author: PENZATO, J. HOLDRIDGE, J., concurring.

text:
    Gustave J. LABARRE, Jr, et al. v. OCCIDENTAL CHEMICAL COMPANY AND TEXAS BRINE COMPANY, LLC, et al.
    2017 CA 1370 2017 CW 0756
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018 Rehearing Denied July 17, 2018
    Leopold Z. Sher, New Orleans, James M. Ganer, Peter L. Hilbert, Jr., New Orleans, Neal J. Kling, New Orleans, Jeffrey D. Kessler, New Orleans, Louisiana, Robert Ryland Percy, III, Gonzales, Louisiana, Travis J. Turner, Baton Rouge, Gonzales, Louisiana, Eric J. Mayer, Houston, Texas, Attorneys for Appellant/ Defendant/Third-Party Plaintiff, Texas Brine Company, LLC
    Frank H. Spruiell, Jr., Reid A. Jones, Seth M. Moyers, Shreveport, Louisiana, Attorneys for Appellant/ Defendant/Third-Party Plaintiff, Sol Kirschner
    Thear J. Lemoine New Orleans, Louisiana Attorney for Appellee/ Third-Party Defendant, National Surety Corporation
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant/third-party plaintiff, Texas Brine Company, LLC (Texas Brine), appeals the trial court's judgment granting summary judgment in favor of appellee/third-party defendant, National Surety Corporation (National Surety), and dismissing its claims. For the reasons that follow, we reverse the trial court.

FACTS AND PROCEDURAL HISTORY

The underlying litigation in this matter involves the 25-acre sinkhole in Assumption Parish that resulted when the site of a former brine well, known as the Oxy Geismar Well No. 3 (OG3) collapsed. Texas Brine originally drilled OG3 on land owned by Occidental Chemical Corporation (Oxy) in 1982, in order to produce salt from the Napoleonville Salt Dome (Salt Dome), which lies beneath Oxy's land. In 1983, Oxy leased a part of its land to Colorado Crude Company (Colorado Crude Lease) for the purpose of drilling an oil well. In 1986, an oil well was drilled and became known as Hooker # 1 Well.

Numerous plaintiffs filed suit against several defendants, including Texas Brine, for damages to their property. In the course of the litigation, Texas Brine filed an Amended Incidental Demand Against Operators and Lessees of the Hooker # 1 Well. Sol Kirschner was named as a third-party defendant as a prior operator and/or lessee of Hooker # 1 Well, along with several other co-lessees and joint operators. Texas Brine asserted that Mr. Kirschner held an interest in commercial drilling operations near the site of the sinkhole. Texas Brine also claimed that the Salt Dome was breached during the drilling and/or operation of Hooker # 1 Well, which shared a common wall with the OG3 cavern. Texas Brine alleged that Mr. Kirschner was a party to the mineral leases under which the Hooker # 1 Well was operated, including the Colorado Crude Lease, and that he is liable with his co-lessees to Texas Brine under the Colorado Crude Lease. Texas Brine later amended its incidental demand to add National Surety as a third-party defendant and alleged that it is entitled to damages and other forms of relief from National Surety pursuant to an insurance policy issued to Mr. Kirschner.

National Surety issued premier insurance policies with homeowner's and excess coverage for Mr. Kirschner's Dallas, Texas home, including the premises and its contents. The policies included both a homeowner's primary policy, with liability limits of $500,000 (Primary policy), and an excess policy, with liability limits of $5,000,000 (Excess policy). National Surety filed a motion for summary judgment seeking a declaration that the applicable policies of insurance excluded coverage for business activities, which would exclude alleged losses associated with Mr. Kirschner's interest in commercial drilling operations near the site of the sinkhole. National Surety maintained that Texas Brine would be unable to carry its burden of proving that the operations at the Hooker # 1 Well were not business activities, and thus were excluded from coverage. National Surety argued that the Hooker # 1 Well did not constitute a covered incidental business such that the narrow exceptions to the business activities exclusion would apply. In opposition, Texas Brine argued that the policies issued by National Surety were expansive and deluxe offerings, which afforded greater protection to its insureds than a typical homeowner's policy. It was further urged by Texas Brine that there were genuine issues of material fact precluding summary judgment.

This matter was heard by the trial court on February 1, 2017, and taken under advisement. On April 20, 2017, the trial court issued its reasons for judgment as well as a judgment, which granted the summary judgment in favor of National Surety, but did not dismiss any party or claims. Texas Brine filed a notice of intent to apply for supervisory writ, but the trial court denied the request for a return date. Despite the denial of the trial court, Texas Brine filed its writ application with this court on June 2, 2017, which was assigned No. 2017-CW-0756. Texas Brine also filed a petition for devolutive appeal of the April 20, 2017 judgment, which was granted on May 31, 2017. In light of Texas Brine's filing for supervisory writ, National Surety filed a motion to amend the judgment to include appropriate decretal language on June 5, 2017. On June 28, 2017, the trial court issued an amended judgment granting National Surety's motion for summary judgment and dismissing the claims of Texas Brine against National Surety with prejudice. The trial court issued an order for devolutive appeal of the amended judgment on July 14, 2017. This court referred the writ to the panel to which the appeal was assigned. Labarre, et al. v. Occidental Chemical Company and Texas Brine Company, LLC, 2017-0756 (La. App. 1 Cir. 8/22/17) (unpublished writ action).

The April 20, 2017 judgment was not a final judgment as it did not contain any decretal language. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. The June 28, 2017 amended judgment cured the defect in the decretal language by dismissing the claims of Texas Brine against National Surety with prejudice. The amended judgment dismissed the suit as to less than all the parties and granted the motion for summary judgment. Therefore, the June 28, 2017 amended judgment is immediately appealable as a partial final judgment pursuant to La. C.C.P. art. 1915(A)(1) and (A)(3). Accordingly, we maintain the appeal and dismiss the writ application as moot.

SUMMARY JUDGMENT

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750-51.

The burden of proof rests with the mover. If the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. 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).

"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). Moreover, as observed by the Supreme Court in Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014),

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact 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.

A motion for summary judgment is a proper procedural device for determining "whether an insurance policy, as a matter of law, provides or precludes coverage." Dixon v. Direct General Insurance Company of Louisiana, 2008-0907 (La. App. 1 Cir. 3/27/09), 12 So.3d 357, 360.

LAW AND DISCUSSION

The Insurance Policy

National Surety issued policy NZT 02566668 to Mr. Kirschner, providing both primary and excess coverage, subject to certain terms, conditions, and exclusions. The Primary policy provided homeowner's coverage for the premises and the contents of Mr. Kirschner's home, as well as personal liability. However, the personal liability section of the Primary policy excluded coverage for business activities. "Business" is defined by the policy as "an occupation, employment, trade, profession, or other activity performed in exchange for money or other compensation, including farming or ranching operations and property rental." The Primary policy contains an exception to the exclusion of business activities for an "incidental business." An "incidental business" is defined as:

[S]elf-employment or other employment of any insured that:
a. produces a gross annual income of less than $10,000 in cash or value;
b. is not farming or ranching; and
c. does not involve the employment of others.

The Excess policy is a "follow form" policy, which only covers damages to the extent they are covered by the Primary policy. The Excess policy also excludes coverage for losses attributable to an insured's business activities. Unlike the Primary policy, the Excess policy contains no exception to the business activities exclusion for an incidental business.

Trial Court Reasoning and Burden of Proof

The trial court issued written reasons for granting National Surety's motion for summary judgment as follows:

The Court finds that the National Surety Policies exclude liability coverage for business activities. The Court also finds that the narrow exception to the exclusion of the National Surety Primary Policy that reinstates coverage for "incidental businesses" does not apply. The evidence on the National Surety Summary Judgment Motion conclusively and without contradiction shows that the Hooker # 1 Well involved dozens of employees and infers that the Hooker # 1 Well produced gross annual income of more than $9,999.99. This was a commercial enterprise, involving numerous employees. This is far from the type of incidental business that might be [expected] from the "business activities" exclusion.
Texas Brine has not produced sufficient summary judgment evidence to show genuine issues of material facts as to whether or not the business exclusion applies to exclude coverage for alleged losses associated with Mr. Kirschner's involvement in these commercial drilling operations.

We also note that the trial court specifically stated, "Texas Brine cannot meet its burden in proving that the operations at Hooker # 1 Well were not business activities." We disagree.

Texas Brine first argues that trial court incorrectly placed the burden of proof on Texas Brine, rather than on National Surety. An insurer bears the burden of proof on a motion for summary judgment that an exclusion applies. If an exception is met, the exclusion does not apply. The insurer retains the burden of proving that the exception is not met in order to show that the exclusion does apply. Veuleman v. Mustang Homes, LLC , 2013-190 (La. 4/5/13), 110 So.3d 572, 573 ; see Feierabend v. Starns, 2006-1386 (La. App. 1 Cir. 5/4/07), 961 So.2d 1196, 1198. National Surety argues that the 2016 amendments to La. C.C.P. art. 966(D) implicitly superseded Veuleman. Louisiana Code of Civil Procedure article 966(D)(1) places the burden of proof on the mover. Even if the mover would not bear the burden of proof at trial, he must 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. Even after the 2016 amendment to Louisiana Code of Civil Procedure article 966, the courts have placed the burden on the insurer to prove not only that an exclusion to the policy applies, but also that an exception to the exclusion is not present. Roadrunner Transportation Sys. v. Brown , 2017-0040 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270-71, citing Veuleman , 110 So.3d at 573.

National Surety argues that the burden of proving the exception to the exclusion should be on Texas Brine, citing two cases in support of this proposition.

Tornabene v. Atlas Life Ins. Co., 295 So.2d 10, 12 (La. App. 4 Cir.), writ refused , 299 So.2d 360 (La. 1974), involved the applicability of the intentional act exclusion when the insured died from bullet wounds. The insurer contended that the intentional act exclusion precluded coverage. The trial court held that intentional act exclusion did not apply since the defendant insurer did not meet its burden of proof. The insurer was deemed to have the burden of proving that the killing was intentional and that the actual victim was the intended. The defendant insurer had shown neither of these factors so the finding of coverage was affirmed. Therefore, Tornabene is consistent with the current law that the insurer has the burden of proving an exclusion applies and does not place the burden on either the insured or a non-moving party. Gremillion v. Goleman, 316 So.2d 810, 818 (La. App. 1 Cir. 1975), involved whether there was proof of permission to bring a non-owner user of an insured automobile within the liability insurance coverage and placed the burden of proving permission on the party seeking coverage. This is in line with the jurisprudence holding that the party seeking coverage bears the burden of proving the policy provides coverage. See Miller v. Superior Shipyard and Fabrication , 2001-2683 (La. App. 1 Cir. 11/8/02), 836 So.2d 200, 203 (stating that an insurer seeking to avoid coverage must prove that some exclusion applies to preclude coverage; however, in determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy's terms). It appears that the jurisprudence has carved out an exception to this rule in the case of an exception to an exclusion: the insurer bears the burden of proving not only that the provision excluding coverage applies, but that there also are no other exceptions to the applicability of the exclusion which would render the exclusion inapplicable. Roadrunner Transportation Sys., supra.

The trial court clearly placed the burden on Texas Brine, rather than National Surety with regard to the exclusion and the exception to the exclusion. National Surety is the mover and will bear the burden of proof at trial on the issues of whether an exclusion applies and that an exception to the exclusion is not present. An insurer seeking to avoid coverage through summary judgment bears the burden of proving an exclusion applies to preclude coverage. Green v. Johnson, 2016-1525 (La. App. 1 Cir. 1/10/18), 241 So.3d 1188, 1191-92, 2018 WL 367649, *2. Therefore, we must determine if National Surety carried its burden of proof. If the exception applies, the exclusion does not apply and there would be coverage.

Interpretation of Insurance Policies

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Miller, 836 So.2d at 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Bernard v. Ellis, 2011-2377 (La. 7/2/12), 111 So.3d 995, 1002. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the parties as reflected by the words in the policy. La. C.C. art. 2045 ; Peterson v. Schimek, 98-1712 (La. 3/2/99), 729 So.2d 1024, 1028. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and the agreement must be enforced as written. La. C.C. art. 2046 ; Fouquet v. Daiquiris & Creams of Mandeville, L.L.C., 2010-0233 (La. App. 1 Cir. 9/13/10), 49 So.3d 44, 47.

Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy. La. R.S. 22:881. Each provision in the policy must be interpreted in light of the other provisions so that each is given meaning; one provision of the insurance contract should not be construed separately at the expense of disregarding other provisions. La. C.C. art. 2050 ; Peterson, 729 So.2d at 1029. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Peterson, 729 So.2d at 1029. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent. Peterson, 729 So.2d at 1029.

Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Bernard, 111 So.3d at 1002. If the policy wording at issue is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Bernard, 111 So.3d at 1002.

Business Activities Exclusion

Texas Brine assigned as error that the trial court erred in placing the burden on it to prove that the business activities exclusion applied. Texas Brine also assigned as error that the trial court erred in finding that no genuine issues of material fact exist as to whether the business activities exclusions of the National Surety policies excluded coverage for the alleged losses associated with Mr. Kirschner's involvement in commercial drilling operations. National Surety apparently takes the position that this argument is abandoned since Texas Brine does not offer any argument or cite any law in support of its contention as to the applicability of the business activities exclusion. See Uniform Rules, Courts of Appeal, Rule 2-12.4 ; see also Shilling ex rel. Shilling v. State ex rel. Dept. of Transp. and Development, 2005-0172 (La. App. 1 Cir. 12/22/05), 928 So.2d 95, 99 n. 1, writ denied, 2006-0151 (La. 4/24/06), 926 So.2d 541. We do note that other than mentioning that the trial court placed the burden on Texas Brine, rather than National Surety, Texas Brine does not contest the applicability of the exclusion. However, as we stated above, the burden is on National Surety to prove the applicability of an exclusion, and Texas Brine assigned this as an error, even though its argument is very brief. Therefore, we must determine if National Surety carried its burden as to the applicability of the exclusion.

National Surety did submit its insurance policies into evidence. Both the Primary policy and the Excess policy provide exclusions for business activities. "Business" is defined in both policies as an "occupation, employment, trade, profession, or other activity performed in exchange for money or other compensation, including farming or ranching operations and property rental." Numerous attachments to the pleadings offered in this matter exhibit that Mr. Kirschner's activities with regard to the Colorado Crude Lease and the drilling operations was for the "exchange [of] money or other compensation."

Interpreting the language of the insurance policy according to the rules set forth above, we agree with the trial court that the business activities exclusion applies in this matter. Since the Primary policy contains an exception to the business activities exclusion, and the Excess policy is a "follow form" policy, we must determine whether National Surety met its burden on summary judgment of establishing that the exception to the business exclusion is not applicable as a matter of law.

Incidental Business Exception

The remaining assignments of error involve the applicability of the incidental business exception to the business activities exclusion. Texas Brine argues that National Surety's policies provide specific coverage for certain business activities of Mr. Kirschner that met the definition of "incidental business." Texas Brine asserts that the claims being made fall within the policy definition of "incidental business," because: (1) there was no evidence that Mr. Kirschner received a gross annual income of more than $10,000 in cash or value; (2) the activity was not farming or ranching; and (3) Mr. Kirschner did not have any direct employees in this business.

The Primary policy requires four elements for an activity to meet the definition of an "incidental business." There must be (1) self-employment or other employment of any insured; (2) that produces a gross annual income of less than $10,000 in cash or value; (3) is not farming or ranching; and (4) does not involve the employment of others.

On January 6, 2017, National Surety filed its motion for summary judgment attaching an affidavit of Thear J. Lemoine, the attorney in this matter for National Surety, with attached documents, and an affidavit of Erika Aljens, Vice President, Casualty, for Chubb North American Claims, authorized claims handler for National Surety, attaching the policies at issue in this matter. The documents attached to the Lemoine affidavit include several pleadings: (1) Texas Brine's Amended Answer and Amended Incidental Demands dated September 1, 2015, containing attachments; (2) Texas Brine's Motion to Substitute National Surety as Liability Insurer of Sol Kirschner; and (3) Texas Brine's Amended Incidental Demand Against the Operators and Lessees of the Hooker # 1 Well, containing attachments. The Lemoine affidavit also included deposition excerpts of Robert Konecny, a landman and Land Manager for Browning Oil Company, Inc. (Browning Oil) between 1990 and 1997, and deposition excerpts of Willie Jean Draves Caldwell. On the same date that the motion for summary judgment was filed, National Surety filed a supplemental affidavit of Mr. Lemoine attaching excerpts from both Browning Oil and Colorado Crude Company (Colorado Crude), operators of Hooker # 1 Well, to National Surety's responses to interrogatories and requests for production of documents.

All of the above documents were attached to either the affidavit of Ms. Aljens or the first and second affidavits of Mr. Lemoine, the attorney of record for National Surety. Initially, we point out that La. C.C.P. art. 967(A) provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Affidavits offered in support of or in opposition to a motion for summary judgment shall be made on personal knowledge and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Schexnaildre v. State Farm Mut. Auto. Ins. Co., 2015-0272 (La. App. 1 Cir. 11/9/15), 184 So.3d 108, 116, citing La. C.C.P. art. 967(A) ; Mapp Construction, LLC v. Southgate Penthouses, LLC, 2009-0850 (La. App. 1 Cir. 10/23/09), 29 So.3d 548, 563-64, writ denied, 2009-2743 (La. 2/26/10), 28 So.3d 275. Personal knowledge encompasses only those facts that the affiant saw, heard, or perceived with his own senses. Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202 (La. App. 1 Cir. 2/12/10), 35 So.3d 334, 349, writ denied, 2010-0715 (La. 6/4/10), 38 So.3d 302.

All of the documents attached to the first and second affidavits of Mr. Lemoine fell into the category of those documents acceptable to be attached to a motion for summary judgment, without the necessity of an affidavit. La. C.C.P. art. 966(A)(4). Therefore, even though the first and second affidavits of Mr. Lemoine are insufficient summary judgment evidence, there is no requirement for any of the referenced documents to be attached to an affidavit, all of which were sufficient summary judgment evidence.

Also on January 6, 2017, National Surety filed an affidavit and purported expert opinion report of Michael P. Sapourn, an independent licensed Florida Insurance Agent and/or Adjuster, offering his opinion that the policies issued by National Surety to Mr. Kirschner do not cover liability for energy drilling operations that he opined is a business activity, and that energy drilling does not constitute an incidental business. The record reveals that there was no objection as to Mr. Sapourn testifying as an expert. Louisiana Code of Civil Procedure article 966(D)(2) states that the court shall consider any document to which no objection is made. In this case, the trial court stated in its reasons for judgment that Mr. Sapourn's affidavit and opinion report were admissible and considered. There are only two issues to be decided in this matter: whether the business activities exclusion applies, and whether the incidental business exception to the exclusion applies. We have closely examined the affidavit of Mr. Sapourn and find that his testimony consisted of legal opinions and conclusions of law. We also note that ultimate or conclusory facts or conclusions of law are not to be utilized on a summary judgment motion. Thompson v. South Central Bell Tel. Co. , 411 So.2d 26, 28 (La. 1982). Interpretation of an insurance contract is a matter of law. Maldonado v. Kiewit Louisiana Co., 2013-0756 (La. App. 1 Cir. 3/24/14), 146 So.3d 210, 218. It is in the trial court's province to interpret an insurance contract and exclude an expert witness's opinion as to how the policy should be interpreted. See Benton Specialties, Inc. v. Cajun Well Serv., Inc., 2009-506 (La. App. 3 Cir. 2/10/10), 31 So.3d 1155, 1162, writ denied, 2010-0951 (La. 6/25/10), 38 So.3d 343. Therefore, this court declines to defer its province in the interpretation of this policy of insurance to the opinions of an expert as to the ultimate legal conclusions in this case.

Our review reveals that none of the documents attached to the first and second affidavits of Mr. Lemoine filed with the motion for summary judgment established the absence of a genuine issue of material fact regarding the application of the incidental business exception, which required proof of the following: (1) self-employment or employment; (2) production of a gross annual income of less than $10,000 in cash or value; and (3) that the business not involve the employment of others. The only parameters addressed in the original documents are that the activity involved was not farming or ranching and that Mr. Kirschner was not employed by the Hooker # 1 Well.

The summary judgment evidence that was sufficiently before the trial court included responses to written discovery of both Browning Oil and Colorado Crude, operators of Hooker # 1 Well, that their "relationship" with Mr. Kirschner was defined by the Model Form Operating Agreement dated December 16, 1985 (Lease Agreement). This Lease Agreement was between McCuistion Minerals Corp., Sol Kirschner, and Frank Yantis, and Adams Resources Exploration Corp., HECI Exploration Company, Retrust Oil & Gas Corp., and Robert Henderson, concerning the sale and purchase of an undivided leasehold working interest in certain leases and the drilling of an oil and gas well (now known as the Hooker # 1 Well). Browning Oil responded to interrogatories that Mr. Kirschner was not its employee after raising general objections.

Even if the above evidence is sufficient to find that Mr. Kirschner was not employed with regard to Hooker # 1 Well, there is no evidence as to whether self-employment was involved. National Surety also offered no evidence as to whether Mr. Kirschner had any employees.

On appeal, National Surety attempts to address the issue that Mr. Kirschner was not an employee of Hooker Well # 1 by relying on the affidavit of Jill Kirschner, his wife, which was offered by Texas Brine in opposition to National Surety's motion for summary judgment. Mrs. Kirschner testified by affidavit, that Mr. Kirschner was elderly and had a medical condition which affected his memory. Mrs. Kirschner testified that she was aware that Mr. Kirschner purchased some interest in an oil and gas lease located in Louisiana, which is where Hooker # 1 Well is located. Mr. Kirschner signed the Lease Agreement on December 16, 1985. Mrs. Kirschner admitted that the Lease Agreement was signed before she met Mr. Kirschner and that she had no personal knowledge of the lease or the purchase. She also testified that when she and Mr. Kirschner met, he was employed as a broker who sold bonds to banks or to savings and loans. She stated that is was her understanding that he was not licensed to sell "equities" nor oil and gas interests. She further stated that he never earned his livelihood in the oil and gas business. Mrs. Kirschner testified that as far as she was aware, Mr. Kirschner did not have any employees with regard to the oil and gas lease he owned in Louisiana. She further asserted that "[t]he best information I have been able to find" was that Mr. Kirschner "once owned a small fractional interest in the Louisiana oil and gas lease," but "never went to Louisiana in this regard, and was never consulted by any operator or other person about decisions regarding such lease or any wells thereon."

The record reveals that there was no objection made to the affidavit of Mrs. Kirschner, and therefore, it must be considered by the court. La. C.C.P. art. 966(D). However, as we stated earlier, affidavits offered in support of or in opposition to a motion for summary judgment shall be made on personal knowledge and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Schexnaildre, 184 So.3d at 116, citing La. C.C.P. art. 967(A) ; Mapp Construction, LLC, 29 So.3d at 563-64. Personal knowledge encompasses only those facts that the affiant saw, heard, or perceived with his own senses. Berard, 35 So.3d at 349. The affidavit of Mrs. Kirschner does not reveal that she had personal knowledge of Mr. Kirschner's activities with regard to the Lease Agreement and does not address whether he was self-employed in this venture. Therefore, even considering the affidavit of Mrs. Kirschner, there exists genuine issues of material fact regarding the exception to the business activities exclusion.

Apparently recognizing that there was no evidence as to the incidental business exception of the business activities exclusion, on January 17, 2017, National Surety filed a motion for leave to supplement the record and for judicial notice, noting that the motion for summary judgment hearing was set for February 1, 2017. National Surety claimed that on January 12, 2017, documents were produced to it by Texas Brine and attached a third affidavit of Mr. Lemoine. This third affidavit of Mr. Lemoine attaches a "true and correct copy of an email" from Christopher T. Chocheles, an attorney representing Texas Brine; "a true and correct copy of documents [Texas Brine] produced on January 12, 2017"; and "a true and correct copy of data from the United States Energy Information Administration on dollars per barrel for crude oil prices" (all referred to as secondary documents). National Surety claimed that the documents were late-produced by Texas Brine and that the trial court could take judicial notice of the crude oil prices. Exhibit 1 is an email from an attorney on the case to a number of different people regarding the upcoming deposition of Mike Veazey and documents he would presumably have at the deposition. Exhibit 2 appears to be documents that Mr. Veazey would rely upon at the deposition. As we discussed above, affidavits offered in support of or in opposition to a motion for summary judgment shall be made on personal knowledge and shall show affirmatively that the affiant is competent to testify on the matters stated therein. Schexnaildre, 184 So.3d at 116.

Texas Brine did file an opposition to the motion to supplement the record and for judicial notice. Texas Brine claimed that all documents had to be filed "with" the motion for summary judgment and that the supplemental documents were not filed until January 16, 2017. La. C.C.P. art. 966(B)(1). As to Exhibits 1 and 2, Texas Brine objected as to the timeliness, relevance, and accuracy of the documents. Texas Brine also asserted that judicial notice of the crude oil prices was improper.

The motion for summary judgment and all documents in support must be filed and served on all parties not less than 65 days prior to the trial. La. C.C.P. art. 966(B)(1). Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion. La. C.C.P. art. 966(B)(2). Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum. La. C.C.P. art. 966(B)(3). As to the timing, nothing in La. C.C.P. art. 966 forbids a moving party from filing permissible documents as long as they are served 65 days prior to trial. There is nothing in the record evidencing that any trial date was ever set in this matter. Therefore, the trial court did not err in permitting the filing of the documents attached to the third affidavit.

However, the documents attached to the third affidavit must be competent summary judgment evidence. As we are conducting a de novo review, we note that attaching documents to an affidavit of an attorney on the case, not the keeper of the records, and designating the records as a "true and correct copy" does not authenticate, certify, or make them admissible. Exhibits 1 and 2 attached to Mr. Lemoine's third affidavit are not competent summary judgment evidence. Exhibit 1 is a copy of an email from Christopher T. Chocheles, an attorney representing Texas Brine. The email was sent to numerous individuals, including Mr. Lemoine, and stated that Mr. Chocheles was attaching documents to be used by Mike Veazey at a deposition the following day. Exhibit 2 appears to be documents that Mike Veazey purported to use at his deposition. These documents are not authenticated and, therefore, are hearsay. See La. C.E. arts. 901(A) & (B)(1); La. C.E. arts. 801 & 802; see also Bach v. Board of River Port Pilot Commissioners, 2015-765 (La. App. 5 Cir. 5/12/16), 193 So. 3d 355, 370 (explaining that the recipient of a letter attached to an email was not the proper witness to authenticate the letter, particularly since he was not the author). No deposition of Mr. Veazey is attached. This court cannot determine if Mr. Veazey ever testified by deposition or if he actually referred to Exhibit 2; and further, there is no explanation as to the information contained therein. Therefore, we do not consider any of the documents listed as Exhibits 1 and 2 attached to the third affidavit of Mr. Lemoine.

The parties argue concerning the requirement of the incidental business exception with regard to whether the Hooker # 1 Well produced a gross annual income of less than $10,000 in cash or value. National Surety's argument is that the incidental demand against Mr. Kirschner states that between 1986 and July 2, 2001, the Hooker # 1 Well extracted 208,076 barrels of oil and 128,745 m.c.f. of natural gas. National Surety then argues that the crude oil prices it attached to Mr. Lemoine's third affidavit, Exhibit 3, prove that Hooker # 1 Well grossed more than $10,000 annually, and thus was not an incidental business. Texas Brine counters that judicial notice of the crude oil prices is not proper as it does not qualify as being "not subject to reasonable dispute in that it is ... [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." La. C.E. art. 201(B). Texas Brine also contends that the crude oil prices produced by National Surety may be evidence of how much the Hooker # 1 Well made, but the court would still have to extrapolate how much Mr. Kirschner, the insured, grossed annually.

Exhibit 3 is a "copy of data from the United States Energy Information Administration on dollars per barrel for crude oil prices." Besides the testimony of Mr. Lemoine that this is a "true and correct copy," there is no authentication or certification of this document. See La. C.E. arts. 901(A) & (B)(1). National Surety requested the trial court to take judicial notice of the crude oil prices provided in Exhibit 3. Texas Brine argued at the trial court level and on appeal that judicial notice of Exhibit 3 is improper based on La. C.E. art. 201(B).

Louisiana Code of Evidence article 201 provides, in pertinent part:

B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1) Generally known within the territorial jurisdiction of the trial court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Pursuant to this article, courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Perez v. Evenstar, Inc., 2012-0941 (La. App. 4 Cir. 1/30/13), 108 So.3d 898, 905. We recognize that courts routinely take notice of public market prices, data and trends. See, e.g., In re VeriFone Sec. Litig., 784 F.Supp. 1471, 1475 n.2 (N.D. Cal. 1992), aff'd, 11 F.3d 865 (9th Cir. 1993) (taking judicial notice of the daily closing prices of common stock); In re Avista Corp. Sec. Litig., 415 F.Supp.2d 1214, 1217-18 (E.D. Wash. 2005) (noting that "taking judicial notice of well-publicized stock prices and general market trends is permissible in a motion to dismiss" and taking judicial notice of Dow Jones Utility Average, a publicly price-weighted index of the fifteen largest, most-liquid New York Stock Exchange-listed utility stocks); Plevy v. Haggerty , 38 F.Supp.2d 816, 821 (C.D. Cal. 1998) (contents of tabular representation of corporation's stock price proper subject matter of judicial notice); Trevino v. United States, 804 F.2d 1512, 1518 (9th Cir. 1986) (taking judicial notice that 1974-1982 were "aberrational" years, marked by double-digit inflation and extreme oil prices, and thus should not be used by court as standard to adjust award of damages to predict effects of inflation). However, even if we agreed with the trial court that judicial notice of the crude oil prices could be taken, the evidence submitted by National Surety does not preclude a finding of genuine issue of material fact.

It is undisputed that Mr. Kirschner owned a 2.250% interest in the Hooker # 1 Well. The Hooker # 1 Well began operation in 1986. It was plugged and abandoned in 2010, but the extraction of oil and gas ceased in August 2001. National Surety asserts that the allegation that 208,076 barrels were extracted between 1986 and July 2, 2001, is sufficient to determine that Hooker # 1 Well, rather than Mr. Kirschner, grossed more than $10,000 annually. The crude oil price information submitted by National Surety is for a yearly average beginning 1996. There is no information for the years 1986-1995. There has been no summary judgment evidence as to the number of barrels of oil or the amount of gas extracted each year. Exhibit 3 does not provide information as to the price of gas for any year. The Primary policy provides that the self-employment or employment must produce less than $10,000 a year to the insured for the exception to apply. With no information as to how many barrels were extracted a year, a court cannot determine how much Mr. Kirschner grossed annually. For instance, if only 10,000 barrels of oil were extracted in 1998 when oil was $10.87 a barrel, the Hooker # 1 Well would have only made $108,700 that year. Mr. Kirschner's 2.250% interest would have been worth $2,445.75 for that year, which is far less than $10,000. With no information other than the allegation that 208,076 barrels of oil were extracted between 1986 and July 2, 2001, we cannot make the leap that Mr. Kirschner grossed more than $10,000 annually from this well.

National Surety urges this court to determine that the Hooker # 1 Well made over $10,000 annually from these figures. However, a plain reading of the Primary policy defines an incidental business as "self-employment or other employment of any insured ..." (emphasis in original). Mr. Kirschner is the insured of the policies at issue, not Hooker # 1 Well. When the words of the insurance contract are clear and unambiguous, the contract must be enforced as written. Bernard , 111 So.3d at 1002.

There are genuine issues of material fact as to whether the incidental business exception to the business activities exclusion applies, and the granting of the motion for summary judgment is not appropriate at this time. National Surety did not carry its burden of proving that the exception to the exclusion does not apply. Thus, the burden never shifted to Texas Brine pursuant to La. C.C.P. art. 966(D)(1). Therefore, this court pretermits any discussion of the adequacy of the evidence submitted by Texas Brine. Based upon the evidence before us, we cannot determine that the incidental business exception to the business activities exclusion does not apply. Therefore, we must reverse the trial court's granting of the summary judgment as there are genuine issues of material fact.

CONCLUSION

For the above and foregoing reasons, the June 28, 2017 amended judgment granting summary judgment on behalf of appellee/third-party defendant, National Surety Corporation and dismissing the claims of appellant/third-party plaintiff, Texas Brine Company, LLC, is reversed. The case is remanded to the trial court for further proceedings. All costs of this appeal are assessed against appellee/third-party defendant, National Surety Corporation.

REVERSED AND REMANDED; WRIT DISMISSED AS MOOT.

Holdridge J. concurs for reasons assigned

Higginbotham J. concurs

HOLDRIDGE, J., concurring.

I concur in the result. While I believe the dismissal of Mr. Kirschner makes this matter moot, I recognize that the dismissal judgment is on appeal and is not yet final and definitive. Therefore, I am in agreement with reversing the trial court's judgment and remanding this matter back to the trial court. In the event that the appellate or supreme court reverses the trial court's judgment and allocates a percentage of fault to Mr. Kirschner, National Surety Corporation may re-urge its motion for summary judgment. If the judgment of the trial court is not reversed, then the judgment dismissing Mr. Kirschner is final and Texas Brine's claim becomes moot.

      We note that Sol Kirschner, third-party plaintiff, appealed the original judgment dated April 20, 2017. Mr. Kirschner has filed a brief as an appellant adopting by reference the brief of Texas Brine. However, although Texas Brine appealed the amended judgment dated June 28, 2017, at issue in this matter, the record contains no appeal of the amended judgment by Mr. Kirschner. Therefore, we refer only to Texas Brine as the appellant.

      Hooker Chemical & Plastics Corp. was the predecessor in interest to Oxy.

      Texas Brine had previously amended its incidental demands to name several insurers as third-party defendants, but National Surety was not made a third-party defendant at that time.

      The record before this court contains only the minutes from the February 1, 2017 hearing and not the transcript, which was not designated as part of the record by the appellant.

      A trial court is divested of its jurisdiction over all matters in cases that are reviewable under the appeal when the order of devolutive appeal is granted. La. C.C.P. art. 2088. The jurisdiction of the appellate court attaches on the granting of the order of appeal; the order of appeal is premature if it is granted before the trial court disposes of all timely filed motions for new trial. La. C.C.P. arts. 2088(A), 2087(D). Our courts have recognized that a pleading, regardless of its caption, constitutes a motion for new trial if it requests a substantive modification of the judgment and is filed within the delays applicable to a motion for new trial. Lane v. Lane, 2015-1572, at *3 (La. App. 1 Cir. 2/26/16) 2016 WL 770832 (unpublished), citing, Katz v. Katz, 412 So.2d 1291, 1293 (La. 1982) (holding that a motion to amend a judgment to add language dismissing certain defendants constituted a motion for new trial); Town of Vinton v. Sonnier, 98-676 (La. App. 3 Cir. 10/28/98), 721 So.2d 992, 994, writ denied, 98-2972 (La. 1/29/99), 736 So.2d 836 (finding that a petition to modify a judgment was a motion for new trial); see also Rawls v. Domeray, 353 So.2d 414, 416 (La. App. 4 Cir. 1977) (rule to set aside a summary judgment deemed to be a motion for new trial); Pouncy v. Winn-Dixie Louisiana, Inc., 2014-496 (La. App. 5 Cir. 9/24/14), 150 So.3d 909, 912 (motion for reconsideration treated as a motion for new trial). Consequently, we treat the motion to amend the judgment as a motion for new trial, which the trial court did dispose of on June 28, 2017. Therefore, the order of devolutive appeal was not premature and we maintain jurisdiction over the amended judgment.

      The motion for summary judgment granted in this matter is not one granted under La. C.C.P. art. 966(E) since it does, in fact, dismiss a party from an action. Louisiana Code of Civil Procedure Article 966(E) provides that a "summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties."

      Louisiana Code of Civil Procedure Article 966 was amended by Acts 2015, No. § 422, and was effective January 1, 2016, so the amendment applies in this case since the motion for summary judgment was filed on January 6, 2017.

      From the deposition excerpts provided it is impossible to tell for whom Mr. Caldwell was testifying or his position with any firm.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    SALVADOR and Elvie Faldetta v. MAIN STREET FAMILY PHARMACY, L.L.C.
    NO. 2017 CA 1757
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Donald G. Cave, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellants, Salvador and Elvie Faldetta
    Deborah Deo Gracias Trahan, Covington, Louisiana, Attorney for Defendants/Appellees, Mohamed A. Elkersh, M.D. and Advanced Pain Institute, L.L.C.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The plaintiffs in this medical malpractice action appeal a summary judgment dismissing all claims against the remaining defendants. We affirm.

FACTS AND PROCEDURAL HISTORY

Salvador Faldetta was diagnosed with degenerative disc disease in his lumbar spine and sought treatment for prolonged low back pain with Dr. Mohamed A. Elkersh. At Dr. Elkersh's recommendation, Faldetta underwent transforaminal epidural steroid injections at L4, L5, and S1, administered by Dr. Elkersh at his clinic, Advanced Pain Institute Treatment Center. Post-procedure, Faldetta developed an infection in his lumbar spine at L4-L5 and possibly at L5-S1, referred to as "discitis." Shortly thereafter, as a result of a product recall, it was learned a solution used in the procedure may have been contaminated.

Faldetta and his wife, Elvie Faldetta, sued Main Street Family Pharmacy, L.L.C., which provided the solution used in the procedure. Faldetta also instituted a medical review panel proceeding against Dr. Elkersh and Advanced Pain Institute, L.L.C. After reviewing the evidence submitted, the medical review panel concluded Dr. Elkersh did not deviate from the standard of care in treating Faldetta. More specifically, the panel found Dr. Elkersh performed the procedure in a strict, sterile fashion; discitis is a known complication of a transforaminal epidural steroid injection; and there was no indication Dr. Elkersh deviated from the standard of care. The Faldettas then amended the petition filed against Main Street Family Pharmacy to include claims against Dr. Elkersh, alleging he negligently failed to ensure sterile conditions for the procedure, failed to ensure the medicine was not contaminated, improperly handled and stored the medicine, failed to train his staff to use the proper techniques for epidural injections, and injected the contaminated solution directly into, rather than outside, the lumbar disc.

Because Elvie Faldetta was not a party to the medical review panel proceeding, Dr. Elkersh and Advanced Pain Institute filed an exception of prematurity as to her claims. That exception was sustained, and Elvie Faldetta's claims were dismissed without prejudice in a judgment signed August 24, 2015. The Faldettas ultimately settled all their claims against Main Street Family Pharmacy, which were then voluntarily dismissed.

Dr. Elkersh and Advanced Pain Institute filed a motion for summary judgment seeking dismissal of the remaining claims and asserting Faldetta could not meet his burden of proof. In support of the motion, movers submitted the opinion of the medical review panel, authenticated by the affidavit of the attorney chairman. At Faldetta's request, the hearing on the motion was continued to allow an opportunity to depose Dr. Chad Domangue, one of Faldetta's treating physicians. Dr. Domangue was deposed, and both parties submitted excerpts of his deposition in connection with the motion. Faldetta also submitted excerpts of medical records produced during discovery.

At the hearing on the motion, the trial court found Faldetta failed to produce sufficient evidence to establish a breach of the standard of care and, in a judgment signed August 18, 2017, dismissed the claims against Dr. Elkersh and Advanced Pain Institute with prejudice. The Faldettas appeal, assigning as error the trial court's granting of the motion for summary judgment, and the trial court's August 24, 2015 judgment sustaining the exception of prematurity and dismissing Elvie Faldetta's claims without prejudice.

DISCUSSION

Motion for Summary Judgment

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show no genuine issue as to material fact and mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point to 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. Code Civ. Pro. art. 966D(1).

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence, the standard of care applicable to the defendant, a breach of that standard of care, and a causal connection between the breach and the claimed injury. See La. R.S. 9:2794A; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883-84. Expert testimony is generally required to establish the applicable standard of care and whether it was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha, 977 So.2d at 884 ; Pfiffner v. Correa , 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233-34.

By submitting the opinion of the medical review panel, Dr. Elkersh and Advanced Pain Institute adequately pointed out an absence of factual support for one or more elements essential to Faldetta's claim. The burden thus shifted to Faldetta to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the movers are not entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966D(1); Samaha, 977 So.2d at 888-89 ; Ballard v. Plantation Management Company, LLC , 11-1229, 2012 WL 992097, at *3 (La. App. 1 Cir. 3/23/12), writ denied, 12-1233 (La. 10/8/12), 99 So.3d 16 ; Addis v. State, 08-1232, 2009 WL 838491, at *2 (La. App. 1 Cir. 3/27/09).

Given the nature of the subject claims, Faldetta's burden of proof is governed by the general rule requiring expert evidence to establish the applicable standard of care and a breach thereof. The allegations present complex medical issues requiring knowledge of proper sterilization protocols for an invasive procedure, namely, a spinal injection ; the appropriate techniques and parameters for performing the procedure; and the known risks of the procedure. The resolution of those issues is beyond the province of a lay person without the aid of expert testimony. See Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002, 1008-09.

Faldetta contends he produced sufficient expert evidence to satisfy his burden of proof. Specifically, he maintains the evidence allows for a reasonable inference that Dr. Elkersh breached the standard of care by penetrating one or more of Faldetta's spinal discs with the injection needle during the procedure. To reach that conclusion, Faldetta first points out the infection involved the interior part of his spinal discs, which, as Dr. Domangue explained, are encapsulated or contained structures. According to Dr. Domangue, the infection could enter the discs in one of two ways: either the needle with the contaminated solution penetrated the discs, or the infection migrated through disc tears associated with the degenerative disease. Arguing that all reasonable inferences should be made in his favor, Faldetta contends this evidence sufficiently establishes Dr. Elkersh penetrated the discs with the needle during the procedure.

While that may be a reasonable inference, Dr. Domangue did not testify that penetrating the discs is a breach of the standard of care. Dr. Domangue explained that while the epidural space adjacent to a disc is the target, the needle can penetrate too far and enter the disc, producing what is known as a "wet tap" or spinal fluid back-flowing into the syringe. While Dr. Domangue described that anatomical area as "a different ballpark," he did not know if a "wet tap" occurred in this case and, more importantly, never testified it constitutes a breach of the standard of care. He merely described the procedure and identified the risk to explain how the infection may have entered the discs. Although factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. See Willis v. Medders , 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 ; Guillory v. The Chimes , 17-0479 (La. App. 1 Cir. 12/21/17), 240 So.3d 193, ---- (2017 WL 6522995, p. 4) ; Ritchey v. State Farm Mutual Automotive Insurance Company , 17-0233 (La. App. 1 Cir. 9/15/17), 228 So.3d 272, 279. Absent evidence establishing the applicable standard of care or a breach thereof, Dr. Domangue's testimony is not sufficient to create a genuine issue of material fact.

Faldetta also argues the trial court erred by not applying the doctrine of res ipsa loquitur, which permits the factfinder to infer negligence from the circumstances of the event. See Linnear v. CenterPoint Energy Entex/Reliant Energy , 06-3030 (La. 9/5/07), 966 So.2d 36, 41 ;

Cangelosi v. Our Lady of the Lake Regional Medical Center , 564 So.2d 654, 665 (La. 1989). In cases involving only circumstantial evidence, the doctrine may be applicable if the trial court sequentially determines (1) the injury is of the kind that does not ordinarily occur in the absence of negligence, (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or a third person, and (3) the alleged negligence of the defendant is within the scope of the defendant's duty to the plaintiff. Linnear , 966 So.2d at 43-44. The doctrine is not a substitute for factual evidence; it is applied after the factual evidence has been submitted, and then only if there is sufficient circumstantial evidence to suggest the only reasonable cause of the plaintiff's injury, in the context of a medical malpractice action, is the defendant's breach of the standard of care. Gisclair v. Bonneval , 04-2474 (La. App. 1 Cir. 12/22/05), 928 So.2d 39, 45.

The record indicates Faldetta's injury-discitis-can occur even in the absence of negligence. The medical review panel opinion confirms discitis is a known complication of a transforaminal epidural steroid injection. The written consent form signed by Faldetta identifies infection as a risk of the procedure. The evidence also fails to eliminate other more probable causes of the injury, most notably the purportedly contaminated solution provided by Main Street Family Pharmacy for use in the procedure. Based upon our de novo review, the trial court was correct in not applying the doctrine of res ipsa loquitur. See Gisclair , 928 So.2d at 45.

Faldetta alternatively asserts Dr. Elkersh failed to obtain his informed consent. In an action based on a failure to obtain informed consent, a plaintiff must prove the following four elements: (1) a material risk existed that was unknown to the patient, (2) the physician failed to disclose the risk, (3) disclosure of the risk would have led a reasonable patient in the patient's position to reject the medical procedure or choose another course of treatment, and (4) the patient suffered injury. See La. R.S. 40:1157.1 -1157.2; Snider v. Louisiana Medical Mutual Insurance Company , 13-0579 (La. 12/10/13), 130 So.3d 922, 929-30.

A claim for surgical malpractice and a claim for breach of the duty to obtain informed consent are distinct causes of action based upon different statutory duties. Raborn v. Albea , 16-1468 (La. App. 1 Cir. 5/11/17), 221 So.3d 104, 115 ; see also McGrew v. Waguespack , 14-0251 (La. App. 1 Cir. 12/30/14), 168 So.3d 690, 695 ; Lieux v. Mitchell , 06-0382 (La. App. 1 Cir. 12/28/06), 951 So.2d 307, 317, writ denied , 07-0905 (La. 6/15/07), 958 So.2d 1199. Although Louisiana does not require "theory of the case" pleading, to support recovery for lack of informed consent, the plaintiff's petition must set forth facts upon which such recovery can be based. See Raborn , 221 So.3d at 115-16 ; Lieux, 951 So.2d at 317. Faldetta's petition only alleges acts of medical negligence against Dr. Elkersh. The pleading neither references a claim for lack of informed consent nor asserts any facts supporting such a claim. The trial court did not err by not considering a claim that was not presented to the court. See Raborn , 221 So.3d at 115-16 ; Lieux , 951 So.2d at 317.

Lastly, Faldetta contends summary judgment is not appropriate because Dr. Elkersh failed to comply with Rule 9.10 of the Louisiana Rules for District Courts, which, in part, requires a memorandum in support of a motion for summary judgment to include a list of essential legal elements necessary for mover to be entitled to summary judgment, and a list of material facts the mover contends are not genuinely disputed. A trial court, in its discretion, may dispense with the strict application of the local rules when such is unnecessary to the resolution of a dispute. Jackson v. Suazo-Vasquez , 12-1377 (La. App. 1 Cir. 4/26/13), 116 So.3d 773, 779 ; Dan-Cin Construction Company, Inc. v. Thrasher , 08-1552 (La. App. 1 Cir. 2/13/09), 9 So.3d 205, 208. Based upon our review, Dr. Elkersh's memorandum sufficiently identifies the essential legal elements and undisputed facts as required by Rule 9.10, specifically Faldetta's failure to produce expert evidence establishing a breach of the applicable standard of care. See , 116 So.3d at 779. The assignments of error pertaining to the summary judgment are without merit.

Exception of Prematurity

In their final assignment of error, the appellants assert the trial court erred in sustaining an exception of prematurity and dismissing Elvie Faldetta's claims without prejudice. A judgment sustaining an exception of prematurity and dismissing a plaintiff's suit without prejudice is a final, appealable judgment. See La. Code Civ. Pro. art. 1915A(1); Keating v. Van Deventer , 14-0157 (La. App. 1 Cir. 9/19/14), 153 So.3d 1200, 1203, writs denied, 14-2188 (La. 1/9/15), 157 So.3d 1106 ; Houghton v. Our Lady of the Lake Hospital, Inc. , 03-0135 (La. App. 1 Cir. 7/16/03), 859 So.2d 103, 105. The judgment dismissing Elvie's claims was signed August 24, 2015. Notice of the judgment was mailed August 27, 2015. Elvie did not appeal the judgment. When an appellant fails to timely appeal a final judgment, the judgment acquires the authority of a thing adjudged, and a court of appeal has no jurisdiction to alter the judgment. See Tolis v. Board of Supervisors of Louisiana State University , 95-1529 (La. 10/16/95), 660 So.2d 1206, 1206-07 (per curiam ); Lay v. Stalder , 99-0402 (La. App. 1 Cir. 3/31/00), 757 So.2d 916, 919. Lacking jurisdiction to review the August 24, 2015 judgment, we do not consider the assignment of error directed thereto.

CONCLUSION

The August 18, 2017 summary judgment is affirmed. All costs of this appeal are assessed to Salvador and Elvie Faldetta.

AFFIRMED.

      The amending petition also added Advanced Pain Institute, L.L.C. and Advanced Pain Institute Treatment Center, L.L.C. as defendants. The claims against the latter were dismissed without prejudice in a judgment sustaining an exception of prematurity.

      No objections were made to any exhibits. Thus, under our de novo review, we consider all exhibits filed in connection with the motion. See La. Code Civ. Pro. art. 966D(2).


author: HOLDRIDGE, J.

text:
    STATE of Louisiana v. Michael J. DUFRENE
    2017 KA 1496
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered JUNE 4, 2018
    Patricia Parker Amos, Assistant District Attorney, Scott M. Perilloux, District Attorney, Amite, LA, Attorneys for Appellee, State of Louisiana
    Gwendolyn K. Brown, Baton Rouge, LA, Attorney for Defendant/Appellant, Michael J. Dufrene
    BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
   HOLDRIDGE, J.

The defendant, Michael J. Dufrene, was charged by bill of information with three counts of forgery, violations of La. R.S. 14:72(B) (counts 1-3); and one count of theft over $1,500.00, a violation of La. R.S. 14:67(B). He pled not guilty and, following a jury trial, was found guilty as charged on counts 1-3. On count 4, he was found guilty of the responsive offense of theft with a value of $750.00 or more, but less than $5,000.00. The defendant filed a motion for new trial and in the alternative postverdict judgment of acquittal, which were denied. For each of the forgery convictions, the defendant was sentenced to seven years imprisonment at hard labor. For the theft conviction, he was sentenced to three years imprisonment at hard labor. All sentences were ordered to run consecutively. The defendant made oral and written motions to reconsider sentence, arguing that consecutive sentences were illegally harsh. In granting the motion in part, the trial court ordered that the sentence for the theft conviction run concurrently, reducing the total length of the sentence from twenty-four to twenty-one years. The sentences for the forgery convictions were ordered to remain consecutive. The defendant again objected to the consecutive sentences, which the trial court noted. The defendant also filed a pro-se motion for amendment, modification or reconsideration of sentence, which was denied. The defendant now appeals, designating five assignments of error. We affirm the convictions and sentences.

FACTS

Douglas Jiles moved and recovered pool tables and restored vintage Rolex watches. A few times, David Raiford helped Douglas Jiles move pool tables. On one particular occasion, Raiford and Jiles were on a moving job at Central Avenue Billiards in Amite. While Jiles was in the building, Raiford went inside Jiles's truck in the back parking lot and took several of Jiles's blank personal checks and a Rolex watch that was in the ashtray. According to Jiles, the watch was worth about $2,600.00.

Raiford filled out three of Jiles's checks. In the "Pay to the order of" section, Raiford wrote in the name of the defendant, who was Raiford's friend. Raiford forged Jiles's signature on each of the checks. The checks were in the amounts of $950.00, $450.00, and $500.00. Raiford then gave the checks to the defendant to cash. Raiford also gave the defendant the Rolex watch he had stolen, to sell.

On December 22, 2014, the defendant cashed two of the checks at two different banks in Hammond. This same day, the defendant went to Gold Into Cash pawn shop in Hammond and sold the Rolex watch for $200.00. The next day, on December 23, 2014, the defendant cashed the third check at one of the banks he had gone to the day before. According to the defendant, he gave all of the cash to Raiford.

On January 13, 2015, the defendant went back to Gold Into Cash to try to sell a ring. The owner of the pawn shop called the police, and the defendant was arrested. Detective Antoine Vicknair, with the Hammond Police Department, interviewed the defendant that day regarding the checks he cashed and Rolex watch he had previously pawned. The defendant told the detective he did not realize that the checks he cashed were stolen or forged, and Raiford assured him the watch was not stolen, but belonged to Raiford's cousin or uncle.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In his first and second assignments of error, the defendant argues the evidence was insufficient to support the convictions for forgery. Specifically, the defendant contends the State failed to prove he knew the checks were forged when he cashed them. In his brief, the defendant stresses that he did not sign the three checks that he cashed. The defendant argues, specifically, that there was no evidence to show that he knew the checks were forged. With no evidence to prove this essential element (with intent to defraud) of the crime of forgery, the defendant avers, the convictions cannot stand. As such, the defendant argues, the trial court erred in denying the motion for postverdict judgment of acquittal. The defendant does not challenge his theft conviction.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jack son standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Patorno , 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. Id.

La. R.S. 14:72 provides in pertinent part:

A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.
B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.

Under the present circumstances, the defendant falls under the second paragraph of the forgery statute, since he both possessed and transferred the forged checks at the banks. The issue, thus, is whether the defendant did so with an "intent to defraud" and with knowledge that the checks were forged. See State v. Ford , 473 So.2d 931, 934 (La. App. 3rd Cir.), writ denied, 477 So.2d 1123 (La. 1985). The defendant contends that there was insufficient evidence presented at trial to show either that he had the intent to defraud or that he knew that the writing was forged.

Knowledge, like intent, must often be inferred from the totality of the circumstances of the transaction where it is an element of the crime charged. Ford , 473 So.2d at 934. The test of knowledge is not a subjective test, but rather a completely objective test, i.e. the offender is taken to know that which any reasonable person so situated would have known. Id. An intent to defraud is also an essential element of the offense of forgery. The criminal intent required for forgery is the intent to defraud any person, and it suffices if the forged instrument has prejudiced or might prejudice the rights of another. An intent to profit by the act is not a necessary element of the case. Moreover, specific intent is a state of mind and need not be proved as a fact but may be inferred from the circumstances and transactions of the case. State v. Marler , 428 So.2d 954, 956 (La. App. 1st Cir.), writ denied, 433 So.2d 151 (La. 1983). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan , 94-2503 (La. 11/25/96), 684 So.2d 382, 390. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue , 484 So.2d 889, 892 (La. App. 1st Cir. 1986).

The defendant's theory of innocence here is based on alleged ignorance; that is, he simply did not know he was cashing forged checks. According to the defendant, Raiford told him (the defendant) that the checks were payroll checks. When asked by Detective Vicknair why the checks were made payable to the defendant, the defendant notes in brief that he responded that he had been duped by Raiford into cashing the checks for him (Raiford)

because Raiford did not have any identification. During his interview, the defendant indicated that Raiford gave him the Rolex watch to pawn, and that Raiford had told him (the defendant) the watch was his uncle's or cousin's. When Detective Vicknair asked the defendant if he "really" believed that, the defendant responded, "Kind of. I'm gullible I guess." A juror could have reasonably discounted the defendant's assertion of mere ignorance or gullibility regarding his alleged lack of knowledge of what he was doing when he cashed three forged checks and sold a stolen watch at a pawn shop over a two-day period. His suggestion that he simply did not know any better strains the limits of plausibility, and the jury could have rationally concluded that the defendant's explanation was unreasonable and that he concocted his version of these crimes to hide his own guilt. See State v. Rault , 445 So.2d 1203, 1213 (La. 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984).

According to the defendant in his interview, Raiford had been working at a bar in Amite; and the defendant thought he was cashing "paychecks" for this work done by Raiford. That Raiford personally wrote in the defendant's name in the "Pay to the order of" portion of Jiles's checks, then signed the checks with Jiles's name, would have signaled to any reasonable person something was amiss; it was not unreasonable for the jurors to infer that the defendant should have been put on notice about very questionable actions being perpetrated by Raiford, particularly in light of the defendant's knowledge that Raiford had just recently been released from prison, and was on parole for check fraud. In his interview, it appeared clear the defendant had been aware of his own wrongdoing when, after agreeing to cash the first check, the defendant had told Raiford, "I'll do it this time."

Particularly telling of the defendant's awareness of his own wrongdoing is that he cashed three checks with three different tellers in two days, using two different banks. On the same day, December 22, 2014, the defendant went to two different branches of the Capitol One Bank, the Railroad Branch and the South Morrison Branch (both in Hammond) to cash checks, made payable to him, for $450.00 and $500.00 respectively. The following day, December 23, 2014, the defendant then went back to the South Morrison Branch and cashed a check, made payable to him for $950.00. Thus, on the first day, the defendant cashed two checks, which would have piqued the interest of any reasonable person as to why he was cashing two supposed payroll checks, both with the same date, on the same day. The next day, the defendant went back to a bank branch he had gone to the day before, but on this occasion, the defendant went to a different teller, suggestive of his realization that it would raise red flags with the bank.

Based on the foregoing, any rational juror could have found the defendant transferred forged checks with the intent to defraud. While it was never established whether the defendant or Raiford signed Jiles's name on the three checks that were cashed, this was immaterial, since to knowingly transfer a forged check without having forged the check oneself, also constitutes the crime of forgery. See La. R.S. 14:72(B) ; Ford , 473 So.2d at 933-34.

The defendant's theory of innocence was that Raiford duped him into cashing, in two days at two banks, three of Raiford's "payroll" checks that inexplicably were made payable to the defendant. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten , 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence that he cashed three forged checks for $1,900.00 and knew nothing about the checks being forged or stolen. See Ford , 473 So.2d at 932-34 (where, despite defendant's contention that he was unaware that the check was a forgery, the court found there was more than ample evidence to prove defendant's knowledge that the check was forged, where in the defendant's presence outside a grocery store, a co-defendant wrote out a check payable to defendant for "wages" on the account of a business in the amount of $129.63, despite the fact the defendant never worked for the business, and where, after the co-defendant signed her father's name to the check, defendant went into the store, endorsed the check in the presence of the store's owner, and used the check to purchase a few items of merchandise, received the balance of the check in cash, then returned to the car and gave the co-defendant the cash).

The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty as charged. See Moten , 510 So.2d at 61. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

After a thorough review of the record, we find that the evidence supports the guilty verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of forgery. See State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Accordingly, the trial court did not err in denying the motion for postverdict judgment of acquittal.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 3 and 4

In these related assignments of error, the defendant argues that the trial court erred in not allowing the defendant to produce allegedly exculpatory evidence. He further contends that the trial court erred in denying the motion for new trial based on this allegedly newly discovered evidence.

After both the State and defense counsel, James Burke, III, rested, the trial court recessed for the evening and informed the parties they would do their closing arguments the following morning. The next morning, Burke informed the trial court that the Friday before the start of trial, the prosecutor, Joey Oubre, had asked him (Burke) if he had any evidence, in particular phone texts, to turn over to him. Burke informed Oubre that he did not. Burke explained that the defendant's sister, Melissa Ordoyne, had been given possession of the defendant's cell phone, attempted to find (allegedly exculpatory) texts on the defendant's phone, but found nothing. Then, according to Burke, "late last night," Melissa "had texted some messages that were mentioned in this case." Melissa made copies of the texts and sent them to Burke. Burke then contacted Oubre about the texts. Burke asked the trial court to reopen the case so he could present these text messages.

Oubre argued that the defendant rested his case the day before and they were set for closing arguments that day and, as such, it would be improper to reopen the case. Oubre informed the trial court he had been handed a packet of paper by Burke just this morning and that they are not phone records of texts, but rather "somehow text messages that were purported to be forwarded to an email address and then somehow preserved." Oubre further objected to reopening the case because the emails, which contained alleged text messages, could not be authenticated and they were hearsay. Oubre averred it would be patently unfair to admit this evidence at this point of the trial and that Burke could proffer the evidence. Burke reminded the trial court that Melissa was still in possession of both the defendant's phone and the computer she used to ostensibly download the texts.

In denying Burke's request to reopen the trial, the trial court stated:

Sir, based on this case that has been pending for quite some time, the fact that you were well aware that this was the case that was going and not the aggravated rape case, the fact that discovery has been open all this time, has been completed. The State has done, you know, everything they could in attempting to give you the opportunity to do whatever. I regret that your client and family did not provide you the information you needed for this, but you've rested. We are set this morning for closing. It's after ten and I have a jury still sitting up there waiting. Now, that's their duty and we are all doing our duty here in open court, but I am not going to reopen the case for this. I will, however, allow you to proffer that. I will step out of court under the rules and allow that proffer to be made.

Following the reading of the guilty verdicts, Burke proffered the phone texts. The defendant filed a motion for new trial (and in the alternative a motion for postverdict judgment of acquittal), which was denied.

The defendant argues in brief that the trial court erred in denying the motion for new trial. According to the defendant, he was entitled to a new trial because the (proffered) exculpatory phone texts constituted newly discovered evidence. These texts, the defendant avers, indicated his state of mind after he cashed the forged checks and then had spoken to Raiford, and found out he was just an "innocent party in Raiford's plot." The texts, according to the defendant, would have shown that he did not have the requisite intent to commit forgery. Based on the foregoing, the defendant avers the trial court's denial of his request to reopen the case was an erroneous ruling, warranting a new trial.

Under La. Code Crim. P. art. 851(B), the court, on motion of the defendant, shall grant a new trial whenever:

* * * * *
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

A defendant seeking a new trial based on newly discovered evidence must demonstrate: 1) that the new evidence was discovered after trial; 2) that failure to discover the evidence before trial was not attributable to the defendant's lack of diligence; 3) that the evidence is material to the issues at trial; and 4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. State v. Cavalier , 96-3052 (La. 10/31/97), 701 So.2d 949, 951 (per curiam). In evaluating whether the newly discovered evidence warrants a new trial, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial. State v. Brown , 522 So.2d 1110, 1118 (La. App. 1st Cir. 1988), writ denied, 548 So.2d 1222 (La. 1989). Furthermore, the trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. Id.

After a careful review of the record, we cannot say that the defendant has met all the requisites for the granting of his motion for new trial based upon newly discovered evidence. Particularly, the defendant has failed to show that, notwithstanding the exercise of reasonable diligence, the evidence was not discoverable before or during trial. See La. Code Crim. P. art. 854(1).

The texts at issue, as indicated by Burke's proffered evidence, are alleged text messages sent by the defendant on his cell phone, presumably to Raiford. There is no indication in these documents as to whom these messages are being sent. Each of the thirty pages of the proffered en globo exhibit is a copy of an Outlook Mail email account with a typed sentence or two. The following is at the top of each email message: "5042708538@mms.att.net" and "You; gardensgaloregg@gmail.com." Melissa indicated at the proffer hearing that the phone number in the above message was the defendant's cell phone number; and that the above email account was one of two of the defendant's email accounts. All of the emails except for one are dated "Wed 12/24/2014"; one email is dated "Thu 12/25/2014." Five of the emails have a line just above the alleged texts that states: "You forwarded this message on 1/24/2014 8:4[2] PM." (For each of these five emails, the time changes by one minute, from 8:42 p.m. to 8:46 p.m.). All of the other emails do not contain this line indicating the date and time the message was forwarded. Some of the alleged texts state the following: "What the f--k, dude? What u got me into?"; "How did U find out about them not being his checks?"; "U told me they were for your pay check! What was it for?"

The defendant was interviewed by Detective Vicknair, with the Hammond Police Department, on January 13, 2015. During the interview, the defendant told Detective Vicknair that he thought the checks he cashed for Raiford were Raiford's paychecks for work he had done at a bar in Amite. The defendant told the detective that everything was on his (the defendant's) cell phone. Detective Vicknair testified at trial that, after obtaining the defendant's permission to search his phone, he looked through the defendant's phone and found nothing on the defendant's phone of evidentiary value regarding the instant case. Detective Vicknair then released the defendant's phone to his sister, Melissa, who had gone to the police department to pick up the phone. According to Melissa, she was in possession of the cell phone no later than one week after the defendant was arrested. The defendant's trial began January 24, 2017. Accordingly, Melissa had been in possession of the defendant's phone for over two years before the start of trial. The minutes indicate that Burke began representing the defendant as early as March 8, 2016.

In light of the above facts, we conclude that both the defendant and defense counsel had ample opportunity to learn the contents of the phone well before trial. Melissa indicated at the proffer hearing that the first time she tried to find texts on the phone, she found nothing. She also indicated she tried to use a computer to access the texts, but the computer did not work. Then, according to Melissa, the same night that counsel had rested their cases for the defendant's case, she used a different computer to find the texts. Apparently, the defendant had realized-over two years later-that his phone texts could be retrieved from any computer. Why the defendant allegedly sent his phone texts to his email account in the first instance was never explained.

Based on the foregoing, we find that the defendant failed to carry his burden of proving that his failure to learn of this so-called new evidence was not due to his lack of reasonable diligence. Whether sufficient diligence was exercised must be determined from the composite knowledge and conduct of both the accused and his counsel. State v. Prudholm , 446 So.2d 729, 736 (La. 1984). There has been no showing made by the defendant of why these alleged texts on his cellphone were not obtained within the two-year time period prior to trial. Accordingly, the derelictions by the defendant and Burke defeat any claim that the evidence presented at the conclusion of the trial (and the motion for new trial) was not discoverable with the exercise of reasonable diligence before or during the time of trial. See Prudholm , 446 So.2d at 735-36.

We would point out, as well, that the alleged texts were both unauthenticated and inadmissible hearsay. Other than the self-serving testimony of the defendant and his sister, there would have been nothing to authenticate the copies of these emails with alleged phone texts on them. Further, there was clearly nothing self-authenticating about them. See La. Code Evid. art. 902. More importantly, these alleged texts were an attempt by the defendant to offer his own (recorded) statements, which presumably included some exculpatory information. Generally, any out-of-court statement of the accused constitutes hearsay unless subject to an exception. Such statement is admissible as an exception to the hearsay rule when it is an admission against interest. Thus, the defendant could not introduce his own self-serving exculpatory statements because they are hearsay. See State v. Palmer , 45,627 (La. App. 2nd Cir. 1/26/11), 57 So.3d 1099, 1106, writ denied, 2011-0412 (La. 9/2/11), 68 So.3d 526. Since the defendant intended to offer his own texts (statements) in his defense, the texts are inadmissible hearsay as they are not being introduced as evidence "offered against him" for purposes of La. Code Evid. art. 801(D)(2). Id. The primary criterion for the admissibility of evidence-the trustworthiness and reliability of the texts-was not established. See State v. Wilson , 2015-1794 (La. App. 1st Cir. 4/26/17), 220 So.3d 35, 51-52.

For all these reasons, we find the trial court did not abuse its discretion when it denied the defendant's motion for new trial. Accordingly, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

In his fifth assignment of error (erroneously numbered by the defendant as his third assignment of error), the defendant argues the trial court erred in imposing consecutive sentences and, as such, his sentences are excessive. The defendant argues in brief that the trial court erred by imposing consecutive sentences for the three forgery convictions because they arose from a common scheme or transaction, and the trial court did not offer any justification for running the sentences consecutively. He further submits that the trial court failed to adequately articulate for the record those facts specified as appropriate for consideration by law in tailoring his sentence. The defendant suggests that his culpability was minimal and that he was the "pawn" of a friend in whom he misplaced his trust. The defendant asks this court to remand the case for the imposition of concurrent sentences.

The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado , 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews , 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. Id. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown , 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos , 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981).

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. Code Crim. P. art. 883. Thus, La. Code Crim. P. art. 883 specifically excludes from its scope sentences which the court expressly directs to be served consecutively.

Furthermore, although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. State v. Palmer , 97-0174 (La. App. 1st Cir. 12/29/97), 706 So.2d 156, 160.

The trial court expressly directed that the three forgery sentences were to run consecutively to each other. Thus, those sentences are outside the scope of La. Code Crim. P. art. 883. See Palmer , 706 So.2d at 160. While the trial court did not provide specific reasons for imposing consecutive sentences, the record provided justification for the consecutive sentences. See Id. Each act of forgery was separate and distinct. The first two acts of forgery were committed on the same day, but at different times, at different banks, and with different tellers. The third act of forgery occurred on a different day than the first two acts. The defendant was also arrested and convicted for pawning jewelry he did not own. See Id.

Accordingly, the trial court did not abuse its discretion in imposing consecutive sentences for the three forgery convictions. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      The reporter's comments to La. R.S. 14:11, entitled "Criminal intent, how expressed," identify forgery as an example of a specific intent crime. But see State v. Raymo , 419 So.2d 858, 859 (La. 1982) (indicating that that forgery is a general intent crime). For the purposes of this appeal, we shall determine whether the state met the more onerous burden of proving the defendant had specific intent to defraud.

      The defendant told Detective Vicknair during his interview that Raiford was his boyfriend. He also told the detective that Raiford was arrested for check fraud in 2012. The defendant was shown copies of the checks he cashed during the interview, and when the detective asked the defendant who signed the checks, he stated that it looked like "David's" handwriting.