text:
    Nunzio P. INZINNA and Emily Inzinna v. Troy Odem GUITREAU, ABC Insurnace Company, the Livingston Parish Fire Protection District Two Volunteer Fire Department Incorporated, Arch Insurance Company, DEF Insurance Company, the Livingston Parish Fire Protection District No. 9, American Alternative Insurance Corporation and XYZ Insurance Company
    NO. 2018 CA 0905
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 22, 2019 Rehearing Denied March 18, 2019
    Henry D. H. Olinde, Jr., Scott E. Mercer, Douglas S. Smith, Jr., Baton Rouge, Louisiana, Counsel for Defendants, - Appellants/Appellees, Troy Odem Guitreau, Livingston Parish, Fire Protection District No. 9, and, American Alternative Insurance Company
    Ron S. Macaluso, Hammond, Louisiana, Counsel for Plaintiffs - Appellants, Nunzio Inzinna and Emily Inzinna
    Bridget R. Hebert, Hammond, Louisiana, Counsel for Plaintiffs - Appellees, Nunzio Inzinna and Emily Inzinna
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

On January 22, 2018, the Twenty-First Judicial District Court rendered judgment assessing the fault of the defendants, Troy Odem Guitreau, Livingston Parish Fire Protection District No. 9, and American Alternative Insurance Company at 75%, and assessing the fault of the plaintiff, Nunzio Inzinna at 25%. Both parties appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

At approximately noon on January 27, 2013, Nunzio Inzinna was driving a 2007 Honda Accord on Highway 22 near Killian, Louisiana. At the same time, Troy Odem Guitreau, who was responding to an emergency call dispatched by Livingston Parish Fire Protection District Two Volunteer Fire Department Incorporated ("District 2"), was driving a 2007 Ford Crown Victoria on the same highway. Mr. Guitreau was driving at least 60 miles per hour, but may have been driving as fast as 90 miles per hour. As Mr. Guitreau was driving down Highway 22, he approached a pick-up truck, driven by Robert Watkins, which was traveling in the same lane in the same direction. Mr. Watkins was driving behind Mr. Inzinna.

At this point, Mr. Inzinna activated his left blinker to attempt a left turn into a driveway. As Mr. Inzinna was preparing to turn, Mr. Guitreau (who was behind Mr. Watkins), accelerated to pass Mr. Watkins. Mr. Guitreau then went around the left side of Mr. Watkins' truck. Mr. Inzinna, who did not see Mr. Guitreau attempting to pass Mr. Watkins, began his left turn into the driveway. When Mr. Guitreau saw Mr. Inzinna making the left turn, Mr. Guitreau slammed on his brakes and steered towards the ditch on the left side of the road. However, Mr. Guitreau was unable to avoid a collision and crashed into Mr. Inzinna's vehicle.

The vehicle driven by Mr. Guitreau was owned by Livingston Parish Fire Protection District No. 9 ("District 9") and was equipped with sirens and lights, which had separate switches and operated independently of one another. While Mr. Guitreau contends that he had activated both his sirens and lights prior to the accident, Mr. Watkins testified that Mr. Guitreau's vehicle had its lights flashing, but that he heard no siren. Mr. Inzinna alleged that he did not hear a siren, nor did he see any emergency lights.

Mr. Inzinna, his wife Emily Inzinna, Mr. Guitreau, and Mr. Watkins provided testimony about the accident. Mr. Inzinna testified that, upon realizing that he had left his cell phone at home, he activated his left-blinker so that he could turn around in a driveway on the left side of the highway. Before turning, he looked in the rearview mirror and saw that a truck was behind him and that the truck also had its blinker activated. Mr. Inzinna testified that he looked to his rear once more prior to turning left. When he attempted the left turn, he was "hit broadside" by Mr. Guitreau's vehicle. Mr. Inzinna testified that he had not seen Mr. Guitreau's vehicle coming, nor had he seen any emergency lights. He further testified that he did not hear any sirens prior to or after the accident. Regarding Highway 22 itself, Mr. Inzinna testified that there had been a "No Passing" sign on the road and that the posted speed limit on Highway 22 is 55 miles per hour.

Mr. Inzinna did not immediately go to the hospital after the accident, but went the next day. As a result of the accident, Mr. Inzinna suffered injuries to his knee, lower back, neck, and wrist. Mr. Inzinna also admitted to having previous injuries from a fall and a different car accident - both of which occurred several years prior - but testified that those injuries had been resolved prior to the accident with Mr. Guitreau.

Mr. Guitreau testified in a deposition and at trial. In his deposition, he testified that, at the time of the accident, he was working as a volunteer for both District 2 and District 9. Mr. Guitreau testified that he was responding to an emergency call involving an 18-month-child in Killian, Louisiana who was not breathing. Mr. Guitreau was driving a vehicle owned by District 9, but responding to a dispatch from District 2.

He further stated that when the fire department gets an emergency call, the firefighters/first responders are required to turn on their lights and sirens. Mr. Guitreau claimed that he turned on both his sirens and his lights on his way to answer the emergency call. Mr. Guitreau testified that the speed limit on Highway 22 was 55 miles per hour, but that he was driving approximately 65 to 70 miles per hour when responding to the call. There was a no-passing area on Highway 22, but Mr. Guitreau believed he could ignore the no-passing line when responding to an emergency.

Mr. Guitreau alleged that he was driving approximately 65 miles per hour when he saw a pickup truck "[m]aybe 50, 60 feet in front of" him that was going around a curve. He did not see any other vehicle at that time, other than the pickup truck driven by Mr. Watkins. He then accelerated to pass the pickup truck. When Mr. Guitreau went around the pickup truck's left side, he saw Mr. Inzinna's vehicle "[m]aybe two or three car lengths" in front of him. He also saw that Mr. Inzinna's brake lights and left turn signal were on. Mr. Guitreau hit his brakes and steered towards the ditch on the left side of the road, but could not avoid a collision with Mr. Inzinna's vehicle. At this point, Mr. Guitreau's front-passenger side hit the driver's front door of Mr. Inzinna's vehicle. The collision occurred in the passing lane.

Mr. Guitreau testified that, after the collision, he exited his vehicle to check on Mr. Inzinna and saw Mr. Inzinna crawling out the passenger side of the car. He stated that the only witnesses to the accident were himself, Mr. Inzinna, and Mr. Watkins. Mr. Guitreau testified that he (Mr. Guitreau) "was kind of upset and ... might have said a few words to" Mr. Watkins. Mr. Guitreau alleged that he did not have any conversations with Mr. Inzinna at the scene.

Subsequently, law enforcement from the Killian Police Department arrived at the scene. Mr. Guitreau, who had suffered injuries to both of his hands due to his vehicle's airbags, gave the officer a statement and then left the scene in an Acadian Ambulance. Mr. Guitreau was taken to North Oaks Hospital and treated in the emergency room; he did not require any medical treatment after the initial visit to the emergency room.

At the deposition, Mr. Guitreau was shown a statement written by Mr. Watkins. This statement alleged that Mr. Guitreau had been driving 90 miles per hour when he passed Mr. Watkins's pick-up truck. When asked whether this was correct, Mr. Guitreau stated, "I don't know. I had accelerated to pass him up."

Mr. Guitreau also testified at trial. He reiterated his claims that he had both his lights and sirens activated when the accident occurred. However, he testified that when he attempted his passing maneuver, he was going 60 to 65 miles per hour. He further testified that he began his passing maneuver in a passing zone, but that the accident itself occurred in a no-passing area. He denied that he was going 90 miles per hour as alleged by Mr. Watkins. Mr. Guitreau further testified that Mr. Inzinna did not begin his turn until after Mr. Guitreau was "nose to nose" with Mr. Watkins's pick-up truck. Regarding the sirens, Mr. Guitreau testified that he deactivated his sirens after the accident, but left the emergency lights on.

Mr. Watkins was also deposed. Mr. Watkins testified that he was driving on Highway 22 and had just gone around a curve when he saw Mr. Inzinna's car slowing down with its left-blinker on in front of him. Mr. Watkins stated that, all of a sudden, he saw Mr. Guitreau's vehicle "flying around" him at what Mr. Watkins estimated to be 95 miles an hour. Mr. Watkins stated that there was no way Mr. Guitreau would have been able to stop and that Mr. Guitreau slammed on the brakes and slid about "a hundred feet or more" before hitting Mr. Inzinna's car. Mr. Watkins then stopped and exited his truck and saw Mr. Inzinna climbing out of his vehicle. Mr. Watkins further stated that Mr. Guitreau exited his own vehicle and started "kind of freaking out, hollering about [Mr. Inzinna, calling him] a little kooky and [stating that] he had dealt with him before and [that] he - [Mr. Inzinna] had lied about health issues; and he was extremely rude, very, very mean to [Mr. Inzinna.]"

Mr. Watkins testified that Mr. Guitreau's vehicle had flashing lights, but no siren. He stated that the portion of the highway where the accident occurred has stripes for no passing, because of the curves in the road. He further stated that he believed that the no passing stripe applied to the lane that he (and Mr. Inzinna and Mr. Guitreau) were driving in.

Mr. Watkins also made a written statement on the same day as the accident. In this statement, Mr. Watkins wrote that Mr. Guitreau passed him "going about 90 miles [per] hour with lights flashing[.]" He further wrote that Mr. Inzinna had his left turn signal on and that Mr. Guitreau slammed into the driver's side of Mr. Inzinna's car, spinning it almost off the road. Mr. Watkins wrote that Mr. Inzinna climbed out of his vehicle and said that he was okay, and that Mr. Guitreau "walked up to Mr. [Inzinna] being very rude and stated that he knew Mr. [Inzinna and] that he knew [Mr. Inzinna] had medical problems [and] other things."

Mrs. Inzinna, Mr. Inzinna's wife, was also deposed. She testified that she did not see the collision, but heard the sounds of the collision. She stated that she was standing at the edge of her driveway holding Mr. Inzinna's cell phone, which he had forgotten at home, because she had gone outside to try to catch him before he left. She stated that while she was in the driveway, she saw Mr. Inzinna's vehicle on the road with its left blinker flashing. She also saw Mr. Watkins's pickup truck, which had its turn signal on. Once she saw that Mr. Inzinna was about to turn around, she began to walk back towards her house. She testified that while she was walking back to her house, she "heard an accelerated vehicle" and "glanced out of the corner of [her] eye to see that this car was accelerated and committed to pass." She stated that she then turned her head because she thought there was going to be an accident. Mrs. Inzinna further testified that she did not hear any sirens, nor did she see any emergency lights.

Mrs. Inzinna testified that, after the accident occurred, she and her son-in-law, Brandon Martello, went to the scene of the accident. After the police spoke to Mr. Inzinna, Mr. Martello drove Mr. Inzinna home. Mrs. Inzinna did not speak to the police or make a statement. Mr. Inzinna did not go to the hospital until the next day. Mrs. Inzinna testified that Mr. Martello took pictures of the scene of the accident after the accident occurred. However, Mrs. Inzinna does not have those photographs. Those photos may still be in Mr. Martello's phone, but Mrs. Inzinna does not have access to the phone.

The record also contains the crash report for the accident. According to the crash report, the weather was clear and the road was dry at the time of the accident.

On January 24, 2014, Mr. and Mrs. Inzinna filed a petition for damages against Mr. Guitreau, ABC Insurance Company, District 2, Arch Insurance Company ("AIC"), DEF Insurance Company, District 9, American Alternative Insurance Company ("American Alternative"), and XYZ Insurance Company. Specifically, Mr. Inzinna sought damages for various injuries suffered as a result of the accident and Mrs. Inzinna sought damages for loss of consortium.

In their respective answers, Mr. Guitreau, District 9, and American Alternative, admitted that an accident had occurred while Mr. Guitreau was using an emergency vehicle owned by District 9 in the scope of his activities as a volunteer and with full permission. However, they denied liability, alleging that Mr. Guitreau was immune under La. R.S. 32:24.

On March 27, 2017, District 2 and AIC filed a motion for summary judgment. In a supporting memorandum, District 2 and AIC asserted that La. R.S. 32:24 is applicable to this matter, meaning that Mr. Guitreau would only be liable if he committed gross negligence. District 2 and AIC further argued that Mr. Inzinna could not prove that Mr. Guitreau was grossly negligent, and that the defendants in this case were thus entitled to judgment as a matter of law. On April 3, 2017, Mr. Guitreau, District 9, and American Alternative also filed a motion for summary judgment, adopting the arguments made in District 2 and AIC's motion for summary judgment.

On May 15, 2017, the Inzinnas filed a motion for partial summary judgment on the issue of whether the defendants were entitled the immunity provided in La. R.S. 32:24. The Inzinnas argued that Mr. Guitreau was acting with reckless disregard for the safety of others and thus not entitled to immunity under La. R.S. 32:24.

On July 12, 2017, the trial court signed a judgment denying the motion for summary judgment filed by Mr. Guitreau, District 2, and AIC. The trial court also denied the motion for summary judgment filed by Mr. Guitreau, District 9, and American Alternative. The trial court further ordered that the motion for partial summary judgment filed by the Inzinnas be continued.

On November 16, 2017, the trial court dismissed without prejudice District 2 and AIC. This partial dismissal without prejudice did not waive any rights of the Inzinnas against the remaining defendants, Mr. Guitreau, District 9, and American Alternative.

After a bench trial, the trial court signed a judgment on January 22, 2018, assessing the fault of the remaining defendants, Mr. Guitreau, District 9, and American Alternative at 75%. The trial court assessed the remaining 25% of fault to Mr. Inzinna. In its reasons for judgment, the trial court stated that it had found La. R.S. 32:24 to be inapplicable. The trial court noted the disputed facts as to whether Mr. Guitreau had emergency lights on, his siren on, or both, and found Mr. Watkins's testimony that he observed the lights but no siren to be the most credible. The trial court stated that, considering the accident occurred around noon, it would be difficult for a driver to see emergency lights as an emergency vehicle approached. Accordingly, the trial court found that the use of emergency lights alone was not sufficient to warn motorists of Mr. Guitreau's approach and that La. R.S. 32:24 would thus be inapplicable. Because the trial court found that La. R.S. 32:24 did not apply, the trial court analyzed the facts of this case under the ordinary negligence standard and found both parties to be negligent. Specifically, the trial court found that Mr. Inzinna was negligent for failing to adhere to his duty to yield to an oncoming emergency vehicle by attempting to make a left turn into the path of that emergency vehicle. However, the trial court also found that Mr. Guitreau was negligent. The trial court stated that although Mr. Guitreau was in a passing zone when he attempted to pass Mr. Inzinna, he entered into a no-passing zone, and the accident occurred in the same no-passing zone.

On February 22, 2018, Mr. Guitreau, District 9, and American Alternative appealed the trial court's ruling. On February 26, 2018, the Inzinnas also appealed the trial court's judgment.

ASSIGNMENTS OF ERROR

Mr. Guitreau, District 9, and American Alternative assign the following as error:

(1) The trial court committed error when it found that Guitreau's use of emergency lights was not sufficient to warn motorists of his approach as required by La. R.S. 32:24(C).
(2) The trial court committed error when it found that the reckless disregard or gross negligence standard of La. R.S. 32:24 did not apply to Guitreau's actions.
(3) The trial court committed error when it found that Inzinna did not have a duty to yield the right-of-way to an emergency vehicle under La. R.S. 32:125.
(4) The trial court committed error in assessing Guitreau's fault at 75% and Inzinna's fault at only 25%.

The Inzinnas assert one assignment of error:

(1) The trial court erred in finding that Mr. Inzinna was comparatively at fault.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Under the manifest error-clearly wrong standard, this court employs a two-part test for the reversal of a factfinder's determinations. Bova v. Butler, 2014-0765 (La. App. 1 Cir. 12/23/14), 168 So.3d 551, 554, writ denied, 2015-0172 (La. 4/17/15), 168 So.3d 398 (citing Stobart, 617 So.2d at 882 ). First, this court must find from the record that a reasonable factual basis does not exist for the findings of the trial court. Bova, 168 So.3d at 554. Second, this court must determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. This test requires this court to review the record in its entirety to determine manifest error. Id. This court's determination is not whether the factfinder was correct, but whether the factfinder's conclusion was reasonable. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where there are two permissible views of the evidence, the fact-finder's choice cannot be manifestly erroneous or clearly wrong. Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d 653, 657 (citing Stobart, 617 So.2d at 883 ).

DISCUSSION

Defendants' Assignments of Error # 1 and # 2

In two related assignments of error, the defendants argue that trial court erred in finding that Mr. Guitreau's use of emergency lights was insufficient to warn motorists pursuant to La. R.S. 32:24(C) and thus improperly analyzed Mr. Guitreau's actions under an ordinary negligence standard.

Louisiana Revised Statutes 32:24 states:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals, including the use of a peace officer cycle rider's whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others. (Emphasis added.)

The Louisiana Supreme Court, in Lenard v. Dilley, 2001-1522 (La. 1/15/02), 805 So.2d 175, held that La. R.S. 32:24 sets forth two standards of care, depending upon the circumstances. Jones v. American Alternative Ins. Corp., 2014-0367 (La. App. 1 Cir. 1/8/15), 169 So.3d 386, 390. If an emergency vehicle driver meets the requirements of Sections A, B, and C, then the driver can be held liable only if his actions rise to the level of "reckless disregard" for the safety of others. Jones , 169 So.3d at 390. On the other hand, if the driver's actions do not meet the prerequisites of Sections A, B, and C, then the driver's actions are to be assessed under the "due regard" or an ordinary negligence standard. Id.

In discussing the two standards, the Louisiana Supreme Court in Lenard explained:

"Due care" is synonymous with ordinary negligence. "Reckless disregard," however, connotes conduct more severe than negligent behavior. "Reckless disregard" is, in effect, "gross negligence." Gross negligence has been defined by this court as "the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise." State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). "Reckless disregard" or "gross negligence" is the standard to be applied if the emergency vehicle driver's actions fit [La. R.S.]. 32:24(A) through [La. R.S.] 32:24(C). Otherwise, the standard is ordinary negligence.

Lenard, 805 So.2d at 180.

It is undisputed that Mr. Guitreau satisfies La. R.S. 32:24(A), because he was responding to an emergency call in Killian, Louisiana when the accident occurred. His actions also fall under La. R.S. 32:24(B).

Mr. Guitreau admitted to exceeding the maximum speed limit on Highway 22, although there is conflicting testimony regarding how fast he was traveling. Additionally, while it is unclear whether Mr. Guitreau was in a passing zone when he began passing Mr. Watkins, the accident occurred in a no-passing zone. Thus, Mr. Guitreau exceeded the maximum speed limits and disregarded regulations governing the direction of movement, thereby satisfying La. R.S. 32:24(B).

The third inquiry is whether Mr. Guitreau's vehicle was "making use of audible or visual signals ... sufficient to warn motorists" of his approach. La. R.S. 32:24(C). The trial court found that Mr. Guitreau's emergency lights were not sufficient to warn of his approach. There is conflicting testimony regarding the signals being used by Mr. Guitreau on the day of the accident. Mr. Guitreau testified in his deposition and at trial that he had both his emergency lights and sirens activated when the accident occurred. Mr. Inzinna testified that he had not seen Mr. Guitreau's vehicle coming and thus did not see any emergency lights. He further testified that he did not hear any sirens prior to or after the accident. Mrs. Inzinna, who was just down the road from the accident, testified that she did not hear any sirens, nor did she see any emergency lights. Mr. Watkins, the driver of the pick-up truck, stated that Mr. Guitreau's vehicle had flashing lights, but no sirens.

In its reasons for judgment, the trial court explained that it had found Mr. Watkins's testimony to be the most credible, because Mr. Watkins has no interest in this litigation. Thus, the trial court determined that Mr. Guitreau's emergency lights had been on, but the sirens had not been on. This determination is a finding of fact, which this court will not set aside unless it is manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. The trial court's factual finding is reasonable and thus we will not disturb it. See Bova, 168 So.3d at 554.

Mere use of a signal or signals is not enough to show compliance with La. R.S. 32:24(C) ; there must be a further showing that use of the signal or signals was "sufficient to warn motorists" of the approach of the emergency vehicle. Jones, 169 So.3d at 391-92. Courts have observed that La. R.S. 32:24(C) does not require that both audible and visual signals be given. Id. at 392. Because we adopt the trial court's finding that Mr. Guitreau's emergency lights were on, but his sirens were not, we must determine whether Mr. Guitreau's emergency lights alone were sufficient to warn motorists of his approach per La. R.S. 32:24(C).

In Guitreau v. City of Gonzales , 2012-0794 (La. App. 1 Cir. 2/13/13), 2013 WL 557018, at *3 (unpublished) , this court considered whether a trial court was correct in concluding that a police officer gave insufficient audible or visual signals to warn motorists of his approach. In Guitreau , a police officer activated his patrol car's blue-flashing lights when pursuing an unidentified vehicle for a seatbelt violation. Guitreau, 2013 WL 557018 at *1. The police officer also activated his "yelp" siren once, producing a single loud burst of sound. Id. at *1. As the police officer was in pursuit, another vehicle attempted a left turn and collided with the patrol car. Id. Regarding the police officer's audible and visual signals, this court stated:

Based on our review of the record ... we find no manifest error in the trial court's factual determination that the visual and audible warnings given by Officer Taylor were insufficient under La. R.S. 32:24(C) ... Even though Officer Taylor activated his flashing blue lights when he pulled into the opposing lane of traffic, those lights obviously did not provide as much warning to a motorist being approached from the rear during the daytime as it would have to a motorist approaching the patrol car from the opposite direction or at nighttime. Furthermore, the dash-cam video reveals that Officer Taylor activated the yelp siren, emitting a short loud blast, only one time as he passed the vehicle behind Ms. Guitreau. He did not reactivate the yelp siren as he approached Ms. Guitreau's vehicle near the intersection where she attempted to turn. Given these facts, we cannot say the trial court's conclusion that Officer Taylor gave insufficient audible or visual signals to warn motorists of his approach in a no-passing zone was manifestly erroneous. (Emphasis added.)

Id. at *3. This court's reasoning in Guitreau regarding the time of day and the fact that the police officer was approaching from the rear applies here. The accident occurred at noon on a clear day, making it more difficult for a motorist to see emergency lights. We also note that there was a vehicle between Mr. Guitreau and Mr. Inzinna, which would have at least partially obstructed Mr. Inzinna's rearview.

The defendants point out that in Guitreau, no eyewitnesses observed the police officer's emergency lights, while in the present case, Mr. Watkins could see Mr. Guitreau's lights flashing. However, Mr. Watkins saw the lights on Mr. Guitreau's vehicle as Mr. Guitreau was speeding past him, which does not mean that Mr. Guitreau's lights were sufficient to warn other drivers.

Time of day was also a factor in Slone v. Greber , 43,471 (La. App. 2 Cir. 8/13/08), 989 So.2d 273, in which a police officer was involved in an accident at dawn and had its lights activated but no siren. In Slone , the second circuit stated:

Regarding the signals on the patrol car, the Statute does not require that both audible and visual signals be given. Therefore, a fact-sensitive inquiry exists regarding whether the flashing lights in this case as opposed to audible signals were sufficient warning. The evidence shows that the accident occurred just before dawn when the streets were relatively dark. The flashing lights atop the vehicle could be viewed by the trial court as reasonable notice in the darkness of this emergency situation. (Emphasis added.)

Slone , 989 So.2d at 279.

We find that the trial court's findings in the present case were not manifestly erroneous. It is reasonable to conclude that Mr. Guitreau's use of his emergency lights at noon on a clear day was not sufficient to warn motorists of his approach, especially considering that there was a vehicle between Mr. Guitreau and Mr. Inzinna prior to Mr. Guitreau's attempt to pass Mr. Watkins's pick-up truck.

Further, because the trial court's finding that Mr. Guitreau's emergency lights were insufficient to warn motorists of his approach was not manifestly erroneous, the trial court properly determined that the "reckless disregard" (or "gross negligence") standard does not apply. Mr. Guitreau does not meet the requirements of 32:24(C) and therefore his actions must be assessed under an ordinary negligence standard. See Jones , 169 So.3d at 390.

These assignments of error lack merit.

Defendants' Assignment of Error # 3

In their third assignment of error, the defendants assert that the trial court erred in finding that Mr. Inzinna did not have a duty to yield the right-of-way to an emergency vehicle under La. R.S. 32:125. Louisiana Revised Statutes 32:125 states in pertinent part:

A. Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, ... the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
...
C. This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

The trial court held that, consistent with its findings pertaining to La. R.S. 32:24, Mr. Guitreau's use of emergency lights was not sufficient to warn Mr. Inzinna of the approaching vehicle. Thus, the trial court found that La. R.S. 32:125 was inapplicable to the present case.

A driver's duty to yield the right of way to emergency vehicles as prescribed by La. R.S. 32:125 arises only when the motorist observes or hears, or under the circumstances should have observed or heard, the audible and/or visible warnings of the emergency vehicle. Carpenter v. Hartford Acc. & Indem. Co., 333 So.2d 296, 300 (1976). See also Bristol v. Gonzales Police Department, 2017-0675 (La. App. 1 Cir. 12/21/17), 240 So.3d 232, 242 n.4, writ denied, 2018-0146 (La. 3/23/18), 239 So.3d 296. Because we find that Mr. Guitreau's visual warnings were insufficient to warn motorists of his approach, we also find that under the circumstances, the duty to yield provided in La. R.S. 32:125 does not apply.

This assignment of error lacks merit.

Defendants' Assignment of Error # 4 and Plaintiffs' Assignment of Error # 1

In their final assignment of error, the defendants allege that the trial court erred in assessing Mr. Guitreau's fault at 75% and Mr. Inzinna's fault at only 25%. The defendants assert that Mr. Guitreau was not negligent or at fault for the accident, and that Mr. Inzinna's breach of his duty as a left-turning motorist was the sole cause-in-fact of the accident.

The plaintiffs also appeal the trial court's assessment of fault, arguing that Mr. Inzinna should not have been assessed any fault. They assert that because Mr. Guitreau was traveling at an excessive rate of speed in a no-passing portion of the road, Mr. Inzinna had no reasonable opportunity to observe Mr. Guitreau prior to initiating his turn.

Regarding the fault of the parties, the trial court stated in written reasons that "[t]he combination of Mr. Inzinna's left turn with Mr. Guitreau's passing maneuver in a no passing lane would put them both at fault for this accident."

As stated above, if a driver's actions do not meet the prerequisites of La. R.S. 32:24(A), (B), and (C), then the driver's actions are to be assessed under the "due regard" or an ordinary negligence standard. Jones, 169 So.3d at 390. We first address whether Mr. Guitreau was negligent. La. R.S. 32:77(B) states in pertinent part:

B. Where signs or markings are in place to define a no-passing zone ... no driver shall at any time drive on the left side of the roadway within such zone, or on the left side of any pavement striping, designated to mark such no-passing zone, throughout its length.

Mr. Guitreau admitted at trial that the accident occurred in a no-passing zone. Even if Mr. Guitreau began passing Mr. Watkins in a passing zone, Mr. Guitreau still violated La. R.S. 32:77(B) by being on the left side of the roadway within a no-passing zone. Accordingly, we agree with the trial court's finding that Mr. Guitreau was partially at fault for the accident.

Next, we address Mr. Inzinna's alleged negligence. La. R.S. 32:104(A) states in pertinent part that "No person shall ... turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety." Additionally, a left-turning motorist has a strong duty of care that requires not only looking before turning, but also seeing what is observable. Guitreau, 2013 WL 557018 at *4. Mr. Inzinna testified at his deposition that he looked in his rearview mirror twice before turning left into the driveway. However, Mr. Inzinna did not see Mr. Guitreau, who was passing Mr. Watkins as Mr. Inzinna was making his left turn. As noted by the trial court, the amount of fault that can be allocated to Mr. Inzinna "is complicated by the particular area in which the accident occurred" because the accident occurred in a no-passing zone. We agree with the trial court's finding that Mr. Inzinna's left turn contributed to the accident, and that "[t]he combination of Mr. Inzinna's left turn with Mr. Guitreau's passing maneuver in a no passing lane would put them both at fault for this accident."

Because we find that both parties are at fault, we next review the trial court's allocation of fault. The trial court found Mr. Guitreau to be 75% at fault and Mr. Inzinna to be 25% at fault. Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Leonard v. Ryan's Family Steak Houses, Inc., 2005-0775 (La. App. 1 Cir. 6/21/06), 939 So.2d 401, 410. In determining fault, the trier of fact should consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Leonard, 939 So.2d at 410. In the assessment of the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Id.

In allocating fault, the trial court looked at two cases: (1) Roberts v. Robicheaux, 2004-1405 (La. App. 3 Cir. 3/2/05), 896 So.2d 1232, writ denied, 2005-0792 (La. 5/13/05), 902 So.2d 1021 ; and (2) Guitreau, 2013 WL 557018.

In Roberts, a driver attempted to pass another vehicle in a no-passing zone. Roberts, 896 So.2d at 1233. As the first driver was attempting to pass, the second driver executed a left-turn into a private driveway and the two vehicles collided. Id. The trial court originally found the two drivers equally at fault and allocated 50% of fault to each. Id. However, on appeal, the third circuit increased the fault of the passing motorist to 75% and decreased the fault of the left-turning motorist to 25%, stating that "[t]he duty to follow statutorily imposed rules and common sense make [the passing driver's] breach a far greater infraction than that of [the left-turning driver]." Id. at 1235. The third circuit summarized its findings by stating, "we find the passing motorist ... to be 75% at fault in causing this accident because he attempted to pass in a "no-passing" zone. We find ... the left turning motorist, to be 25% at fault for improper lookout and signalization." Id. The third circuit referenced these findings in a subsequent case, Plunkett v. Geis, 2008-230 (La. App. 3 Cir. 12/3/08), 2008 WL 5070276 (unpublished), at *3, writ denied, 2009-0013 (La. 2/20/09), 1 So.3d 501, stating that in Roberts, the passing motorist's attempt to pass in a no-passing zone "was the sole basis for which both the trial court and [the third circuit] found the passing motorist was at fault."

We note that the parties in Roberts contested whether the left-turning driver had properly activated her left turn signal, whereas it is undisputed in the present case that Mr. Inzinna's used his left turn signal prior to attempting his turn into the driveway. Roberts, 896 So.2d at 1234. We further note that, unlike Mr. Guitreau in the present case, the passing driver in Roberts was not responding to an emergency. However, because Mr. Guitreau must be held to an ordinary negligence standard, we find the third circuit's findings in Roberts to be persuasive.

The trial court also looked at Guitreau v. City of Gonzales, wherein a police officer was hit by a vehicle attempting a left turn. Guitreau, 2013 WL 557018 at *1-3. The trial court in Guitreau originally allocated 60% fault to the police officer and 40% fault to the left-turning driver. Id. at *1. This court found that allocation to be manifestly erroneous and amended the judgment to assess the police officer with 75% fault and the left-turning driver with 25% fault. Id. at *2-4. This court noted that the police officer, who was in pursuit of a suspected seatbelt violator and thus in a non-emergency situation, "deliberately chose to ignore a no-passing zone." Id. at *4. The police officer had "pulled into the opposing lane of traffic and attempted to pass two vehicles as the vehicles approached an intersection without giving sufficient warnings of his presence." Id. This court further stated:

Not only did [the police officer's] conduct create a greater risk of harm than [the left-turning driver's] conduct, it also was intentional conduct, whereas [the left-turning driver's] was merely inattentive. Given these circumstances, the judgment of the trial court will be amended to assess [the police officer] with seventy-five percent fault an [the left-turning driver] with twenty-five percent fault.

Id. at *4.

We again note that the police officer in Guitreau was not responding to an emergency, while Mr. Guitreau in the present case was in fact responding to an emergency.

In the present case, the trial court noted the similar circumstances between Roberts, Guitreau, and the case before the court. Because of those similarities, the trial court adopted the same percentages of fault, allocating 75% of fault to Mr. Guitreau and 25% of fault to Mr. Inzinna.

Considering the jurisprudence, we cannot say that the trial court was manifestly erroneous in its allocation of fault. Although there are a few factual differences between the present case and the facts in Roberts and Guitreau , the negligent acts themselves are similar. Like Roberts and Guitreau, the accident occurred while Mr. Guitreau was in a no-passing lane. Mr. Guitreau admitted that he was driving at least 60 miles an hour, while Mr. Watkins alleged that Mr. Guitreau was driving 90 miles an hour. Further, like the parties in Guitreau, Mr. Guitreau was aware of the danger of driving in a no-passing zone, while Mr. Inzinna's failure to see Mr. Guitreau was inadvertent. Thus, although Mr. Guitreau's intentions were to reach the scene of an emergency, his manner of doing so contributed in large part to the accident with Mr. Inzinna. Accordingly, we find that the trial court did not manifestly err in allocating 75% of fault to Mr. Guitreau and 25% of fault to Mr. Inzinna.

CONCLUSION

For the above and foregoing reasons, the judgment of the Twenty-First Judicial Court is affirmed. Costs of the appeal are to be split with Troy Odem Guitreau, Livingston Parish Fire Protection District No. 9, and American Alternative Insurance Corporation paying 50%, and Nunzio Inzinna and Emily Inzinna paying 50%.

AFFIRMED.

      Mr. Guitreau testified that there was an agreement between District 2 and District 9 wherein one could automatically respond to dispatches from the other, depending on the nature of the call.

      Mr. Martello is now deceased.

      Although the petition is dated January 30, 2014, the record indicates that this petition was fax-filed on January 24, 2014.

      The plaintiff in the cited case is different than Mr. Guitreau in the present case.

      The defendants allege that Mr. Inzinna is visually impaired and assert that this impairment rendered Mr. Inzinna "completely unable to ensure that he could safely execute his left turn." However, there is nothing in the record to suggest that Mr. Inzinna's visual restrictions contributed in any way to the accident.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. William Gene COX, Jr.
    NUMBER 2018 KA 0769
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 22, 2019
    Scott M. Perrilloux, District Attorney, Patricia P. Amos, Assistant District Attorney, Amite, Louisiana, Counsel for Appellee State of Louisiana
    Robert W. Morgan, Denham Springs, Louisiana, Counsel for Defendant/Appellant William Gene Cox, Jr.
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

The defendant, William Gene Cox, Jr., was charged by bill of information with one count of possession of a schedule II controlled dangerous substance-hydromorphone (count 1), a violation of La. R.S. 40:967(C)(2), and one count of possession of a firearm or carrying a concealed weapon by a convicted felon (count 2), a violation of La. R.S. 14:95.1. He pled not guilty to both counts. Following a trial by jury, the defendant was found guilty as charged on both counts. On count 1, he was sentenced to five years at hard labor, and on count 2, he was sentenced to twenty years at hard labor. The trial court ordered the sentences to run concurrently. The defendant now appeals, arguing that the trial court erred in denying his pre-trial motion to suppress. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On August 20, 2016, Sergeant Nick LoCicero of the Livingston Parish Sheriff's Office was conducting stationary traffic enforcement when around 7:15 p.m. he was approached by a man who identified himself as Rickey Boone. Boone was teary-eyed and appeared to have been pepper-sprayed. Boone told Sgt. LoCicero that he was involved in an altercation with William Cox, the defendant, at the defendant's residence after he went there in reference to a motorcycle that the defendant was supposed to return to him. The two became involved in a heated argument, and when Boone approached the defendant with a stick, the defendant pepper-sprayed him. Based on this account, Sgt. LoCicero believed that the defendant had acted in self-defense, but wanted to visit the defendant's residence to "get further details." Sgt. LoCicero was already familiar with the defendant's home because he had participated in searching it in 2014, which resulted in the seizure of illegal controlled dangerous substances and illegal firearms.

While Sgt. LoCicero was speaking with Boone, another individual named Jerry Valentine arrived on the road. Both Boone and Valentine complained about narcotic distribution from the defendant's home and expressed concern about his well-being because of his drug use. They stated that they had tried to help him, but he "continue[d] to use drugs and take advantage of people." Sgt. LoCicero also received information from Livingston Parish Sheriff's Office Agent Carl Childers, who was investigating narcotic activity at the defendant's residence after he received complaints about the usage and sale of narcotics there. After speaking with Valentine, Sgt. LoCicero traveled to the defendant's home. At some point before entering the defendant's home, he also learned that a failure to appear warrant for a traffic offense had been issued for the defendant.

When he pulled into the driveway, Sgt. LoCicero noticed a number of vehicle parts and "junked vehicles" on the property. The defendant was not home, but Jami Odom, the defendant's girlfriend, arrived. Sgt. LoCicero spoke to her about the fight between Boone and the defendant, and she stated that an altercation had occurred between the two after Boone approached the defendant with a stick. The defendant then arrived and gave Sgt. LoCicero a similar account of the incident. Sgt. LoCicero believed that the defendant had acted in self-defense, but asked the defendant if anything was "going on" at the house regarding illegal narcotic activity. Both the defendant and Odom insisted that they were no longer using drugs, and Odom repeatedly stated that they were attending a methadone clinic. Odom did, however, indicate that she was in possession of marijuana. When Sgt. LoCicero asked to walk through the house, the defendant and Odom agreed and "escorted [him] inside."

Although the defendant was "adamant" that he was not using drugs and did not exhibit any impairment consistent with drug use, Sgt. LoCicero saw drug paraphernalia inside the house, specifically, shortened, cut straws with white powder residue and intravenous paraphernalia. He also saw ammunition and parts of weapons, which Sgt. LoCicero knew the defendant as a felon was prohibited from possessing. Sgt. LoCicero described all of these items as being "in plain view." Odom directed Sgt. LoCicero to the rear bedroom and gave him the marijuana she had placed there. Sgt. LoCicero then "presented [the defendant] with a search waiver at 8:23 p.m. -- Mr. Cox, as well as Ms. Odom -- and they signed giving me consent to search the residence." Sgt. LoCicero testified that he did not offer any inducements for them to sign the waiver or coerce them in any way to sign the form; he also informed them of their right to refuse. He believed that both were free of impairments or influences and understood that they had the right to refuse what they were signing.

Sergeant Brandon Ashford then arrived at the scene, and he and Sgt. LoCicero conducted a search of the defendant's home. They recovered drug paraphernalia, ammunition, parts of weapons, and a number of different types of firearms. They also discovered oxymorphone, a schedule II controlled dangerous substance, in the master bedroom of the home inside an open safe. When asked about the firearms, the defendant accused Boone of planting them in his attic to "get him in trouble." The ammunition recovered in the defendant's workroom, however, was consistent with these firearms.

At the hearing on the motion to suppress, the defendant testified and indicated that he recalled the events of that day only "somewhat" because he had been "doing some heroin" and was beaten with a stick during his altercation with Boone. He added that he might also have taken methadone that morning. He remembered returning to his home that day and seeing Sgt. LoCicero there, but did not remember inviting Sgt. LoCicero inside. He recalled "signing something[,]" but was not wearing his glasses and did not know what he signed. He remembered, however, the following from that day: going to the methadone clinic; buying heroin from a dealer on Siegen Highway at a motel "between the Harley Davidson shop and the methadone clinic[;]" getting into an altercation with Boone over the motorcycle and using pepper spray on him; and going for a drive on his motorcycle after the altercation and refilling it with gas at a nearby Cracker Barrel. The defendant claimed he did not remember speaking to Sgt. LoCicero about his stash of Dilaudid in his home or what he told Sgt. LoCicero about the firearms found in his home.

MOTION TO SUPPRESS

In his sole assignment of error, the defendant contends that the trial court erred in denying his motion to suppress. Before trial, the defendant filed a motion to suppress the physical evidence the police recovered in his home. He argues that the items should not have been allowed into evidence because his and Odom's consent in signing the waiver was not free and voluntary, but an exploitation of the "constitutionally violative entry into defendant's home[.]"

The Fourth Amendment to the United States Constitution and Article I, section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703(A). The State has the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. La. C.Cr.P. art. 703(D).

A three-tiered analysis governs the Fourth Amendment's application to interactions between citizens and police. At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. State v. Spears, 14-0289 (La. App. 1st Cir. 9/19/14), 2014 WL 4668761, at *2 (unpublished), writ denied, 14-2172 (La. 5/22/15), 170 So.3d 983.

At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Louisiana Code of Criminal Procedure article 215.1(A) provides that an officer's reasonable suspicion of crime allows a limited investigation of a person. Spears, 2014 WL 4668761, at *2.

Last, at the third tier, a custodial "arrest," the officer must have "probable cause" to believe that the person has committed a crime. Louisiana Code of Criminal Procedure article 213(A)(3) uses the phrase "reasonable cause." The "probable cause" or "reasonable cause" needed to make a full custodial arrest requires more than the "reasonable suspicion" needed for a brief investigatory stop. Spears, 2014 WL 4668761, at *3.

It is a basic principle of the United States Fourth Amendment that searches and seizures inside a home without a warrant are presumptively unreasonable. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. State v. Nixon, 13-1786 (La. App. 1st Cir. 5/22/14), 2014 WL 2159329, at *3 (unpublished). Searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Spears, 2014 WL 4668761, at *2.

One such exception to the search-warrant requirement is the plain-view exception. Two conditions must be satisfied to trigger the applicability of the doctrine: (1) there must be a prior justification for an intrusion into the protected area; and (2) it must be immediately apparent without close inspection that the items are evidence or contraband. "Immediately apparent" requires no more than probable cause to associate the property with criminal activity. Spears, 2014 WL 4668761, at *2.

A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. A search conducted with the subject's consent is a specifically established exception to both the warrant and probable cause requirements. When the State seeks to rely upon consent to justify a warrantless search, it also must demonstrate that the consent was freely and voluntarily given without coercion. The voluntariness of defendant's consent to search is a question of fact to be determined by the trial court under the facts and circumstances surrounding each case. State v. Latiolais, 563 So.2d 469, 472 (La. App. 1st Cir. 1990).

A trial court's ruling on a motion to suppress the evidence is entitled to great weight because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jarrell, 07-1720, p. 4 (La. App. 1st Cir. 9/12/08), 994 So.2d 620, 625. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. However, a trial court's legal findings are subject to a de novo standard of review. Spears, 2014 WL 4668761, at *3.

In the instant case, there was no error or clear abuse of discretion in the denial of the motion to suppress. Sgt. LoCicero spoke with Odom and the defendant outside the defendant's home regarding the scuffle between the defendant and Boone and simply asked for their accounts of the incident. Additionally, based on the complaints he received from Boone and Valentine regarding the defendant's drug use, the information from Agent Childers that drugs were being distributed from the defendant's home, and his own personal knowledge that illegal controlled dangerous substances had been previously seized from the defendant's home, Sgt. LoCicero asked the defendant if anything was "going on" at the house regarding illegal narcotic activity. We note also that Odom "volunteered" the fact that she was in possession of marijuana. Consequently, Sgt. LoCicero had an objectively reasonable suspicion, supported by specific and articulable facts, that the defendant was engaged in criminal conduct. See Spears, 2014 WL 4668761, at *3-4. (holding that information received from a tip that the defendant, a felon, was in possession of a firearm, the officers' confirmation of the defendant as a convicted felon, and the fact that the defendant's vehicle matched the tip were sufficient to justify the officers' belief that the defendant was a convicted felon in possession of a firearm).

Furthermore, when Sgt. LoCicero asked to walk through the house, the defendant and Odom not only agreed, but escorted him inside the home. Sgt. LoCicero observed "in plain view" shortened, cut straws with white powder residue and intravenous paraphernalia, in addition to ammunition and parts of weapons, which Sgt. LoCicero knew that the defendant, as a felon, was prohibited from possessing.

Sgt. LoCicero also saw the defendant and Odom sign the search waiver form. He did not offer any incentives to them to sign the form, nor did he coerce them in any way. Additionally, they did not exhibit any impairments to make Sgt. LoCicero believe that they were incapable of understanding the significance of signing the form. Although the defendant testified that he had used heroin and possibly methadone earlier that day, Sgt. LoCicero's testimony indicated that the defendant was lucid and understood his right to refuse. The defendant remembered significant details from the day of the search and his arrest, despite his claims that he did not recall various interactions with Sgt. LoCicero. The record reflects that Sgt. LoCicero informed the defendant of his right to refuse and that the defendant's consent was free and voluntary when he agreed to sign the form. See Latiolais, 563 So.2d at 472-73 (holding that the defendant's consent was voluntary where a transcript of his statement indicated he was lucid and where the officer testified that no one threated, forced, or promised the defendant anything to sign the consent form); Jarrell, 07-1720 at 6-7, 994 So.2d at 627 (holding that the consent form was valid where the officer explained the form to the defendant and his girlfriend and advised them of their right to refuse to sign it, and where the defendant and his girlfriend indicated that they understood their rights, verbally consented to a search of their trailer, and signed a written consent to search form). Accordingly, we find that the trial court's denial of the defendant's motion to suppress was supported by the evidence.

The defendant relies on the case of State v. Ragsdale, 381 So.2d 492 (La. 1980) for the proposition that the entry into a home to conduct a search or to make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant supported by probable cause. The State correctly points out, however, that this case is inapposite. In Ragsdale, the officer entered an enclosed portion of the patio and observed the defendant sitting in his friend's living room. Ragsdale, 381 So.2d at 494. He purportedly entered this area of the patio because he was concerned that he would be in danger if someone from the apartment entered the patio and saw him outside the fence. Id. It was from this area that the officer observed the defendant and informed the other officers that the defendant was in the apartment. Id. When the officers knocked and the defendant's friend opened the door, the officers entered the apartment and observed methamphetamine and drug paraphernalia openly displayed on the coffee table. Id. The officers then presented the defendant's friend with a consent to search form after advising him of his Miranda rights and requested that he sign it. Id. He acquiesced after an officer told him that he would simply obtain a search warrant if he did not sign the form. Ragsdale, 381 So.2d at 494-95. The Louisiana Supreme Court ultimately ruled the methamphetamine inadmissible because the officers did not have a reasonable belief, or probable cause to believe, that the defendant would be found in his friend's home. Ragsdale, 381 So.2d at 496-97. Consequently, the Court also ruled that the defendant's friend's consent was invalid and coerced as an exploitation of the officers' prior illegal entry into his apartment. Ragsdale, 381 So.2d at 497-98.

In the instant case, Sgt. LoCicero did not illegally enter the defendant's home, as we have already determined. The defendant and Odom freely consented to his request to walk through the home; therefore, Sgt. LoCicero was legally in the home when he observed the drug paraphernalia and the parts of weapons Thus, when Sgt. LoCicero asked the defendant and Odom to sign the consent form, Sgt. LoCicero did not use a previous illegal entry as a tactic to coerce their consent in signing the search waiver form. We find this case factually distinguishable from Ragsdale and therefore decline to follow Ragsdale.

This assignment of error is without merit.

REVIEW FOR ERROR

We note that our review for error is pursuant to La. C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignment of errors and an "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C.Cr.P. art. 920(2).

In sentencing on the possession of a firearm by a convicted felon conviction, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). Although the failure to impose the fine is an error under La. C.Cr.P. art. 920(2), it certainly is not inherently prejudicial to the defendant. The trial court's failure to impose the fine was not raised by the State in either the trial court or on appeal. As such, we decline to correct the illegally lenient sentence. See State v. Price, 05-2514, pp. 18-22 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277.

CONVICTIONS AND SENTENCES AFFIRMED.

      This sentence is deemed to be served without benefit of probation, parole, or suspension of sentence. See La. R.S. 15:301.1(A).

      At the hearing for the motion to suppress, the prosecutor erroneously referred to the date of the incident as August 20, 2017; however, Sgt. LoCicero's testimony was consistent with the date of the offense listed on the bill of information, August 20, 2016.


author: LANIER, J.

text:
    William REYER v. MILTON HOMES, LLC
    NO. 2018 CA 0580
    Court of Appeal of Louisiana, First Circuit.
    February 25, 2019
    Stephen E. Broyles, Baton Rouge, LA, Counsel for Defendant/Third Party Plaintiff/Appellant, Milton Homes, LLC
    Daren Sarphie, Metairie, LA, Counsel for Plaintiff/Appellee, William Reyer
    Lena Giangrosso, Edgar D. Gankendorff, New Orleans, LA, Counsel for Third Party Defendant/Appellee, Flipnmove Productions, Inc.
    BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
   LANIER, J.

The appellant, Milton Homes, LLC (Milton Homes) appeals the judgment of the Office of Workers' Compensation, District 6 (OWC), which sustained the peremptory exception of improper party filed by the appellee, Flipnmove Productions, Inc. (Flipnmove), and dismissed the appellant's claims against Flipnmove with prejudice. For the following reasons, we reverse the judgment of the OWC and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On July 18, 2017, William Reyer filed a disputed claim for compensation in which he claimed that on June 7, 2017, while in the course and scope of his employment with Milton Homes, he stepped on a cable and injured his left foot and ankle. In its answer, Milton Homes asserted third party demands against Flipnmove, Extreme Reach Crew Services, Inc. (Extreme Reach), and Extreme Reach's workers' compensation insurer, Indemnity Insurance Company of North America (Indemnity). Milton Homes averred in the third party demand that Flipnmove had an agreement with Extreme Reach to provide coverage for workers' compensation liability. Thus, Milton Homes alleged that Flipnmove, Extreme Reach, and Indemnity had primary responsibility to Mr. Reyer for any workers' compensation benefits due to him.

At the time of Mr. Reyer's injury, Flipnmove was producing a television series named "Louisiana Flip and Move." Milton Homes claimed Mr. Reyer executed a document with Flipnmove as a freelance carpenter receiving $ 18 an hour as an employee of Flipnmove, in which he agreed to provide services in connection with the production of the television series as Flipnmove saw fit. Milton Homes alleged that Flipnmove, Extreme Reach, and Indemnity must indemnify Milton Homes for all workers' compensation benefits paid and/or owed to Mr. Reyer.

On November 15, 2017, Flipnmove filed a "peremptory exception of improper party," requesting that it be dismissed from the lawsuit. The OWC ordered, in a judgment signed on February 16, 2018, that the "exception of improper party" be granted, and that Flipnmove be dismissed from the lawsuit with prejudice. It is from this judgment that Milton Homes appeals.

ASSIGNMENTS OF ERROR

Milton Homes assigns nine assignments of error:

1. The OWC erred in considering the exception of improper party as a proper peremptory exception.
2. The OWC erred in granting the exception of improper party.
3. The OWC erred in not considering the exception as one of no cause of action and not denying it on that basis.
4. The OWC erred in not dismissing the exception as presenting matters properly considered at the trial on the merits or summary judgment.
5. The OWC erred in admitting the affidavit of Gregory Quail.
6. The OWC erred in admitting as evidence an order of the 19th Judicial District Court.
7. The OWC erred in excluding as evidence the Flipnmove Freelance Crew Deal Memo and not allowing a proffer.
8. The OWC erred in dismissing the third party demand completely when an allegation of an agreement to provide insurance was not addressed.
9. The OWC erred in dismissing the third party demand with prejudice instead of ordering an amendment or allowing a period for discovery.

DISCUSSION

Milton Homes's first assignment of error questions whether an objection of improper party was a proper exception to be considered before the OWC. Louisiana Code of Civil Procedure article 927 provides a non-exhaustive list of permissible objections raised by peremptory exception. While the objection of improper party is not included in the list, La. C.C.P. art. 927 states that permissible peremptory exceptions are not limited to the listed examples.

The nature of a pleading must be determined by its substance, not by its caption. Wiggins v. State Through Dept. of Transp. and Development , 97-0432 (La. App. 1 Cir. 5/15/98), 712 So.2d 1006, 1008, writ not considered, 98-1652 (La. 9/25/98), 726 So.2d 6. A pleading is construed for what it really is, not what it is erroneously called. Scott v. Hogan , 2017-1716 (La. App. 1 Cir. 7/18/18), 255 So.3d 24, 28 n.4. As we find that the substance of Flipnmove's "exception of improper party" could be construed either as a peremptory exception raising the objection of no cause of action or no right of action, we find it necessary to make separate determinations of whether Milton Homes has a cause of action or a right of action against Flipnmove.

No Cause of Action

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1235 (La. 1993) ; Badeaux v. Southwest Computer Bureau, Inc. , 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217. The burden of demonstrating that the petition states no cause of action is upon the mover. Ramey v. DeCaire , 2003-1299 (La. 3/19/04), 869 So.2d 114, 119. Peremptory exceptions raising the objection of no cause of action present legal questions, which are reviewed using the de novo standard of review. Green v. Garcia-Victor , 2017-0695 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453, writ denied, 2018-0994 (La. 10/8/18), 253 So.3d 800. The court reviews the petition and accepts well-pleaded allegations of fact as true. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Sur. Agency, L.L.C. , 2010-2264 (La. 5/10/11), 63 So.3d 940, 946. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

Milton Homes asserts in its third assignment of error that the objection of improper party in the instant case should have been considered as an objection of no cause of action and denied as such by the OWC. We agree. Insofar as Flipnmove's objection is treated as a peremptory exception raising the objection of no cause of action, the OWC's accepting evidence at the hearing was improper and should not have been considered. In its third party demand, Milton Homes alleged that Flipnmove had obligated itself to provide workers' compensation coverage, thereby making Flipnmove solidarily liable with Milton Homes. Based solely on Milton Homes's well-pled allegations in its petition, under La. R.S. 23:1031 and under La. C.C. art. 2324, Milton Homes has a remedy in the law against Flipnmove, and a cause of action exists. Recognized as a peremptory exception of no cause of action, the OWC committed legal error in sustaining the exception raising the objection of improper party.

No Right of Action

In Flipnmove's memorandum in support of its "peremptory exception of improper party," Flipnmove argued that Mr. Reyer had never been employed by Flipnmove, and did not qualify as a "special employer" under La. R.S. 23:1031, which is titled "Employee's right of action; joint employers, extent of liability; borrowed employees." A peremptory exception pleading the objection of no right of action tests whether the plaintiff or third-party plaintiff (such as Milton Homes) has any interest in judicially enforcing the right asserted. La. C.C.P. art. 927 A(6). Simply stated, the objection of no right of action tests whether this particular plaintiff, as a matter of law, has an interest in the claim sued on. Louisiana State Bar Ass'n v. Carr and Associates, Inc. , 2008-2114 (La. App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 2009-1627 (La. 10/30/09), 21 So.3d 292. Flipnmove's objection of improper party essentially claims that Milton Homes is not the proper party to bring the alleged claims against Flipnmove.

Milton Homes's second assignment of error asserts that the OWC incorrectly granted Flipnmove's "peremptory exception of improper party." The standard of review of a ruling on a peremptory exception raising the objection of no right of action, which presents a question of law, is de novo. The function of an objection of no right of action is a determination of whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927 ; LeCompte v. Continental Casualty Co. , 2016-1359 (La. App. 1 Cir. 7/12/17), 224 So.3d 1005, 1009, writ denied, 2017-1525 (La. 12/15/17), 231 So.3d 635.

If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence. If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections. La. C.C.P. art. 931 ; Howard v. Administrators of Tulane Educational Fund , 2007-2224 (La. 7/1/08), 986 So.2d 47, 59. From the face of Milton Homes's pleadings, we can determine that Milton Homes alleged "[a]s a result of the direct employment relationship with [Mr. Reyer], Flipnmove as well as Extreme Reach and [Indemnity] have primary responsibility to [Mr. Reyer] for all benefits owed under the workers' compensation laws." We find that the pleadings articulate a right of action for Milton Homes to proceed against Flipnmove under the workers' compensation laws of this state.

Evidence was introduced by both Milton Homes and Flipnmove at the trial on the exception, which is permissible for a peremptory exception raising the objection of no right of action. Milton Homes's fifth, sixth, and seventh assignments of error challenge three of the OWC's evidentiary rulings.

The disputed claim for compensation and an excerpt from Mr. Reyer's deposition were introduced into evidence by Flipnmove without objection. In his deposition, Mr. Reyer testified that he worked for Flipnmove as well as for "Chad," meaning Chad Milton, owner of Milton Homes. Mr. Reyer further testified a cameraman for Flipnmove would give him direction as to where to work in conjunction with the television program, but he still "answered to Chad" as far as reporting the hours he worked and what he worked on. Mr. Reyer also stated a supervisor other than Mr. Milton was on the worksite to direct work. Mr. Reyer also stated he filled out documents pertaining to at-will employment with Flipnmove as a freelance carpenter, working for $ 18 an hour.

The fifth assignment of error asserts that the OWC incorrectly admitted the affidavit of Gregory Quail. The affidavit states that Mr. Quail is the president of Flipnmove and has knowledge of its employment practices. Mr. Quail further states that Mr. Reyer was never hired by Flipnmove, and that an employment contract was never executed between Mr. Reyer and Flipnmove relative to the "Louisiana Flip and Move" television series. Mr. Quail further stated that Mr. Reyer was at all times supervised by Milton Homes, and that Mr. Reyer was never under the direct control of Flipnmove.

Milton Homes objected to the introduction of the affidavit as hearsay, and suggested that it would only be proper evidence in a motion for summary judgment. A sworn affidavit is considered hearsay and is, therefore, not competent evidence unless it is specifically authorized by statute. Board of Com'rs of Port of New Orleans v. Louisiana Com'n on Ethics for Public Employees , 416 So.2d 231, 238 (La. App. 1 Cir.), writ denied, 421 So.2d 248 (La. 1982) ; Occidental Properties Ltd. v. Zufle , 2014-0494 (La. App. 5 Cir. 11/25/14), 165 So.3d 124, 130, writ denied, 2014-2685 (La. 4/10/15), 163 So.3d 809.

Milton Homes's sixth assignment of error asserts the OWC incorrectly admitted an order from the 19th Judicial District Court, which granted or denied various motions in a matter titled Brent J. Menard v. SPX Cooling Technologies, Inc., et al. , docket number 649687. Milton Homes objected to the admission of the order before the OWC. The order was apparently introduced as an example of the appropriateness of a "peremptory exception of improper party." It is undisputed that the actual content of this document is not material to the instant case.

Milton Homes's seventh assignment of error contends that the OWC improperly excluded the Flipnmove "Freelance Crew Deal Memo" (memo) as evidence, and further erred in not allowing Milton Homes to proffer the evidence. The memo was offered by Milton Homes as proof that Mr. Reyer was employed by Flipnmove as a freelance carpenter, and that Flipnmove agreed to cover Mr. Reyer for workers' compensation insurance through Extreme Reach. Flipnmove objected to the introduction of the memo, arguing that it is not a contract between Mr. Reyer and Flipnmove, since the memo was not signed by a representative of Flipnmove.

The OWC characterized the memo as "not-authentic-like," and not containing "any of the necessary elements to be useful or worthy" in the proceeding. The OWC then disallowed the memo into evidence. Milton Homes did not proffer the memo after the OWC's ruling.

Typically, without a proffer of evidence, appellate courts have no way of ascertaining the nature of the excluded evidence. Williams v. Williams , 2006-2491 (La. App. 1 Cir. 9/14/07), 970 So.2d 633, 640. However, Milton Homes had attached the memo to its opposition to the "peremptory exception of improper party," and it was made part of the record and is sufficiently indicated. Therefore, we are still able to ascertain its nature for the purpose of reviewing the OWC's decision to exclude it from evidence. See State v. Williams , 2006 WL 3110980, at *2 (La. App. 1 Cir. 11/3/06) (unpublished opinion), citing State v. Adams , 550 So.2d 595, 599 (La. 1989) (Dennis, J., concurring); see also State v. James , 2013 WL 5915219, at *4 (La. App. 1 Cir. 11/1/13) (unpublished opinion).

Whether the memo constitutes a valid contract between Mr. Reyer and Flipnmove is immaterial in determining whether Milton Homes has a right of action against Flipnmove. Mr. Reyer's deposition testimony indicates that Mr. Reyer had discussions with representatives of Flipnmove regarding employment, and that he received some degree of direction from Flipnmove on his work related to the television series. Regardless of the propriety of the OWC's rulings on the admissibility of Quail's affidavit, the order from the 19th JDC, or the memo, those issues are moot. The allegations pled in Milton Homes's third party demand, and the deposition excerpts of Mr. Reyer introduced at the hearing, are sufficient to show that Milton Homes has a right of action against Flipnmove in determining the true nature of the employment relationship between Mr. Reyer, Milton Homes, Flipnmove, and Extreme Reach. Recognized as a peremptory exception raising the objection of no right of action, the OWC committed legal error in sustaining the exception of improper party.

CONCLUSION

We find that, whether it is construed as an exception of no cause of action or as an exception of no right of action, Flipnmove's exception of improper party was incorrectly sustained by the OWC. The judgment of the OWC must therefore be reversed, and the matter remanded to the OWC for further proceedings. Based on our ruling, we pretermit discussion on Milton Homes's remaining assignments of error.

DECREE

The judgment of the Office of Workers' Compensation, District 6, sustaining the peremptory exception of improper party filed by the appellee, Flipnmove Productions, Inc. is reversed, and the matter is remanded for further proceedings. All costs of this appeal are assessed to the third party plaintiff/appellee, Flipnmove Productions, Inc.

REVERSED AND REMANDED.

      Mr. Reyer admitted in his deposition testimony that he was an employee of Milton Homes.

      Milton Homes's self-insured fund, Louisiana Home Builders' Association Self Insurers' Fund, was also named as a defendant along with Milton Homes in Mr. Reyer's disputed claim, but was subsequently dismissed from the suit without prejudice.

      Milton Homes averred that at the time of the agreement, Extreme Reach was known as PES Payroll Services.

      The other third party defendants did not join in Flipnmove's exception.

      Louisiana Revised Statutes 23:1031(C) states, in pertinent part:
      In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter.

      Item # 3 of the order reads as follows: "The University of Louisiana System Foundation's peremptory exception of improper party is hereby GRANTED and Plaintiff's claims against the University of Louisiana System Foundation are hereby dismissed with prejudice."


text:
    Charles W. HORN v. Charles H. DUNN and Boyd, Fernambucq, Vincent & Dunn, P.C.
    1160026
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rami ACHDUT v. Jeff HUFF
    1151328
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WAL-MART STORES EAST, L.P. v. Dana WILLIAMS
    1151177
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    George Locke GALBRAITH et al. v. REGIONS BANK
    1160044
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Lorna BLAND v. Myra Bland TATANO et al.
    1160228
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Minnie BROWN v. Deborah TISDALE, M.D., et al.
    1160126
    Supreme Court of Alabama.
    October 13, 2017 Reh. denied December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ALIMGMT ALABAMA, INC., and Ali Hamid v. TEAM HOLDINGS, LLC
    1160262
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    TEAM HOLDINGS, LLC, and Slidell Oil Co. v. ALIMGMT ALABAMA, INC., and Ali Hamid
    1160266
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Jerry M. BLEVINS
    1160312
    Supreme Court of Alabama.
    November 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE CERTIFIED AUTO SALES OF CHILTON COUNTY, LLC, and John Carpenter
    1160425
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Stacia CROMARTIE
    1160400 (2150989)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    George Locke GALBRAITH et al. v. REGIONS BANK
    1160282
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Valerie ABBOTT, in her official capacity as council member of the Birmingham City Council, et al. v. William BELL, in his official capacity as the Mayor of Birmingham, et al.
    1160360
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brenda DICKERSON et al. v. William BELL, in his official capacity as the Mayor of Birmingham, et al.
    1160366
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    ERICA LANE ENTERPRISES, INC. v. IUE-CWA PENSION FUND et al.
    1160480
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CHAIN STORE CONSTRUCTION, INC. v. Doris SWADER
    1160499
    Supreme Court of Alabama.
    October 20, 2017 Reh. denied December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Doris SWADER v. CHAIN STORE CONSTRUCTION, INC.
    1160500
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Geraldine Grant BRYSON v. Jimmy HARRIS
    1160449
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bryant BANK v. M.E.C. INVESTMENTS, LLC
    1160502
    Supreme Court of Alabama.
    December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Linda R. SULLY et al. v. Judith W. THYE
    1160527
    Supreme Court of Alabama.
    December 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Michael GAY and Larry Gene Gay v. Robert Howard GAY and Howard Wayne Gay
    1160567
    Supreme Court of Alabama.
    November 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andrew F. SPEAR III v. Martha DARDEN
    1160555
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason PAYTON v. Adam THRASHER
    1160599
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE GRANGER, THAGARD & ASSOCIATES, INC.
    1160576 (2150937)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Louis VANSCOY, as personal representative of the Estate of Robert John Sajnacki, deceased v. WHISPERING PINES OF LAY LAKE, INC.
    1160625
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Louis VANSCOY, as personal representative of the Estate of Robert John Sajnacki, deceased v. Fredrick B. BERREY, Jr.
    1160626
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE NATIONWIDE AGRIBUSINESS INSURANCE CO. et al.
    1160606
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Winfrid WAID v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    1160661
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J. Thomas BARNETT, Jr., and City of Birmingham v. ELBOW RIVER MARKETING LIMITED PARTNERSHIP
    1160678
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M & T BANK v. U.S. BANK NATIONAL ASSOCIATION, successor by merger to LaSalle Bank NA, as trustee for Washington Mutual Asset- Backed Certificates WMABS Series 2006-HE4 Trust
    1160673
    Supreme Court of Alabama.
    December 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CHIPPEWA LAKES, LLC v. ALABAMA STATE PORT AUTHORITY
    1160716
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Donald R. HORTON and David Auld
    1160816
    Supreme Court of Alabama.
    December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Mary Jane DARBY et al. v. James H. CRENSHAW and the Estate of Victoria Darby Crenshaw, deceased
    1160732
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Craig J. PAYNE v. ALABAMA STATE UNIVERSITY et al.
    1160733
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Matthew David BAILEY
    1160755 (CR-15-0974)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Paisley CRAIG and Brandon Craig v. Stephen TYGART, M.D., and Huntsville OBGYN Associates
    1160799
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Anthony TYSON
    1160935 (CR-14-0945)
    Supreme Court of Alabama.
    December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Marvin FRANKLIN v. STATE
    1160828
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE David KIMBROUGH
    1160936 (CR-16-0358)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jack GRANGER
    1160846 (2150938)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Davon Lashon DAVIS
    1160892 (CR-16-0499)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Henry Clay SMITH III
    1160899 (CR-16-0650)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Mark HAYDEN v. William CASHION et al.
    1160940
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Joe Nathan JAMES, Jr.
    1160971 (CR-16-0229)
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE TTR CONSTRUCTION, LLC, et al.
    1160951 (2160678)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Dewayne Dwhite CHAMBERS
    1161014 (CR-16-0306)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Patricia BLACKMON
    1160943 (CR-14-0317)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Rashid Joncar STRODE
    1161037 (CR-16-0537)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE LIBERTY RENT GUARANTEE, LLC
    1161057
    Supreme Court of Alabama.
    December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Ronnie HOPSON
    1161069 (2150836)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Silas MARTIN
    1161074 (CR-16-0778)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tyrone Rashawn VAIL
    1161075 (CR-16-0176)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Shannon Ray JOHNSON
    1161043 (CR-15-0643)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE JACKSON COUNTY COMMISSION
    1161060 (2160257)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE RENASANT BANK f/k/a M & F Bank
    1161085 (2160097)
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Lee FORD
    1161081 (CR-16-0291)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Thomas Sterling BIGGART
    1161084 (CR-16-0311)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Spanley Eugene Edric HARRIS
    1161077 (CR-16-0693)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jovontai Qudrius DICKERSON
    1161078 (CR-15-1510)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Shannon Ray JOHNSON
    1161083 (CR-16-0481)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Eric WASHINGTON
    1161086 (CR-16-0075)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Calvin MASSEY
    1161088 (CR-16-0475)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE George Braxton GREEN
    1161090 (CR-16-0755)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE A.L.P.
    1161098 (CR-16-0569)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Mitchell MARBURY
    1161102 (CR-16-0345)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Eric DARBY
    1161103 (CR-16-0654)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jasen Scott CARADINE
    1161121 (CR-16-0090)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE William N. LUCY
    1161104 (2160354)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Matthew D. TRAPP
    1161116 (CR-16-0083)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Calvin MAYS
    1161110 (CR-16-0779)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ricky Nelson BASS
    1161120 (CR-16-0827)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Randall Lamar THOMAS
    1161122 (CR-16-0305)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jason ELKINS and Paula Elkins
    1161127 (2160745)
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James CREECH
    1161128 (2160165)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Eric HOLIFIELD
    1161130 (CR-16-0632)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Cindy Kaye Henderson REESE
    1161124 (CR-16-0391)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE David L. LUCAS
    1161134 (CR-16-0902)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Drapher Oneal BONMAN
    1161137 (CR-16-0453)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Henry ROBINSON
    1161143 (CR-16-0769)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lance William PARKER
    1161148 (2160467)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.J.
    1161150 (2160595)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Richard J. JENKINS
    1161149 (CR-16-0660)
    Supreme Court of Alabama.
    October 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Joe HOLT
    1161138 (CR-16-0648)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Dewayne Lamar WALKER
    1161141 (CR-16-0298)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Christopher Lee PRICE
    1161153 (CR-16-0785)
    Supreme Court of Alabama.
    November 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.J.
    1161151 (2160596)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.J.
    1161152 (2160597)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lisa Meshelle PERRY
    1161154 (CR-15-1051)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE V.A.
    1161172 (2160487)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Melvin SMITH
    1161157 (CR-16-0046)
    Supreme Court of Alabama.
    October 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jonathan FULLER
    1161176 (2160201)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert LITTLETON III
    1161174 (2160403)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terry Lee HEISER
    1161179 (CR-15-1386)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Danny Wayne ROBINSON
    1170001 (CR-16-0683)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jonathan Lee MITCHELL
    1170002 (CR-16-0684)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Rick MARTIN
    1170004 (CR-16-0546)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jay Cee MAYNOR
    1170018 (CR-16-0269)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Johnny EDWARDS
    1170015 (CR-15-0335)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ronald E. WEEMS
    1170016 (CR-16-0928)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Dewayne JACKSON
    1170010 (CR-16-0407)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Latransezon MALLOY
    1170011 (CR-16-0099)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terry Lee MCKINNEY
    1170012 (CR-16-0586)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Deandre COOPER
    1170023 (CR-16-0903)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Eugene Duyant KELLY
    1170025 (CR-16-1060)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Decory KNIGHT
    1170032 (CR-16-0640)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ronnie Odell PARKER
    1170037 (CR-16-0747)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Allen Alto MADDOX
    1170038 (CR-16-0686)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Fred Lee BRYANT
    1170044 (CR-16-0772)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Gary BELL
    1170047 (2160911)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James BEAMON-BEY
    1170060 (CR-16-0634)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.M.
    1170068 (2150961)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Edward Charles LEWIS
    1170052 (CR-16-0271)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Roger Allen CALHOUN
    1170059 (CR-16-0915)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE B.E.
    1170071 (CR-16-0529)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Charles QUICK and Donald Quick
    1170072 (2160178)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ralph T. WEST
    1170075 (CR-16-0754)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Stephen Wayne MOUNT
    1170084 (CR-16-0674)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Carlton Wayne HOLMAN
    1170085 (CR-16-0656)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James Lee BURL
    1170073 (CR-16-0400)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Wendell Lovell SMITH
    1170078 (CR-16-0392)
    Supreme Court of Alabama.
    November 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Theron Lamar CHRISTIAN
    1170096 (CR-15-1181)
    Supreme Court of Alabama.
    December 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.