Gladden's deposition taken on December 9, 2014 in support of their arguments. Dr. Gladden testified that there was a difference in Ms. Benjamin's x-rays taken after the accident and those taken when he treated her. The difference was that the "ring has shifted and healed in a malunited position." He surmised that it got there because it got displaced. Dr. Gladden testified that based on the findings in her films, he would not have allowed Ms. Benjamin to be weight-bearing. He stated that he personally would not have allowed her to ambulate, and instead he might have put her on bed rest and then evaluated her a bit more. He would have likely considered surgery due to the nature of the "sacral fracture on the back." When asked if it would be reasonable to treat a stable pelvic fracture non-operatively, he testified: "Yes, if it's where it should be and it looks like it's going to stay where it should be, it would be very reasonable to not look to do surgery." Regarding the standard of care, it was stated:

Q: Let me ask you this: Although you have opined on what you would do personally, you're not opining on the standard of care, is that true?
A. The standard of care - pelvis injuries are very difficult because the goal is a healed, normally-shaped pelvis. How you get there can either be surgery, which has its own risks, or non-operatively, which has its own risks.
It's not - unfortunately, you can't look at a patient and say, you're going to displace and you're not going to displace. So I tend to be very conservative because I see the things that go poorly sometimes because they usually get sent to me. And so I don't walk a lot of people. I do a lot of pelvic surgery sometimes in an effort to make sure there's not any risk of displacement.
Q. So would it be fair to say then that it's a judgment call?
A. It is.

Finally, Dr. Gladden stated that "most people who have got an orthopedic trauma fellowship and deal with a lot of pelvises" would have been very concerned about stability of Ms. Benjamin's fractures and likely "not weight bear them and made sure it was stable in some way, possible operated on."

Upon review, we do not find that Dr. Gladden's testimony is sufficient to create a genuine issue of material fact. When questioned about the standard of care, Dr. Gladden specifically testified that the decision to treat a pelvic fracture operatively or non-operatively is a judgment call. Though he did testify that he would have treated Ms. Benjamin differently, he does not testify that Ochsner's treatment constituted a breach of the standard of care. Thus, we find that this evidence fails to produce factual support sufficient to establish that Ms. Benjamin will be able to prove at trial the applicable standard of care, a breach thereof, or causation. Accordingly, upon de novo review, we find that Ochsner showed an absence of support for Ms. Benjamin's medical malpractice claim. Thereafter, Ms. Benjamin did not produce factual support in the form of expert testimony needed to support her claims. Accordingly, summary judgment in favor of Ochsner was appropriate.

Ms. Benjamin also argues that the trial court failed to recognize that there are allegations against the staff at Ochsner, specifically, allegations about whether the nursing staff and/or physical therapy staff adhered to the recommendations of the physicians. As such, Ms. Benjamin sought the names of the individuals who provided such care. When she was given a list of over 30 witnesses, she requested that Ochsner narrow down the list so that she could take the depositions of the appropriate individuals; however, this never occurred. Ms. Benjamin contends that the trial court erred in not allowing the depositions to occur prior to ruling on the motion for summary judgment.

A defendant's motion for summary judgment may be made at any time. La. C.C.P. art. 966(A)(1). The trial court has the discretion to render summary judgment, if appropriate, or to allow further discovery. Sibert v. National Oilwell Varco, L.P ., 48,789 (La. App. 2 Cir. 2/26/14), 136 So.3d 283, 291. The parties must be given the opportunity to conduct "adequate discovery" to present their claims. Id . ; La. C.C.P. art. 966(A)(3). However, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Flowers v. Wal-Mart Stores, Inc. , 12-140 (La. App. 5 Cir. 7/31/12), 99 So.3d 696, 702. The only requirement is that the parties be given a fair opportunity to present their claims, and unless a plaintiff shows probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact. Johnson v. Littleton , 45,323 (La. App. 2 Cir. 5/19/10), 37 So.3d 542, 548. The mere contention of an opponent that he lacks sufficient information to defend a summary judgment motion and that he needs additional time to conduct discovery is insufficient to defeat the motion. Williams v. A Day to Remember Invitations, L.L.C ., 06-757 (La. App. 5 Cir. 3/13/07), 956 So.2d 30, 33.

Ochsner's motion for summary judgment was filed nearly two years after suit was filed in this case. In her opposition to the motion for summary judgment, Ms. Benjamin requested a continuance in order that she may conduct further discovery. In response, the trial court delayed the hearing on the motion by almost two months. Upon review and under the particular facts and circumstances of this case, we find no evidence that Ms. Benjamin has not been afforded a fair opportunity to carry out discovery and present her claims. We find that the trial court did not abuse its wide discretion in considering and ruling on the subject motion for summary judgment without allowing Ms. Benjamin further discovery.

Finally, Ms. Benjamin argues that a genuine issue of material fact remains in this case as to whether the staff at Ochsner failed to comply with the physicians' orders. Ms. Benjamin argues that she was allowed to ambulate and place too much weight on her leg. Further, she argues that the physicians only recommended "toe touch ambulation," and according to Ms. Benjamin's testimony, this did not occur. Thus, based upon her own testimony, Ms. Benjamin argues that a genuine issue of material fact remains precluding summary judgment. Furthermore, she argues that no expert is needed to prove that a failure to comply with physicians' orders is a breach of the standard of care.

Upon review, we find that Ms. Benjamin has failed to provide any factual support or evidence to support her argument that the staff failed to follow the physicians' orders and that material facts are still at issue. Accordingly, we find no merit to this argument.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment granting Ochsner's motion for summary judgment and dismissing Ms. Benjamin's claims with prejudice.

AFFIRMED

      In her petition for damages, Ms. Benjamin named "Ochsner Hospital" as the only defendant. The suit was answered by the correct entity, "Ochsner Foundation Clinic."

      The record on appeal contains only the four pages of Ms. Benjamin's medical records that were attached to Ochsner's motion for summary judgment and admitted at the hearing on the motion.