author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Edwin Albert MILLER
    18-639
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Phillip Terrell, Jr., District Attorney - 9th Judicial District, Numa V. Metoyer, III, Assistant District Attorney - 9th Judicial District, Amani P. Augustine, Assistant District Attorney - 9th Judicial District, P.O. Dristrict 7358, Alexandria, LA 71306, Telephone: (318) 473-6650, COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, P.O. Box 1641, Lake Charles, LA 70602, Telephone: (337) 491-0570, COUNSEL FOR: Defendant/Appellant - Edwin Albert Miller
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

Defendant Edwin Albert Miller was charged with one count of stalking, second offense, a violation of La.R.S. 14:40.2(4). After a twelve-person jury unanimously found him guilty of the offense, he was sentenced to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served. On appeal, Defendant asserts that his defense counsel's failure to object to the impaneling of a twelve-person jury in the trial of a six-person-jury offense constitutes a claim for ineffective assistance of counsel, and thus requires a reversal of his conviction. He additionally argues that the trial court erred in denying his challenges for cause. Finally, Defendant challenges his sentence as unconstitutionally excessive.

For the following reasons, we affirm Defendant's conviction and sentence.

I.

ISSUES

We must decide:

(1) whether the erroneous trial by a jury of twelve instead of a properly-constituted jury of six is reversible error;
(2) whether the trial court erred in denying Defendant's challenges for cause; and
(3) whether the sentence imposed by the trial court was unconstitutionally excessive, in violation of La.Const. art. 1, § 20.

II.

FACTS AND PROCEDURAL HISTORY

In 2009, Defendant was arrested and pleaded guilty to stalking M.S., a violation of La.R.S. 14:40.2. He was initially ordered to pay a $ 1,000 fine and serve a one-year sentence in Rapides Parish jail. However, the sentence was suspended, and Defendant was thereafter placed on supervised probation for two years.

The matter giving rise to the instant appeal occurred in 2016, when Defendant was charged by Bill of Information with stalking, second offense, a violation of La.R.S. 14:40.2(4), alleging that he did willfully, maliciously, and repeatedly follow and/or harass and threaten M.S. again with the intent to place her in reasonable fear of serious bodily harm. He entered a plea of not guilty to the offense.

A jury trial was held thereafter. Before conducting voir dire , the court noted that it was going "to select a twelve-person jury for a criminal case." After a panel of twelve jurors had been accepted and sworn, defense counsel then objected to the composition of the jury by noting that under La.Code Crim.P. art. 782, a twelve-person jury is only appropriate when the punishment is necessarily confinement at hard labor, whereas a six-person jury is appropriate when the punishment may be confinement at hard labor instead. Because stalking, second offense, is punishable "with or without hard labor" under La.RS. 14:40.2(4), defense counsel argued that Defendant's case ought to be heard by a six-person jury. The trial court, however, denied the defense's request for a six-person jury, and twelve jurors were accepted and sworn to the jury.

During voir dire , each side was granted twelve peremptory challenges. Defense counsel raised several challenges for cause with respect to prospective jurors, and they were denied by the trial court. The case was then decided before a panel of twelve jurors, which unanimously found Defendant guilty of the offense charged.

In analyzing the sentencing factors of La.Code Crim.P. art. 894.1, the trial court concluded from the evidence that Defendant was a most egregious offender and thus sentenced him to serve a maximum term of twenty years imprisonment, without the benefit of parole, probation, or suspension of sentence, with credit for time served. A Motion to Reconsider Sentence was denied.

On appeal, Defendant now argues that defense counsel's failure to object to the twelve-person jury prior to the jury's swearing constitutes ineffective assistance of counsel such that Defendant's conviction should be reversed. Further, he asserts that the trial court erroneously denied his challenges for cause. Finally, Defendant challenges his sentence as unconstitutionally excessive.

III.

LAW AND DISCUSSION

Ineffective Assistance of Counsel

Defendant asserts a claim for ineffective assistance of counsel at trial. He contends that his defense counsel's failure to object to the impaneling of a twelve-person jury for a six-person offense constituted deficient performance of such a serious nature that prejudice must be presumed. As a result, Defendant argues that his conviction should be reversed.

At the outset, the issue of ineffective assistance of counsel is more appropriately addressed in an application for post-conviction relief filed before the trial court, where a full evidentiary hearing can be conducted. State ex rel. A.B. , 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where the record discloses sufficient evidence to rule on the merits of an ineffective assistance claim, an appellate court may consider the issues raised on appeal in the interests of judicial economy. Id.

Finding the record in this case sufficient, we shall assess Defendant's claim of ineffective assistance of counsel under the two-part test established by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland analysis, Defendant must first demonstrate that his trial counsel's performance was deficient and that he was prejudiced by the deficiency.

Counsel's performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland , supra , 466 U.S. at 686, 104 S.Ct. at 2064. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland , supra , 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow , 612 So.2d 191, 199 (La.App. 4 Cir. 1992).
This Court has recognized that if an alleged error falls "within the ambit of trial strategy" it does not "establish ineffective assistance of counsel." State v. Bienemy , 483 So.2d 1105 (La.App. 4 Cir. 1986). Moreover, as "opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel's trial decisions. Neither may an attorney's level of representation be determined by whether a particular strategy is successful." State v. Brooks , 505 So.2d 714, 724 (La.1987).

State v. Schexnaider , 03-144, p. 18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462 (quoting State v. Griffin , 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40 ).

Defendant cites as deficient performance his trial counsel's failure to object to a twelve-person jury where the charge of stalking, second offense imposes a permissive, rather than mandatory, punishment of confinement at hard labor. Louisiana Code of Criminal Procedure Article 782(A) states that "[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict." La.Code Crim.P. art. 782(A). In contrast, "[c]ases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict." Id. (emphasis added). The crime of stalking, second offense is punishable "with or without hard labor[.]" La.R.S. 14:40.2(B)(4). Notwithstanding any deference accorded to trial counsel's strategy, we submit that the case should have been tried before a jury of six, rather than twelve, veniremen.

While there is no doubt that an error occurred with respect to the size of the selected jury in this case, our supreme court has held that "the error in trying a six-person jury offense in a 12-person jury forum no longer constitutes a non-waivable structural defect in the proceedings, but 'falls within the vast category of trial errors which are subject to harmless error analysis and which warrant reversal only where the defendant is actually prejudiced.' " State v. Brown , 11-1044, p. 3 (La. 3/13/12), 85 So.3d 52, 53 (quoting State v. Jones , 05-226, p. 3 (La. 2/22/06), 922 So.2d 508, 511 ).

In light of the unanimous verdict reached by the twelve-juror panel, we cannot say that Defendant has been prejudiced in his case. But for counsel's failure to object to the composition of the jury, any six of the twelve jurors in this case would nevertheless have rendered a guilty verdict because all twelve jurors found Defendant guilty. In fact, Defendant received six additional factfinders than constitutionally mandated, and was thus afforded greater protection than required by law. Therefore, because the result of the proceeding would not have been any different had defense counsel objected prior to the acceptance of the jury, we find that the error of impaneling a twelve-person jury in the trial of a six-person offense was harmless. Accordingly, we find that Defendant was not actually prejudiced due to the errors of both defense counsel and the trial court.

Challenge for Cause

Defendant argues that the trial court erred in denying his challenges for cause regarding juror, Ms. Humphries; second alternate juror, Ms. Trotter; and three potential jurors, Ms. Jordan, Ms. Ryder, and Ms. Mier. As a result, Defendant alleges that the erroneous denials caused him to exhaust all of his peremptory challenges.

The grounds for which a juror may be challenged for cause are set forth in La.Code Crim.P. art. 797. The defense may challenge a juror for cause if "[t]he juror is not impartial, whatever the cause of his partiality." La.Code Crim.P. art. 797(2). A juror may additionally be challenged for cause on the ground that "[t]he relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]" La.Code Crim.P. art. 797(3). The defense may also challenge a juror for cause on the basis that he or she "will not accept the law as given to him by the court[.]" La.Code Crim.P. art. 797(4).

The Louisiana Supreme Court has set forth the following standard for reviewing a trial court's denial of challenges for cause:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. "A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied." However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to law and evidence.

State v. Scott , 04-1312, pp. 16-17 (La. 1/19/06), 921 So.2d 904, 921 (citations omitted), overruled on other grounds by State v. Dunn , 07-878 (La. 1/25/08), 974 So.2d 658. Moreover, this court has stated

When the defendant exposes the partiality of a juror, the juror may not be automatically excluded for cause. The state or the trial court may rehabilitate the juror by asking questions and obtaining answers demonstrating the juror's ability to decide the case impartially pursuant to law and evidence. Ultimately, the trial court has the power to determine whether or not a juror may be excused for cause.

State v. Noel , 15-617 (La.App. 3 Cir. 12/9/15), 181 So.3d 223, rev'd on other grounds , 16-43 (La. 10/18/17), 236 So.3d 523.

Accordingly, we shall review the challenges for cause denied by the trial court to determine whether the trial court abused its discretion.

Juror Ms. Humphries

When the parties considered Ms. Humphries, a nursing student, the State accepted her. The defense responded with a challenge for cause because "[s]he's got tests, she's pregnant, she doesn't want to be here." The trial court then acknowledged that while Ms. Humphries affirmatively answered that her jury service would affect her life and her future, she would not miss any tests because of the trial, and thus the challenge for cause was denied. The trial court then held, "[s]he did answer affirmatively as far as affecting her life and future. However, I do think that she was rehabilitated."

Ultimately, the defense failed to object to the trial court's denial of its challenge for cause regarding Ms. Humphries. Instead, defense counsel expressly replied, "Accept[,]" and Ms. Humphries was then seated as juror number seven. Additionally, our review of the record reveals that while Defendant had six peremptory challenges remaining at the time the challenge for cause was denied, he did not use any to exclude Ms. Humphries.

To prove there has been an error warranting reversal of a conviction,

[A] defendant must demonstrate 1) erroneous denial of his challenge for cause, and 2) use of all of his peremptory challenges. Additionally, the defendant must show that, when the trial court denied his challenge for cause, he used one of his peremptory challenges curatively to remove that juror, thereby reducing his number of peremptory challenges, or waive the issue on appeal. This is so even in a case where the defendant uses all of his peremptory challenges.

State v. Guillory , 16-237, p. 6 (La.App. 3 Cir. 11/2/16), 206 So.3d 1153, 1157 (quoting State v. Mitchell , 08-136, pp. 14-15 (La.App. 5 Cir. 1/13/09), 7 So.3d 720, 730 ), writ denied , 16-2186 (La. 9/22/17), 227 So.3d 823. While this court has held that a defendant need not exhaust all of his peremptory challenges before complaining of a trial court's denial of his challenge for cause on appeal, the "defendant must still demonstrate prejudice arising from the ruling." State v. Lormand , 00-435, p. 8 (La.App. 3 Cir. 10/11/00), 771 So.2d 734, 738 (quoting Statev. Guillory , 97-179 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, writ denied , 98-955 (La. 10/9/98), 726 So.2d 17 ), writ denied , 00-3214 (La. 11/2/01), 800 So.2d 866 ). "However, an erroneous ruling on a challenge for cause which does not deprive a defendant of one of his peremptory challenges will not provide grounds for a reversal of a defendant's conviction and sentence." State v. Magee , 11-574, pp. 26-27 (La. 9/28/12), 103 So.3d 285, 307, cert. denied , 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

In this case, Defendant failed to raise an objection to the denial of his challenge for cause to Ms. Humphries before the trial court, but instead expressly accepted her. In light of these facts, Defendant cannot now complain of the trial court's denial of the challenge for cause on appeal where the defense's ultimate acceptance of Ms. Humphries was accompanied by neither an objection nor the exhaustion of all, let alone the exercise of any, of his six remaining peremptory challenges. As such, Defendant has failed to demonstrate that the trial court's refusal to sustain his challenge for cause has prejudiced him in any manner.

Alternate Juror Ms. Trotter

During voir dire , prospective juror Ms. Trotter stated that she had been the victim of a domestic violence incident between herself and her ex-husband. While charges were filed in the matter, Ms. Trotter stated that she dropped the charges later. However, upon further questioning from the State, Ms. Trotter affirmatively responded that her experience would not hamper her ability to be fair and that she would base the verdict on the law and evidence.

On appeal, appellate counsel cites the possibility that Ms. Trotter "could easily have second thoughts based on her prior experiences" as the basis for why the challenge for cause should have been granted. While the defense challenged Ms. Trotter for cause before the trial court, it failed to state any of the grounds thereof as enumerated in La.Code Crim.P. art. 797.

A defendant may not assign as error a court's refusal to sustain a challenge for cause made by him, unless he makes an objection at the time of the ruling that states the nature of the objection and grounds therefor. La. C. Cr. P. art. 800(A). Accordingly, in a challenge for cause, the challenging party has the burden of showing that a prospective juror should be excluded based on one or more of the grounds in La. C. Cr. P. art. 797.

State v. Hampton , 50,561, p. 14 (La.App. 2 Cir. 5/18/16), 195 So.3d 548, 557 (citation omitted), writ denied , 16-1181 (La. 5/26/17), 221 So.3d 854.

In ruling on Defendant's challenge for cause, the trial court found, "[s]he stated that she had no affect [sic] in this case. She thought everything was done fairly, she dropped the charges herself. I will deny the challenge for cause." In so ruling, the trial court named Ms. Trotter the second alternate juror. However, while Ms. Trotter heard all the evidence presented, she never participated in reaching the verdict because she was ultimately excused after closing arguments. Thus, while we do not believe that the trial court abused its discretion in denying the challenge for cause, we additionally find that any error arising therefrom was harmless given her ultimate discharge from the deciding jury panel.

Potential Juror Ms. Jordan

Prospective juror Ms. Jordan stated to the court during voir dire that her husband and brother worked for the Department of Corrections. She disclosed that her brother hired Phillip Terrell, the District Attorney for Rapides Parish, to represent him in defending a malfeasance charge, which resulted in a successful expungement of the offense. The following colloquy took place:

BY MR. METOYER [STATE]:
... Would you be more likely to go my way because Mr. Terrell represented your brother?
BY MS. JORDAN:
Possibly.
BY MR. METOYER:
Possibly. Okay. And why don't you tell us why, possibly why?
BY MS. JORDAN:
It was a hard case. I was real young so, I mean, of course I don't know any details about the case -
....
BY MR. METOYER:
But do you, what I'm asking you is this. Do you think you can be fair to this man ... even though I work for Mr. Terrell? And I need you to be honest. It's either yes or no?
BY MS. JORDAN:
Yes.
BY MR. METOYER:
You think you can.
BY MS. JORDAN:
(Nods in the affirmative)
....
BY MR. METOYER:
Okay. Would you be able to disregard the fact that I work for Mr. Terrell and just stick to the elements of the crime and the evidence that we present? Would you base your opinion just on that?
BY MS. JORDAN:
Yes, sir.
BY MR. METOYER:
Okay. So in that respect you could be fair to this defendant?
BY MS. JORDAN:
Yes, sir.

In challenging Ms. Jordan for cause, the defense argued that Ms. Jordan did not want to be there and noted that "she didn't want to get involved." In ruling on the challenge, the trial court remarked that Ms. Jordan admitted a possible favoritism toward the State, but it nevertheless found that "she could be fair to the defendant and base everything on the evidence and testimony and not on the fact that just because Mr. Terrell is the DA [a]nd that she could be fair."

On appeal, Defendant cites Ms. Jordan's familial relationship to law enforcement officers and her brother's connection to Phillip Terrell in arguing that Ms. Jordan's "initial response should have been enough" for the challenge for cause to be granted. However, at no point did Defendant argue to the trial court that Ms. Jordan's familial relationship to law enforcement officers and/or the district attorney was a basis for challenging her. Therefore, we find that that ground was not properly preserved for review pursuant to La.Code Crim.P. art. 800(A).

Nevertheless, nothing in the record suggests that the trial court abused its discretion in denying the challenge for cause regarding Ms. Jordan. Despite her reservations about serving on the jury, she stated that she could put aside the State's counsel's association with Mr. Terrell. She affirmatively responded that she could base her opinions on the elements of the crime and the evidence and could think of no reason why she should not or could not serve as a juror.

Potential Juror Ms. Ryder

The defense challenged prospective juror Ms. Ryder for her associations with law enforcement, as well as her familiarity with two of the witnesses. During voir dire , Ms. Ryder stated to the trial court that her husband, father-in-law, brother-in-law, and brother have all worked or currently work in law enforcement. She also interned at the Federal Bureau of Prisons in 2001. Further, Ms. Ryder disclosed to the trial court that she knew two of the witnesses, Mr. Bruner and Mr. Collins, through her husband and that she socialized with them on several occasions, including Mr. Bruner's recent attendance at a barbeque at her home. Finally, Ms. Ryder disclosed that her mother's nephew is currently serving a life sentence in prison. Despite her many connections to law enforcement and familiarity with some of the witnesses, Ms. Ryder stated that she could remain fair. However, Defendant failed to raise the issues regarding Ms. Ryder's familial associations with law enforcement officers, her internship, and her cousin's imprisonment in its challenge for cause. Accordingly, this court may not consider those arguments which were not properly preserved on appeal. See La.Code Crim.P. art. 800(A).

Defendant also argues on appeal that the challenge for cause regarding Ms. Ryder should have been granted given her socializing with two of the witnesses. The following colloquy took place between the trial court and Ms. Ryder:

BY THE COURT:
You or [sic] connected in any way with the witnesses named?
BY MS. RYDER:
I know some of the witnesses.
BY THE COURT:
Who do you know?
BY MS. RYDER:
[Bruner] and Collins.
BY THE COURT:
And how do you know them?
BY MS. RYDER:
Just through my husband. [Bruner] was at our house this weekend.
BY THE COURT:
Socialize with them?
BY MS. RYDER:
Just on occasion.
BY THE COURT:
Knowing them under circumstances that you see them, does that in any way affect your ability to make a fair and impartial decision?
BY MS. RYDER:
No, sir.

In raising the challenge for cause, the defense speculated that Ms. Ryder talked about the case with Mr. Bruner at the barbecue, wherein he allegedly told her to "tell them you don't have any problem with cops." The record, however, shows Ms. Ryder never indicated any such conversation ever took place. The State pointed out that the defense could have questioned her about the possibility of such a conversation had it suspected one. The State also noted that at the time of the barbecue, Ms. Ryder had no way of knowing she would be a possible juror in this case in which Mr. Bruner was a witness. Ultimately, Ms. Ryder testified that her association with these witnesses would not affect her ability to make a fair and impartial decision.

In State v. Juniors , 03-2425, p. 11 (La. 6/29/05), 915 So.2d 291, 306, cert. denied , 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), our supreme court held that

The existence of a relationship, even one of blood or marriage, is not sufficient to disqualify a juror unless the facts reveal that the nature of the relationship is such that it is reasonable to conclude it would influence the juror in arriving at a verdict. LSA-C.Cr.P. art. 797. The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the person injured by the offense, the district attorney, or defense counsel. It requires that jurors be fair and unbiased. Fairley , 25,951 at 3, 645 So.2d at 216.

Here, the trial court determined that the challenge for cause should be denied based on Ms. Ryder's statement that she could be fair and impartial. Given the fact that the trial court was in the best position to evaluate Ms. Ryder's credibility, coupled with Ms. Ryder's answers demonstrating that she could decide the instant matter independent of her acquaintances, we conclude that the trial court did not abuse its discretion in denying the challenge for cause.

Potential Juror Ms. Mier

Prospective juror Ms. Mier stated during voir dire that she and her husband had been victims of crime when their home was burglarized fifteen years ago. The burglars were never caught, and Ms. Mier believed that law enforcement did not properly investigate the matter. However, she stated that this would not affect her ability to digest the facts and make a fair and impartial decision in this case. Further, Ms. Mier raised her hand when the defense questioned if any of the jurors simply did not want to be there. She then stated that she is the primary caretaker and sole source of transportation for her eighty-six-year-old mother. While Ms. Mier stated that she would be thinking of her mother during the trial, she did not know of any other reason why she could not be fair and impartial.

On appeal, Defendant cites the prior burglary and Ms. Mier's status as her mother's caretaker as reasons why the challenge for cause should have been granted. "In Louisiana, the fact that a juror personally has been the victim of a crime will not necessarily preclude that juror from serving on a jury as long as the juror's partiality has been unaffected." State v. Dorsey , 10-0216, p. 38 (La. 9/7/11), 74 So.3d 603, 631. Further, Ms. Mier stated in both instances that she could remain fair and impartial. Nothing in the record suggests Ms. Mier's experience as a crime victim would bias her or that thinking of her mother would prevent her from being fair and impartial. Under these circumstances, we find that the trial court did not abuse its discretion in denying Defendant's challenge for cause of Ms. Mier.

Excessive Sentence

Defendant challenges his sentence as unconstitutionally excessive, in violation of La.Const. art. 1, § 20. He contends that the trial court erred in imposing a sentence of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence for the offense of stalking, second offense. Specifically, he argues that the trial court failed to give adequate consideration to the sentencing guidelines imposed by La.Code Crim.P. art. 894.1, and that his sentence should be more in line with that imposed by this court's ruling in State v. Saucier , 11-246 (La.App. 3 Cir. 11/9/11), 81 So.3d 691, writ denied , 12-227 (La. 6/22/12), 91 So.3d 966.

At trial, Defendant objected to his sentence. His Motion to Reconsider Sentence was denied. While he argues on appeal that the trial court erred by not considering the factors set forth in La.Code Crim.P. art. 894.1, the issue was not raised before the trial court. "Accordingly, this argument cannot be raised for the first time on appeal." State v. Hebert , 08-542, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 688, 690. Nevertheless, we find that the trial court adequately examined the statutory sentencing factors, as discussed below.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted) (second alteration in original).

An offender convicted of stalking, second offense faces a sentence of five to twenty years imprisonment and a fine of up to $ 5,000, or both. La.R.S. 14:40.2 (B)(4). While Defendant received a sentence for the maximum possible term of twenty years, he was not fined. Even though a penalty falls within the statutory sentencing range, however, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case."

State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789 (citations omitted), writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061. "While the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant." State v. Smith , 433 So.2d 688, 698 (La.1983) (citing State v. Ray , 423 So.2d 1116 (La.1982) ; State v. Keeney , 422 So.2d 1144 (La.1982) ; State v. Duncan , 420 So.2d 1105 (La.1982) ). Nevertheless, "[t]he appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D). Moreover, "maximum sentences will be reserved for the most egregious or blameworthy of offenders[.]" State v. Telsee , 425 So.2d 1251, 1254 (La.1983).

In Saucier , 81 So.3d 691, this court affirmed the defendant's sentence of ten years for stalking, second offense. While the trial court in that case found no aggravating or mitigating factors under La.Code Crim.P. art. 894.1, it did note the defendant's criminal history of more than thirty arrests and convictions spanning over three decades, some of which were for crimes of violence. The defendant had violated four protective orders and had "subjected the victim to years of abuse and threats of violence." Id. at 704. The victim in that case was the defendant's former wife with whom he had a child, and the defendant had previously been convicted of stalking another victim.

In reviewing the record in this case, the trial court stated the following in imposing Defendant's sentence:

Reviewing the victim impact statements and reviewing prior cases, and also what transpired over the course of a four[-]day trial. [Sic] The matter started in August of two thousand nine with an arrest. It's been going on for over eighteen years of stalking. Protective orders in oh-nine did not work. [M.S.] was a victim of a matter where she was performing her occupation as a professional person trying to render help to [Defendant's] mother. To the point to where [M.S.] had to stop that in order for her own being [sic]. Whatever reasons [Defendant] had by being infatuated with [M.S.], I do not know. However[,] they have directly affected her family. It came to the point of being more aggressive. And [M.S.] was not comfortable with it to where she terminated her employment. Continuing on to where uninvited presence with weapons causing [M.S.] to feel like she is scared to death [sic]. On another night to where at the house uninvited of where physical contact was made of hands around the neck to where [M.S.] thought she was going to die [sic]. [Defendant] continued with the phone calls, gifts and candy of a signature to the point to where [M.S.]'s family had to take matters of property, phone unlisting even to the point to where it was finally after her repeated requests from law enforcement something was done about the matter with the second arrest. The pattern continued even after the arrest all the way up until trial. The passing on the highway, the driving in the driveway, being around the home, all matters taken into this court. All matters I see where [M.S.] was emotionally distressed and feared bodily harm or her death.

The testimony of M.S., a registered nurse, confirmed the trial court's findings. She testified she had no personal relationship with Defendant. She first met Defendant when she began working as a home health nurse for his mother sometime in 1998. From the beginning, M.S. described Defendant as "a very forward person .... Sometimes intrusive." He began bringing her unwanted gifts such as flowers and candy, which she never accepted, and found that his behavior became "unusual" once he became "more and more aggressive." In an effort to minimize her contact with Defendant, M.S. reported the situation to her direct supervisor.

Beginning in either late 1998 or early 1999, M.S. testified that Defendant would repeatedly drive by her home. One night, she and her husband heard the dog barking and saw a flash of light coming from Defendant's red Ford Ranger pickup truck. Defendant then walked up to her vehicle and put a beer can box under her windshield wipers. As she and her husband stood in the doorway, they watched Defendant walking and noticed that he had a pistol in his hand.

M.S. eventually reported Defendant to the police after he continued driving by her home, honking his horn. She testified that she "was scared to death" after an incident where Defendant spray painted his phone number on her mailbox and on the road in front of her home. However, Defendant's behavior continued after M.S. reported him to the police. She recalled that late one night, while visiting with a friend, she heard the dog barking and saw headlights pull into her driveway. She opened the door to see that Defendant was swiftly approaching her doorway. At that point, M.S. told Defendant that if he didn't leave, she would call the police. Defendant then pushed his way through her door, grabbed her by the neck, and put her up against the wall. M.S.'s friend then threatened Defendant that she would call the police if he did not stop, when Defendant jerked the phone out of M.S.'s hand and the wall, grabbed her friend, and then left with the phone.

Finding Defendant's behavior "too aggressive" and "inappropriate" M.S. quit her position as a home health nurse and went back to the hospital. At this point, however, Defendant began to initiate further contact with M.S. She testified that Defendant would call her multiple times a day to the extent that she had to get an unlisted phone number. She would find candy on the hood of her car at work, and sometimes find Defendant sitting in the parking garage. M.S. recalled an incident at the grocery store where she noticed Defendant staring at her from the next line over, only to go out to her car and find a card addressed to her left by Defendant in her driver door handle. While M.S. called the police numerous times, either the police were unable to find Defendant, or they would go to his house, but in neither case was Defendant arrested.

In 2009, Defendant was finally arrested after driving past M.S.'s home and throwing beer in her face while she was outside at her mailbox. Because of Defendant's actions, M.S. put up a gate, installed a security system, hired a security guard to sit outside her home when her husband worked at night, and left her house to stay with family members when left alone. She took a concealed weapons class and carried a weapon at all times thereafter. M.S. also obtained multiple protective orders against Defendant.

Defendant's behavior never changed after his arrest in 2009, however. Although sometimes the activity was less frequent, it never stopped; in fact, it continued until a few days before the trial was held in this case. Defendant continued to leave beer cans and candy in M.S.'s mailbox and drive slowly by her home, honking the horn, sometimes more than five or ten times throughout a single day. She estimated that she reported Defendant's behavior to the police between ten and twenty times. One evening, M.S. went outside and smelled cigarette smoke. The next morning, she found "a Bud Light can sitting on the porch rail." Sometime in 2017, Defendant's vehicle met M.S. and her husband on the road as their vehicle was pulling a trailer full of lumber. Defendant crossed the center line and "threw his hand out of the window" toward them, which pushed them off the road and into the ditch.

M.S. testified she did not feel safe, "live[d] in a prison with no bars[,]" and "enjoy[ed] nothing by [her]self anymore." Being stalked by Defendant had changed her life. In 2016, she testified that Defendant was again arrested for "[d]riving by [her] house repeatedly. Honking the horn. Crossing the center line. Throwing [a] beer can at [her], cursing [her], screaming at [her]." While the incident where Defendant threw a beer can was similar to the episode in 2009, M.S. also testified that on another occasion, Defendant stopped his vehicle and threw whiskey in her face.

As established by M.S.'s testimony, we find that the record supports the sentence imposed by the trial court. Moreover, we agree with the trial court's conclusion that Defendant was a most egregious offender. Defendant was convicted twice for stalking the same victim over a period spanning eighteen years, with the evidence demonstrating no change in behavior following the first conviction. The trial court properly considered Defendant's repeated behavior over a period of time. We find that the imposition of the maximum sentence in this case is not so grossly disproportionate to the severity of the crime that it either shocks the sense of justice or inflicts any needless pain and suffering. Accordingly, we find that the trial court did not abuse its discretion in sentencing Defendant to twenty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence.

V.

CONCLUSION

Based upon the foregoing, this court affirms the judgment of the trial court in all respects. Accordingly, we affirm Defendant Edwin Albert Miller's conviction for stalking, second offense, a violation of La.R.S. 14:40.2(4), as well as his sentence to twenty years imprisonment without the benefit of probation, parole, or suspension of sentence, with credit for time served.

AFFIRMED .

      In accordance with La.R.S. 46:1844(W), initials are used to preserve the confidentiality of crime victims who are minors, victims of sex offenses, and victims of human trafficking-related offenses. The perpetration of stalking under La.R.S. 14:40.2 is classified as a "sex offense" under the statute, we shall thus keep confidential the victim's name. La.R.S. 46:1844(W)(2)(b).

      The trial court polled the jury after the announcement of the guilty verdict, after which the trial judge explained he would ascertain that "a sufficient number" of jurors concurred in the verdict before making the ballots available to counsel for the parties. The ballots were then to be placed into an envelope and sealed in the court record. The trial court in fact found "a sufficient requirement number for the verdict to be proper and good" and counsel for both parties concurred.
      The ballots were not included in the record on appeal. This court issued an order on December 13, 2018, to the Clerk of Court for the Ninth Judicial District to send the written jury ballots filed under seal. The clerk then filed a supplemental record enclosing a copy of the jury ballots. The supplemental record shows all twelve members of the jury found Defendant guilty of stalking, second offense. Therefore, we find that the information supplied by the supplemental record is sufficient to allow this court to address the issue of ineffectiveness of counsel in this appeal without relegating it to post-conviction relief.

      Louisiana Code of Criminal Procedure Article 782(A) was recently revised to require a twelve-person jury to render a unanimous verdict in cases in which punishment is necessarily confinement at hard labor. It now provides that "[a] case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict ." La.Code Crim.P. art. 782(A) (emphasis added).
      We note, however, that the amendment applies to crimes committed on or after January 1, 2019. Because this offense pre-dates January 1, 2019, the amendment of La.Code Crim.P. art. 782(A) has no bearing on this case.

      We note here that both the State and the defense erroneously received twelve peremptory challenges each. While we find that either side should have only been granted six peremptory challenges given the instant trial for an offense not necessarily punishable by imprisonment at hard labor pursuant to La.Code Crim.P. art. 799, this error of the trial court was nevertheless harmless. As stated in the discussion of the preceding assignment of error, Defendant was afforded a greater number of challenges than required by law, and thus, we do not find that his case was prejudiced from such additional protections.

      On appeal, Defendant incorrectly states that Ms. Jordan's brother is currently suing the Department of Corrections. Ms. Jordan's actual testimony during voir dire was that her brother's lawsuit was completed in 2011 and that Mr. Terrell no longer represents her brother.

      Although one of the protective orders stated that M.S. and Defendant were dating partners, the victim testified this was incorrect.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Junius ROBINSON v. CAPITAL STAFFING, et al.
    WCA 18-990
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Michael Benny Miller, Jacqueline K. Becker, Miller & Associates, Post Office Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLANT: Junius Robinson
    Errol J. King, Jr., Eric Edward Pope, Brett W. Tweedel, Blue Williams, L.L.P., 3421 North Causeway Boulevard, Suite 900, Metairie, LA 70002, (504) 831-4091, COUNSEL FOR DEFENDANT/INTERVENOR/APPELLEE: Southeast Personnel Leasing, Inc.
    Court composed of John D. Saunders, Billy H. Ezell and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

On January 2, 2019, the Defendant-Appellee, Southeast Personnel Leasing, Inc. (Southeast), filed a Motion to Dismiss the instant appeal of the denial of a motion for new trial. Southeast contends that the denial of a motion for new trial is an interlocutory judgment which is not appealable. For the following reasons, we deny the motion to dismiss the appeal.

On October 2, 2015, the Plaintiff-Appellant, Junius Robinson, filed the instant workers' compensation claim against Louisiana Rice Mill, Inc. and Capital Staffing, asserting that he sustained an injury to his back on September 4, 2015, while acting within the course and scope of his employment. These two Defendants denied employing Robinson. Southeast intervened and stipulated that it was considered Robinson's employer at the time of the alleged accident for the purpose of paying workers' compensation benefits.

As a result of the accident, Southeast issued indemnity benefits to Robinson. Soon thereafter, Southeast scheduled an appointment for Robinson to be examined by Dr. Harold Granger on November 30, 2015. When Robinson missed the appointment and the rescheduled appointment for January 11, 2016, Southeast suspended his indemnity benefits. The benefits were reinstated on approximately April 14, 2016, after Robinson was examined by Dr. Granger. Robinson subsequently sought penalties and attorney fees in June 2016 for the suspension of his benefits. The Workers' Compensation Judge (OCJ) found that Southeast violated the workers' compensation law by suspending Robinson's benefits without first obtaining an order compelling his attendance at the medical examination. Robinson was awarded $ 8,000 in penalties and $ 6,000 in attorney fees. On appeal, the ruling was reversed, with all costs assessed to Robinson. Robinson v. Capital Staffing , 17-114 (La.App. 3 Cir. 10/18/17), 230 So.3d 643.

On April 5, 2018, Southeast filed a Motion to Enforce Judgment, seeking an order from the Office of Workers' Compensation (OWC) to enforce this court's appellate decision. Southeast stated therein that it had paid the OWC's judgment in full, including the amount of the suspended benefits with interest but had not received Robinson's payment following amicable and written demand. In response, Robinson filed an Exception of Res Judicata, wherein he asserted that Southeast never requested this court to allow Southeast reimbursement of any funds paid towards the penalties and attorney fees in the judgment. On June 11, 2018, the OWC granted the motion to enforce the judgment as to the repayment of penalties and attorney fees and ordered Robinson to repay Southeast $ 8,027.10. Also, Robinson's weekly indemnity payments were reduced by fifty percent, until such time as the full amount has been repaid to Southeast. Robinson's counsel was ordered to repay Southeast $ 6,020.33 in a lump sum payment.

Lastly, Robinson's exception of res judicata was denied. Robinson filed a Motion and Order for New Trial on July 21, 2018, which was denied following a hearing on August 9, 2018.

Southeast correctly asserts that a judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La.Code Civ.P. art. 2083(C). However, in Edwards v. Southeastern Freight Lines, Inc. , 14-871 (La.App. 3 Cir. 10/15/14), 149 So.3d 1020, 1021, we stated:

[I]n cases in which the motion for appeal states that the appeal is being taken only from the judgment on a motion for new trial[,] but the appellant exhibits the intent to appeal the judgment on the merits, this court has held that the appeal can, nonetheless, be considered as an appeal of the judgment on the merits. McClure [v. City of Pineville , 05-1460 (La.App. 3 Cir. 12/6/06) ], 944 So.2d 805, [writ denied , 07-43 (La. 3/9/07), 949 So.2d 446] ; Thompson v. Nationwide Mut. Ins. Co. , 95-258 (La.App. 3 Cir. 10/4/95), 663 So.2d 191.

In this case, it is clear from Robinson's assignments of error that he seeks to appeal the judgment of June 11, 2018, which granted Southeast's motion to enforce the judgment, denied Robinson's exception of res judicata, and ordered Robinson to repay Southeast by reducing his indemnity benefits by fifty percent. In as much as Robinson has demonstrated his intent to appeal the underlying judgment, we find that the appeal should be considered as an appeal of that judgment. Therefore, we deny Southeast's motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.


author: KEATY, Judge.

text:
    Nathan LOPEZ and Olivia Lopez v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION
    18-841
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Eric T. Haik, Haik, Minvielle & Grubbs, LLP, Post Office Box 11040, New Iberia, Louisiana 70562-1040, (337) 365-5486, Counsel for Defendant/Appellant: Louisiana Citizens Property Insurance Corporation
    Michael G. Hodgkins, Julia Love Taylor, Veron, Bice, Palermo & Wilson, L.L.C., Post Office Box 2125, Lake Charles, Louisiana 70602, (337) 310-1600, Counsel for Plaintiffs/Appellees: Nathan Lopez Olivia Lopez
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   KEATY, Judge.

Defendant/Appellant, Louisiana Citizens Property Insurance Corporation, appeals the trial court's judgment in favor of Plaintiffs/Appellees, Nathan and Olivia Lopez, on the issue of insurance coverage. For the following reasons, the trial court's judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

This litigation arises from a February 8, 2016 theft involving a 2008 John Deere 4 X 4 Tractor, John Deere 521 Loader, and attachments (hereinafter collectively referred to as "tractor") which were located in a storage building at 4125 Fruge Street in Iowa, Louisiana. The tractor belonged to Nathan and Olivia Lopez (hereinafter collectively referred to as the "Lopezes"). At the time of the theft, the Lopezes had in effect a Dwelling/Builders Risk Policy ("policy") issued by Louisiana Citizens Property Insurance Corporation ("LCPIC"). At issue in this matter is whether the policy provided coverage for the theft of the tractor.

The record before us reveals that prior to the instant lawsuit, the Lopezes submitted two claims to LCPIC for the actual cash value of the tractor. Both claims were denied on February 11, 2016 and March 21, 2016, respectively. The reason asserted by LCPIC for those denials was that "theft" was not one of the named "Perils Insured Against" in the policy. On March 29, 2016, the Lopezes filed the instant Petition for Damages against LCPIC for the actual cash value of the tractor along with interest and all costs of the proceedings. They further sought penalties for LCPIC's alleged violation of La.R.S. 22:1973 and La.R.S. 22:1892 along with attorney's fees and costs. After LCPIC filed an answer, both parties filed cross motions for summary judgment on the issue of coverage. A hearing on both motions occurred on December 6, 2016, after which the trial court granted summary judgment in favor of the Lopezes and denied the cross motion for summary judgment filed by LCPIC. The basis of the trial court's ruling was that the policy language was ambiguous. Thereafter, LCPIC filed a writ with this court which was subsequently denied in the unpublished opinion entitled Lopez v. Louisiana Citizens Property Insurance Corp. , 17-336 (La.App. 3 Cir. 6/2/17). The matter proceeded to trial on the merits on May 31, 2018, after which the trial court orally ruled in favor of the Lopezes. A written judgment in accordance with the trial court's ruling was issued on June 4, 2018. It is from this judgment that LCPIC appeals.

On appeal, LCPIC asserts the following assignments of error:

A. The District Court erred in its interpretation of the insurance policy and the applicable law by holding that "Theft" would be covered under the instant policy.
B. The District Court erred in its ruling that the policy of insurance was ambiguous and that the phrase "if not otherwise covered" extended coverage for theft.

STANDARD OF REVIEW

"The determination of whether a contract is clear or ambiguous is a question of law." Edwards v. Daugherty , 03-2103, 03-2104, pp. 12-13 (La. 10/1/04), 883 So.2d 932, 941. As such, the applicable standard of review is whether the trial court was legally correct. Cloud v. Nat'l Auto. Ins. Co. , 03-1438 (La.App. 3 Cir. 5/26/04), 875 So.2d 866, writ denied , 04-2025 (La. 11/8/04), 885 So.2d 1131.

DISCUSSION

On appeal, LCPIC's assignments of error address the interpretation of certain language in the policy at issue. In Louisiana, this court has enunciated the following principles to be used when interpreting policies of insurance, as follows:

In analyzing insurance [policies], certain elementary legal principles apply. First and foremost is the rule that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. LeBlanc v. Aysenne , 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89 ; Edwards v. Daugherty , 03-2103, p. 11 (La.10/1/04), 883 So.2d 932, 940 ; Cadwallader v. Allstate Insurance Co. , 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580 ; Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co. , 93-0911, p.5 (La.1/14/94), 630 So.2d 759, 763.
According to those rules, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties' common intent. See , LSA-C.C. art. 2045 ; Edwards , 03-2103, p. 11, 883 So.2d at 940 ; Cadwallader , 02-1637 at 3, 848 So.2d at 580 ; Blackburn v. National Union Fire Insurance Co. of Pittsburgh , 00-2668, p. 6 (La.4/3/01), 784 So.2d 637, 641. Courts begin their analysis of the parties' common intent by examining the words of the insurance contract itself. See , LSA-C.C. art. 2046 ; Succession of Fannaly v. Lafayette Insurance Co. , 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137 ; Blackburn , 00-2668 at 6, 784 So.2d at 641 ("[T]he initial determination of the parties' intent is found in the insurance policy itself."). In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See , LSA-C.C. art. 2047 ; Edwards , 03-2103 at 11, 883 So.2d at 940-941 ; Cadwallader , 02-1637 at 3, 848 So.2d at 580 ; Succession of Fannaly , 01-1355 at 3, 805 So.2d at 1137.
An insurance contract is to be construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See , LSA-C.C. art. 2050 ; Hill v. Shelter Mutual Insurance Co. , 05-1783, p. 3 (La.7/10/06), 935 So.2d 691, 694 ; Succession of Fannaly , 01-1355 at 4-5, 805 So.2d at 1137 ; Peterson v. Schimek , 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1029. Neither should an insurance policy be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. LeBlanc , 05-0297, at 3, 921 So.2d at 89 ; Edwards , 03-2103 at 11, 883 So.2d at 941 ; Cadwallader , 02-1637 at 3, 848 So.2d at 580 ; Peterson , 98-1712 at 5, 729 So.2d at 1028.
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and courts must enforce the contract as written. See , LSA-C.C. art. 2046 ; Hill , 05-1783 at 3, 935 So.2d at 694 ; Peterson , 98-1712 at 4-5, 729 So.2d at 1028. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms. Cadwallader , 02-1637 at 4, 848 So.2d at 580 ; Succession of Fannaly , 01-1355 at 4, 805 So.2d at 1138. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties' intent. Edwards , 03-2103 at 12, 883 So.2d at 941 ; Succession of Fannaly , 01-1355 at 4, 805 So.2d at 1138 ; Peterson , 98-1712 at 5, 729 So.2d at 1029.
Nevertheless, if, after applying the general rules of contractual interpretation to an insurance contract, an ambiguity remains, the ambiguous contractual provision is generally construed against the insurer and in favor of coverage. See , LSA-C.C. art. 2056 ; Succession of Fannaly , 01-1355 at 4, 805 So.2d at 1138 ; Peterson , 98-1712 at 5, 729 So.2d at 1029. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer's obligation are strictly construed against the insurer. Edwards , 03-2103 at 12, 883 So.2d at 941 ; Cadwallader , 02-1637 at 4, 848 So.2d at 580 ; Carrier v. Reliance Insurance Co. , 99-2573, p. 12 (La.4/11/00), 759 So.2d 37, 43. This strict construction principle applies, however, only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Edwards , 03-2103 at 12, 883 So.2d at 941 ; Cadwallader , 02-1637 at 4, 848 So.2d at 580 ; Carrier , 99-2573 at 12, 759 So.2d at 43.

Calcasieu Par.Sch. Bd. v. Miller , 11-1107, 12-48, pp. 3-4 (La.App. 3 Cir. 6/6/12), 92 So.3d 1200, 1202-03 (quoting Sims v. Mulhearn Funeral Home, Inc. , 07-54, pp. 7-10 (La. 5/22/07), 956 So.2d 583, 588-90 ).

LCPIC contends that coverage for theft of the Lopezes' tractor hinges on whether theft can be attributed to one of the "Perils Insured Against" on page four of the policy. The policy language thereunder provides: "Unless the loss is excluded in the General Exclusions, we insure for direct physical loss to the property covered caused by[.]" The perils insured against are subsequently listed as follows:

fire or lightning; internal explosion; windstorm or hail; explosion; riot or civil commotion; aircraft; vehicles; smoke; volcanic eruption; and vandalism or malicious mischief. LCPIC contends that the policy does not provide coverage for the Lopezes' tractor because theft is not expressly stated as an insured peril.

The Lopezes concede that theft is not listed under the "Perils Insured Against" section. They submit, however, that coverage is afforded based upon another section in the policy which provides:

COVERAGE A - Dwelling
We cover:
1. the dwelling on the Described Location shown in the Declarations, used principally for dwelling purposes, including structures attached to the dwelling;
2. materials and supplies located on or next to the Described Location used to construct, alter or repair the dwelling or other structures on the Described Location; and
3. if not otherwise covered in this policy, building equipment and outdoor equipment used for the service of and located on the Described Location.
This coverage does not apply to land, including land on which the dwelling is located.

The Lopezes contend that the tractor constitutes "outdoor equipment used for the service of and located on the Described Location" under A(3). They further assert that additional language in A(3), "if not otherwise covered in this policy," extends coverage for the theft of their tractor since theft is not expressly stated under the "Perils Insured Against" section.

In its May 31, 2018 oral ruling, the trial court held:

The Court has reviewed this, and I do find there is some ambiguity and conflict within those two provisions that have been pointed out by the plaintiff and the defense.
And further, the exact wording while not the witness' province to create that policy, is noted to be probably expanded as being a little more ambiguous than it was dealt with when the Court did it on motions for summary judgment.
I would adopt the rationale of December 6th, 2016, with regard to the denial of the summary judgment in favor of coverage and the granting of the summary judgment of ambiguity and putting coverage in place on behalf of the plaintiffs.

LCPIC argues that the policy is not ambiguous despite the provision found in A(3), which the trial court relied upon in finding coverage. LCPIC asserts that reliance on A(3) to extend coverage for theft, which is not a peril insured against, is a misapplication of the law by the trial court. We disagree.

On review, we keep in mind the following Louisiana jurisprudence: an insurance contract must be construed as a whole, each contractual provision should be interpreted in light of the other provisions, and one provision should not be construed separately at the expense of disregarding other provisions. Calcasieu Par.Sch. Bd. , 92 So.3d 1200. LCPIC's argument on appeal runs contrary to the foregoing jurisprudence by construing the "Perils Insured Against" provision at the expense of disregarding the provision in A(3), i.e., "if not otherwise covered in this policy[.]" Moreover, a review of the additional language in A(3) does not expressly state that the loss of "outdoor equipment used for the service of and located on the Described Location" is subject only to the "Perils Insured Against" provision. As such, the provision in A(3) must be given its plain, ordinary meaning. A plain and ordinary reading of the provision in A(3), according to witness testimony, can be interpreted as providing additional coverage for the loss of outdoor equipment which would be covered under other sections of the policy, but excluded for certain reasons.

In that regard, LCPIC's sole witness, Allison Anjier, testified at trial. Anjier, a senior claim representative employed by LCPIC, acknowledged that the tractor could be considered outdoor equipment which would fall under the umbrella coverage of A(3). However, Anjier advised that theft is not listed as one of the "Perils Insured Against" such that coverage is not afforded to the Lopezes. Anjier then referenced the inclusion of the provision in A(3) and explained how it extends coverage to those items under A(3) which may be covered under other sections of the policy but excluded for certain reasons. She testified as follows:

And number 3, which is the relevant one in this case, (As Read) If not otherwise covered in this policy, building equipment and outdoor equipment used for the service of and located on described location.
So this is taking items that may otherwise be considered coverage B, coverage C, or coverage D. If there is some limitation within those coverages, this allows for them to be considered part of the dwelling, and provides coverage for them under the limit of liability stated for coverage A, subject to the remainder of the contract.

Anjier's testimony on cross-examination, however, reveals the ambiguity in the provision in A(3). Specifically, she was asked why A(3) contains the provision "if not otherwise covered in this policy[.]" Anjier responded by reiterating her previous testimony on direct examination that outdoor equipment may be provided coverage under A(3) if it is otherwise excluded from coverage under other sections of the policy. She was then directed to A(2), which excludes the provision found in A(3).

The following colloquy ensued:

Q Okay. But you don't have this phrase "if not otherwise covered in this policy" with regard to number 2. Why not? Because it would be the same logical analysis that you just gave that maybe you'd reached your limits in C, or maybe they don't have C. Same thing with number 2, A-2 here, but that phrase is not in A-2. Agreed?
A Correct.
Q Okay. Do you know why it's not in A-2?
A I do not.
Q Okay.

Anjier's testimony reveals that the same items that are provided coverage in A(2) and A(3) may also be covered under other sections of the policy. It further reveals that if coverage of those items is excluded under other sections for certain reasons, then coverage may be extended to those items under A(2) and A(3). Thus, the end result is the same for those items listed in A(2) and A(3), i.e., coverage. Moreover, LCPIC, through Anjier's testimony, cannot explain why it placed the provision "if not otherwise covered in this policy" in A(3), nor why it was left out of other provisions, like A(2). Such ambiguity must be construed against the insurer and in favor of coverage. Calcasieu Par.Sch. Bd. , 92 So.3d 1200. Accordingly, the trial court's judgment is legally correct.

DECREE

For the above reasons, the trial court's judgment in favor of Plaintiffs/Appellees, Nathan and Olivia Lopez, is affirmed. Costs of this matter are assessed to Defendant/Appellant, Louisiana Citizens Property Insurance Corporation.

AFFIRMED.


author: COOKS, Judge.

text:
    Caitland Siobhan HEBERT v. Keary Ryan HEBERT
    18-499
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Meredith Abrusley Guillory, P.O. Drawer 1114, Oakdale, LA 71463, (318) 335-9771, Attorney for Appellant, Caitland Siobhan Hebert
    Corcoran Law Firm, LLC, Lawrence Sean Corcoran, 4216 Lake Street, Lake Charles, LA 70605, (337) 602-6214, Attorney for Appellee, Keary Ryan Hebert
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Caitland Siobhan Hebert (Caitland) and Keary Ryan Hebert (Keary) are the divorced parents of a nine-year old child, Kyler Neal Hebert (Kyler), born January 7, 2010. The first court order concerning custody of Kyler was based on a joint stipulation of the parties. The order was signed on June 17, 2014, and at that time both parents and Kyler were domiciled in Louisiana. The stipulated custody agreement awarded joint legal custody and designated Caitland as the domiciliary parent. Caitland moved to Texas shortly thereafter, but only temporarily, and then moved back to Allen Parish, Louisiana in 2014. Kyler attended school in Louisiana until the end of the 2016 school year.

In June of 2016 Caitland notified Keary via certified mail that she intended to move to Kerrville, Texas and wanted to relocate Kyler with her. Keary opposed the move. The matter was heard on August 1, 2016 in Allen Parish. Following the hearing the trial court granted Caitland permission to relocate with Kyler. The trial court awarded visitation to Keary guided in part by Keary's work schedule which at the time was alternating fourteen days at work and fourteen days at home. The court attempted to afford Keary as much visitation as possible awarding him visitation every other weekend. In order to accommodate Keary's schedule Kyler misses three days of school each month during the school year. Though Kyler's absences are considered unexcused they have not yet been charged against him. He must make up exams he misses during these absences. Exams are given on Fridays. These missed exams are made up on Mondays thus interfering with two more days of schooling each month. He leaves school at 1:00 o'clock in the afternoon on every other Thursday and misses the entire day of school on every other Friday. According to Keary, this puts Kyler at the half-way pick-up point around "four to six o'clock, seven o'clock" depending on road construction and traffic accidents. This means that Kyler is on the road for eight to ten hours of travel time every other weekend. The parents have agreed to meet at a half-way point thus minimizing their travel time. According to Keary it is usually his "mom and step father" who actually pick up Kyler.

In a subsequent hearing concerning modification of the visitation schedule the trial court denied Caitland's motion to transfer the matter to Texas. At that time the parties stipulated: 1) that Texas is now the child's home state, 2) Texas and Louisiana have concurrent jurisdiction, and 3) Louisiana is a convenient forum for the decision of all issues. The stipulation was made part of the trial court judgment dated November 8, 2017.

On February 12, 2018, Keary filed a rule for contempt against Caitland alleging willful refusal to abide by the court-ordered visitation for Christmas. In response Caitland filed a pleading entitled "Petition to Make Judgment Executory and to Modify Custody" wherein she sought a transfer of jurisdiction to Texas and a modification of visitation . Caitland's motion to transfer asserted that she and the child no longer have a significant connection to Louisiana. Her basis for a change in the visitation schedule was largely the adverse impact the current schedule is having on the child's education. The trial court denied both the motion to transfer and the motion for a change in visitation and found Caitland in contempt. Caitland was ordered to pay $ 2,000 in attorney's fees for contempt. She appeals the trial court rulings.

ANALYSIS

The parties' stipulation to jurisdiction is not controlling. Subject matter jurisdiction "cannot be conferred by consent of the parties." La.CodeCiv. P. art. 3. See also Wootton v. Wootton , 49,001 (La.App. 2 Cir. 5/14/14), 138 So.3d 1253. Additionally, "[a] judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void." La.CodeCiv. P. art. 3. This court has consistently held, "Whether a court has subject matter jurisdiction is reviewed on appeal under the de novo standard of review. Chamberlin v. Chamberlin , 14-1322 (La.App. 3 Cir. 4/22/15), 176 So.3d 1118, writ denied , 15-0972 (La. 6/19/15), 172 So.3d 1093 ; Otwell v. Otwell , 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232." Banerjee v. Banerjee , 17-245 p. 3, (La.App. 3 Cir. 12/13/17), 258 So.3d 699, 701.

Our de novo review of the record reveals that Louisiana no longer has exclusive jurisdiction over this child custody matter because Caitland and Kyler no longer reside in Louisiana and have both resided in Texas since at least August 1, 2016.

Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until :
(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
B. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Section may modify that determination only if it has jurisdiction to make an initial determination under R.S. 13:1813.

La.R.S. 13:1814 (emphasis added).

The present litigation seeking a change in visitation was commenced on February 27, 2018, almost eighteen months after Kyler and his mother no longer resided in Louisiana. The parties do not dispute the fact that Texas is Kyler's home state and that he and his mother have resided in Texas for at least eighteen months before the commencement of the present visitation matter. The trial court found it had only concurrent jurisdiction with Texas but reasoned that there are "still significant connections with this jurisdiction" to support the Louisiana court's exercise of its continued jurisdiction. The only connection left with this jurisdiction is that the child's father and his family reside in Louisiana. The law and jurisprudence require more than just the fact that one parent continues to reside in this state. Under La.R.S. 13:1814(B) : "A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Section may modify that determination only if it has jurisdiction to make an initial determination under R.S. 13:1813 " (emphasis added). Under the provisions of Louisiana Revised Statutes 13:1813(A), the trial court here would no longer be entitled to make an initial determination because Louisiana has not been the child's home state for more than six months prior to the commencement of the present action. La.R.S. 13:1813 provides in pertinent part:

A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child's home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
....
B. Subsection A of this Section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

To determine the more appropriate forum in which this matter should be heard we are required to make a comparative determination of which court's jurisdiction serves the best interest of the child. We note that the trial judge's oral and written reasons for ruling focused more on the concerns of the parents rather than the best interests of Kyler. The court failed to seriously entertain the fact that Kyler makes two sixteen to twenty-hour roundtrips every month and must miss at least three days of school each month. In addition to the three days he is absent from school Kyler misses regular classes on two Mondays each month because he must take his make-up exams on Mondays. These absences are not considered excused absences. The policy in force at Kyler's school is that if a child misses more than ten (10) days in a school year he is in danger of failing. Kyler missed fourteen (14) days in the 2016-17 school year due to the current visitation schedule. Caitland received emails from the school's administrator, Shelly Flash, informing her that, "At the point that a student reaches ten absences, an administrative referral is made and a mandatory parent meeting is required to restate the school's policy, and reiterate educational goals for the student." She received a second message by email from the school administrator which read:

If your student has more than five absences for the year, you will receive an email reminding you that ten absences is the cut off for an administrative referral. Fifteen absences can lead to the board of directors approved dismissal of your student. If your student is a senior, they must adhere to school policy for graduate-in order to graduate.

The trial court stated at the hearing that it did not believe a school would penalize a child for absences occurring under a court-ordered visitation schedule. Caitland testified that the school is aware of the court order and yet she received two emails reminding her of the school's policy. Regardless of whether there is proof that these absences would result in Kyler's removal from this private school, it is clear that the school system, which follows the Texas public school requirements, considers this number of absences deleterious to a student's education regardless of the reason for the absences. According to the report card in evidence, and Caitland's testimony, Kyler has maintained his "A" student ranking. Nevertheless, Caitland explained that Kyler was making low "A" grades and a "B" which Kyler found upsetting. Given the extreme demands on Kyler's time for travelling it is only a matter of time before adverse effects develop under the current schedule. It is clear that all witnesses who may testify regarding the effect of the current visitation schedule on Kyler's education are in Texas. Texas is Kyler's home state and it is now the locale with which he and his mother have the most significant connections in their daily life. Kyler's relationships with his father and his paternal extended family are of great importance, but those relationships do not create a significant connection to Louisiana that forms a basis for continued jurisdiction of our courts in Kyler's life.

We note in passing that the trial court stated in its written reasons for judgment that it found "no material change in circumstances warranting a modification of custody and visitation have occurred" and a "change in custody and visitation would not be in the best interest of the child." Although the petition filed by Caitland is entitled "Petition to Make Judgment Executory and to Modify Custody" the petition seeks only to modify the current visitation schedule because of its alleged deleterious effect on Kyler's education. Thus, the standard enunciated in Bergeron v. Bergeron , 492 So.2d 1193 (La.1986), would not apply.

A modification of visitation rights is not so substantial as a change in actual physical custody. Mosely v. Mosely, 499 So.2d 106 (La.App. 1st Cir.1986), writ denied , 505 So.2d 1138 (La.1987), citing Bergeron, supra. As such, a showing that the modification is in the best interest of a child is sufficient. Bennett v. Bennett, 95-152 (La.App. 3d Cir. 5/31/95), 657 So.2d 413 ; Reynier v. Reynier, 545 So.2d 663 (La.App. 5th Cir.1989) ; Mosely, supra.

Acklin v. Acklin , 29,193 (La.App. 2 Cir. 2/26/97), 690 So.2d 869, 871.

In our de novo review, we are guided by consideration of what is in the best interest of Kyler. A Texas court is in the better position to hear this matter as almost all witnesses are located there. According to Keary's testimony, Kyler has not seen a doctor in Louisiana in over two years and has not attended school in this state for as long. Kyler does not attend church in Louisiana because he must begin his bi-weekly journey home too early in the day on Sundays. Each Monday after these long trips Kyler must take his make-up exams missed on Fridays. Keary testified that Kyler's only connection to Louisiana now is that his father, paternal grandmother, half-siblings, and cousins live here. We do not minimize the importance of fostering these relationships, but even our statutory law recognizes that the mere presence of the father and his family in Louisiana is not a basis to continue to exercise our courts' jurisdiction long after Louisiana is no longer the child's home state. In Martin v. Martin , 545 So.2d 666 (La.App. 5 Cir. 1989), the appellate court was faced with a situation similar to the present; only in that case it was the mother who remained in Louisiana while the child and his father had relocated to Texas two years earlier. Although the court was applying the former uniform custody laws, the underlying purpose of the current uniform custody law and the rationale which formed the basis of that decision has not changed.

Charlotte Wyatt Martin remains domiciled in Louisiana. Her son John moved from this state in August or September 1986. Since the summer of 1987 he has lived in Dallas, Texas, where he attends school and is involved in extra-curricular activities. At the time of the district court hearing, the child had not lived in Louisiana for more than two years. The fact that he was born in and spent his early childhood in Louisiana does not confer jurisdiction over the custody issue on our district court. Fouchi v. Fouchi, 477 So.2d 752 (La.App. 5 Cir.1985). While Louisiana may once have been the relevant forum for custody litigation, it is not now the state with the most recent significant connection to the child.
The father argues that substantial relevant information on his son's present and future care is obtainable from family friends and school officials in Texas. The mother maintains in brief that testimony on the father's harassment of her and medical evidence on the child's psychological condition and recommended treatment will derive from Louisiana witnesses...
The commissioners' notes to the model statute, from which Louisiana's Uniform Child Custody Jurisdiction Law now is derived, emphasize that the forum for custody litigation is the state which has the maximum rather than the minimum contact with the child. UCCJA Section 3, commissioners' notes, 9 U.L.A. 124 (1968). The statute focuses on available evidence of the child's present or future care. Schroth, supra, at 643. Here the maximum relevant evidence of that care, as well as of the child's circumstances, health and personal relationships, is most readily obtainable in Texas where the child resides, not in Louisiana. Our state has no legitimate concern as to custody. Texas is the state with superior access to significant information on the child's current status. The best interest of the child, which we consider paramount, dictates that Louisiana has no jurisdiction to determine the custody of John C. Martin.
In support of its judgment retaining Louisiana jurisdiction over the custody dispute, the district court reasoned that because the father had initially selected Louisiana as the forum for litigating the separation/custody suit, he was thereafter estopped from contesting the court's jurisdiction. The record reflects that in May 1987 the mother sought to transfer the custody proceeding from Jefferson to Lafayette Parish, contending that the latter was the "most appropriate and most convenient forum." The father opposed the venue transfer, arguing that Jefferson Parish had a "much closer connection to the case." Now when the mother attempts to litigate custody in Jefferson Parish, the father argues that Louisiana has no jurisdiction. It is evident that each party has or is attempting to insure that custody litigation occur in a location of his or her convenience. The nature of litigation is that each party seeks to gain the position of advantage. But neither the convenience nor the interest of the feuding parents is the primary consideration in determining jurisdiction.
The Supreme Court has held that no "continuing jurisdiction" exists over a resident mother's motion to change custody of children then residing with their custodial parent father in Texas absent "compelling reasons." Odom v. Odom, 345 So.2d 1154 (La.1977). In the case before us, neither the initial filing of suit nor the concept of estoppel present "compelling reasons" for Louisiana's exercise of continued jurisdiction. Nor is the concept of estoppel an acceptable basis of jurisdiction under R.S. 13:1702.
In reasons for its judgment, the district court cited the underlying purpose of R.S. 13:1700, without elaborating. At the outset of this opinion we identified what we perceive is the primary purpose of the Uniform Child Custody Jurisdiction Law: to insure that the custody of a child is adjudicated in the state which has the "closest connection" with and the most "significant evidence" of the child's current status and interests. A finding that Louisiana has jurisdiction over the instant custody dispute frustrates the purpose of the statute. We hold that Louisiana has no jurisdiction to determine the custody of the minor John C. Martin.

Martin , 545 So.2d at 668-70.

In Cramer v. Tuttle , 08-940, p. 5 (La.App. 3 Cir. 2/4/09), 11 So.3d 503, 506, this court, applying the version of the uniform act in effect in 2006 before the current uniform law was enacted in 2007, relied on the supreme court's direction in Amin v. Bakhaty, 01-1967, (La.10/16/01), 798 So.2d 75 at 80-88, "the choice of the optimum jurisdiction to resolve custody battles under the [Uniform Child Custody Jurisdiction Law] UCCJL focuses on the strength of connections between the child and the competing states, more akin to a personal jurisdiction analysis." Although the present case is governed by the 2007 version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the focus is the same. Because this child resides in Texas and has been a resident of that state for at least eighteen months before the present action was filed, Louisiana courts would not ordinarily have personal jurisdiction over such a person. When viewed is light of this analysis as directed by the state supreme court it is clear that this child's connections to Texas are stronger than the remaining connection he has to Louisiana which has as its only basis the fact that his father and paternal relatives reside in Louisiana.

Louisiana courts have jurisdiction over a minor's status in a "proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state." La.Code Civ.P. art. 10(A)(5). However, a second tier of inquiry into the jurisdiction over custody issues exists under the UCCJEA, La.R.S. 13:1801, et seq. Even if a Louisiana court has subject matter jurisdiction, that jurisdiction must be declined based on limitations imposed by the UCCJEA. Albitar v. Albitar , 16-167 (La.App. 5 Cir. 6/30/16), 197 So.3d 332. The UCCJEA's limitation on jurisdiction was designed to avoid jurisdictional competition among states, to "assur[e] that custody litigation takes place in the state with which the child and his family have the 'closest connection' and where relevant evidence is located, promot[e] a stable home environment, deter[ ] abductions, and encourag[e] cooperation among the courts of different states." Id. at 345, quoting Stelluto v. Stelluto , 05-74, p. 8 (La. 6/29/05), 914 So.2d 34, 39.

Banerjee v. Banerjee , 17-245, pp. 3-4 (La.App. 3 Cir. 12/13/17), 258 So.3d 699, 701-02.

The Louisiana Second Circuit Court of Appeal applying the current provisions of the UCCJEA explained the application of the current law and the applicability of cases decided under the former version known as the UCCJA:

Further, in order for a court to exercise continuing jurisdiction to modify its earlier custody decree, it must meet the jurisdictional requirements of the UCCJEA at the time the modification is sought...
Moreover, even assuming arguendo that Louisiana had jurisdiction in either Caddo or Ouachita, the record indicates that Louisiana would be an inconvenient forum under La. R.S. 13:1819due to the length of time the children have resided outside the state and the nature and location of the evidence required to resolve the pending litigation, i.e., testimony pertaining to the children's education, health and social activities.
....
There are numerous cases in which Louisiana courts have lost jurisdiction in custody cases after the children went to live in other states which, over time, became the "home state" under the UCCJA's definition and the place where the most relevant evidence concerning the child was available. Examples include Broadway v. Broadway, 623 So.2d 185 (La.App. 2d Cir.1993), in which the child had lived in Mississippi for eight years; Counts v. Bracken, 494 So.2d 1275 (La.App. 2d Cir.1986), in which the child had been living in Arkansas for seven years; and Martin v. Martin , 545 So.2d 666 (La. App.5th Cir. 1989), in which the child had not lived in Louisiana for at least 16 months at the time the mother filed for permanent custody.
In particular, we note that the case of Tabuchi v. Lingo, supra, is remarkably similar to the matter before us. Although it was decided under the UCCJA, the rationale in that case is the same. There the mother moved to Missouri in 1984 with her son and daughter after she was awarded sole custody by a Louisiana court. (The judgment was modified by agreement in 1986 to award joint custody with the mother as primary custodian.) In 1990, the father sought to obtain custody of the son after the child came to Louisiana for summer vacation. The trial court denied the mother's exceptions of lack of jurisdiction and inconvenient forum and awarded primary custody of the boy to the father. This court reversed, finding that since the children had continuously lived with their mother in Missouri for six years, home state jurisdiction clearly vested in the Missouri court system long before the modification action was brought. Missouri was also the state with the most significant connection to the child and the maximum evidence concerning his present or future care, protection, training and personal relationships.
The father's additional argument that Louisiana should have permanent jurisdiction over all future child custody disputes because the November 2009 consent judgment contained a provision to that effect is without merit. Subject matter jurisdiction, such as that exercised in resolving child custody disputes, cannot be conferred by consent of the parties. La. C.C.P. art. 3 ; Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993).

Wootton v. Wootton , 49,001, pp. 10-12 (La.App. 2 Cir. 5/14/14), 138 So.3d 1253, 1258-60.

DECREE

For the reasons stated, we find it is in Kyler's best interest that Texas, as Kyler's home state and the state with which he has the most significant connections, is the more appropriate forum to exercise jurisdiction. We therefore reverse the trial court ruling. Because we find the trial court inappropriately exercised jurisdiction over the matter, we vacate the trial court's ruling on contempt. We remand this matter to the trial court with instructions to transfer this case to the appropriate court in Texas in accordance with the provisions of the UCCJEA. All costs of this appeal are assessed against Keary Ryan Hebert.

REVERSED AND REMANDED WITH INSTRUCTIONS .


author: EZELL, Judge.

text:
    John C. OWENS v. MCILHENNY COMPANY, et al.
    CA 18-754
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Robert L. Marrero, Robert L. Marrero, LLC, 401 Whitney Avenue, Suite 126, Gretna, LA 70056-2577, (504) 366-8026, COUNSEL FOR PLAINTIFF/APPELLANT: John C. Owens
    Kimberly G. Anderson, 3850 N. Causeway Boulevard, Suite 1230, Metairie, LA 70002, (504) 872-3946, COUNSEL FOR DEFENDANTS/APPELLEES: McIlhenny Company, Jungle Gardens, Inc.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

John Owens filed suit against McIlhenny Company and Jungle Gardens, Inc., for injuries he sustained when he tripped and fell on a concrete pad while walking through the gardens. The trial court granted summary judgment in favor of the Defendants, and Mr. Owens filed the present appeal. For the following reason, we affirm the judgment of the trial court.

FACTS

According to Mr. Owens' petition, he and his wife and three cousins visited Jungle Gardens at Avery Island on February 16, 2016. After touring other areas of the gardens, the group went to the Palm Garden area. Mr. Owens stepped onto a concrete pad on a pathway and began to fall. He broke his fall by stretching out his hands. In the process, Mr. Owens severely injured both his wrists, which required surgery. He also claims he injured his neck and back.

Mr. Owens filed suit against McIlhenny Company and Jungle Gardens on January 9, 2017. The Defendants filed a motion for summary judgment on May 24, 2018. A hearing was held on July 18, 2018. At the conclusion of the hearing, the trial court determined that the Defendants were entitled to summary judgment under La.Civ.Code art. 2317.1. Mr. Owens then filed the present appeal.

SUMMARY JUDGMENT

In reviewing a trial court's determination of whether summary judgment is appropriate, an appellate court utilizes a de novo standard of review and applies the same standard of review that the trial court does. Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342 (La.1991).

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764.

The mover bears the burden of proving it is entitled to summary judgment unless "the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment[.]" La.Code Civ.P. art. 966(D)(1). In that case, the mover is not required to negate all essential elements of the adverse party's claim but only need point out the absence of factual support for one or more elements essential to the adverse party's claim. Id. The burden is then "on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

It is the applicable substantive law that determines whether the trial court's grant of summary judgment was appropriate. Davidson v. Sanders , 18-308 (La.App. 3 Cir. 12/6/18), 261 So.3d 889. At the hearing, the trial court was presented with the issue of the applicability of the Louisiana Merchant Liability Act under La.R.S. 9:2800.6 or premises liability under La.Civ.Code art. 2317.1. The trial court determined that La.Civ.Code art. 2317.1 applied to this case and that La.R.S. 9:2800.6 was not applicable. We agree.

Louisiana Revised Statutes 9:2800.6(A) states that it applies to a merchant "to keep his aisles, passageways, and floors in a reasonably safe condition." Obviously, the Jungle Gardens has no aisles, passageways, or floors as contemplated by the statute but is a 170 acre "exquisite semi-tropical garden stretching along-side of Bayou Petit Anse" on Avery Island as described in Mr. Owens' petition. The trial court was correct in finding that La.Civ.Code art. 2317.1 is applicable to the facts of this case.

Louisiana Civil Code Article 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In order to prevail on a claim under La.Civ.Code art. 2317.1 a plaintiff must prove:

(1) that the thing which caused the damage was in the defendant's custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof [of] any one of these elements, his/her claim fails.

Riggs v. Opelousas Gen. Hosp. Trust Auth. , 08-591, p. 4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817.

At the conclusion of the hearing, the trial court concluded that the Defendants had no knowledge of the ruin, vice, or defect, or even that there was a defect. The trial court concluded that the Defendants did not fail to exercise reasonable care and that Mr. Owens tripped on his own accord. Therefore, the trial court found that Mr. Owens failed to provide proof of any of the elements other than custody of the concrete pad that Mr. Owens slipped on.

Mr. Owens' deposition testimony revealed that he had been to the gardens several times before this incident. On this particular day, the weather was nice. He noticed, as he walked on other concrete pads, that some of them would shift. He had no problem seeing the pads. His wife stepped on the pad before him with no problem. He testified that he put his left foot down on the back part of the pad and fell. He was injured when he braced his fall with his hands. He stated that he would not have fallen if he stepped on the middle of the pad as his wife did. Mr. Owens did not tell anyone at the gardens about his accident nor report that the pads had issues.

Under [A]rticle 2317.1, a defect is a condition creating an "unreasonable risk of harm," which requires the trier of fact to decide whether the social value and utility of a hazard outweighs, and thus justifies, its potential harm to others. The fact that a pedestrian fell on a walkway does not automatically elevate the condition of that walkway to that of an unreasonably dangerous defect. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.
The degree to which the danger is evident to the plaintiff is one factor in determining whether the condition is unreasonably dangerous. If the facts of a particular case show that the complained of condition should be obvious and apparent to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff.

Cangelosi v. Treasure Chest Casino, L.L.C. , 18-72, p. 6 (La.App. 5 Cir. 7/31/18), 252 So.3d 559, 564 (footnotes omitted), writ denied , 18-1446 (La. 11/20/18), 256 So.3d 997.

Mr. Owens acknowledged that he had stepped on previous concrete pads that wiggled, so he knew he had to be careful. He also agreed that if you stepped in the middle, the pad would not wiggle, yet he chose to step on the edge which is when he fell. These pads were located on walking trails in an outdoor natural environment where common sense dictates that that surfaces will be uneven. Even Mr. Owens acknowledged that it would have been "ridiculous" to report to the anyone that the concrete pads would wiggle. He did not even report the incident after he fell. As such, there is no evidence that the Defendants had any notice that the concrete pads would wiggle.

We agree with the trial court that the concrete pads located on paths in the gardens did not create an unreasonable risk of harm. Mr. Owens' own testimony establishes that had he exercised reasonable care in stepping in the middle of the pad, the accident would not have occurred.

For these reasons, we find there are no genuine issues of material fact that the Defendants are not liable under La.Civ.Code art. 2317.1. The trial court was correct in granting the Defendants' motions for summary judgment, and we affirm its judgment. Costs of this appeal are assessed to John Owens.

AFFIRMED.

      The petition alleges the group purchased tickets on February 16, 2015, but later alleges the fall occurred on February 16, 2016.