text:
    Tripp FORREST AS TRUSTEE FOR the JACK THRASH FORREST III TRUST v. The VILLE ST. JOHN OWNERS ASSOCIATION, INC.
    NO. 2018-CA-0175
    Court of Appeal of Louisiana, Fourth Circuit.
    November 7, 2018
    Irl R. Silverstein, David A. Silverstein, THE SILVERSTEIN LAW FIRM, APLC, 635 Lafayette Street, Gretna, LA 70053, COUNSEL FOR DEFENDANT/APPELLANT
    Matthew J. Farley, Richard E. Baudouin, KREBS FARLEY, PLLC, 400 Poydras Street, Suite 2500, New Orleans, LA 70130, COUNSEL FOR THIRD PARTY DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
    Judge Paula A. Brown This appeal arises out of an insurance policy coverage dispute between the insurer, Travelers Casualty and Surety Company of America ("Travelers") and its insured, The Ville St. John Owners' Association, Inc. (the "Association"). Travelers filed a Motion for Summary Judgment contesting coverage, and the Association filed a cross-motion for summary judgment. The district court granted Travelers' motion for summary judgment and denied the Association's cross-motion; the district court dismissed, with prejudice, all of the direct action claims against Travelers. The Association appeals, seeking review of this judgment. For the reasons set forth below, the district court's judgment is affirmed.
    FACTUAL AND PROCEDURAL HISTORY
    Tripp Forrest was Trustee for the Jack Thrash Forrest III Trust (the "Trust"), and the Trust owned unit, number 301 (the "unit"), in a condominium complex managed by the Association. On March 3, 2016, a fire occurred in the unit resulting in damage to the unit and to common elements of the condominium complex. The Association carried a commercial property insurance policy with Lloyd's, London, International Insurance Company of Hannover SE ("Lloyd's, London"), and the unit was insured under the policy. The Association made a claim under the commercial property insurance policy for payment of losses suffered as a result of the fire damage to the unit and the common elements of the complex. Lloyd's, London accepted coverage for the loss and paid the Association; the payment to the Association represented specific amounts for repairing the common elements and, separately, the unit. With the payments from Lloyd's, London, the Association repaired the common elements but had insufficient monies to pay for repairs to the unit. As a result, the Trust filed a Petition and an Amended and Superseding Petition for Damages against the Association asserting the following pertinent claims:
    Count 1: Breach of Duty under Civil Code article 2315 17.
    Under La. R.S. La. R.S. 9:1123.112(D), the Association had the fiduciary, contractual, and legal duty to adjust the insurance claim reasonably both for itself as well as for the Trust. To the extent the Association failed to secure adequate compensation for the loss of both the common elements and the Trust's condominium, the Association breached that duty. Further, to the extent the Association performed minimal repairs within the Trust's unit and did so in a negligent manner, it has also breached its duties.
    18.
    To the extent the Association failed to secure adequate compensation to repair the Trust's unit, and to the extent it negligently repaired the unit, it has proximately caused the Trust to sustain damages in that the unit remains damaged and unrepaired.
    19.
    The Association is, therefore, liable to Mr. Forrest (in his capacity as Trustee)
    under article 2315 for an amount to appropriately repair the unit.
    Count 2: Failure to Repair under the Louisiana Condominium Act
    * * *
    23.
    The Association has failed to "promptly" repair the Trust's unit and has likewise failed to pay the Trust the proper amount to repair the damage. This conduct violates La. R.S. 9:1123.112(G) and renders the Association liable to Mr. Forrest (in his capacity as Trustee) for the amount to repair the Trust's unit.

      The Appellant, in its brief to this Court, mistakenly refers to the insurer of the commercial property insurance policy as Travelers, but the record indicates the insurer was Lloyd's, London.

      La. R.S. 9:1123.112, a revised statute under the Louisiana Condominium Act, provides in pertinent part:
      A. Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available:
      (1) Property insurance on the common elements and units, ... insuring against all risks of direct physical loss commonly insured against ....
      (2) Comprehensive general liability insurance, including medical payments insurance, in an amount determined by the executive board but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.
      * * *
      C. Insurance policies carried pursuant to Subsection A must provide that:
      (1) Each unit owner is an insured person under the policy with respect to liability arising out of his ownership of an individual interest in the common elements or membership in the association.
      (2) The insurer waives its right to subrogation under the policy against any unit owner of the condominium or members of his household.
      (3) No act or omission by any unit owner, unless acting within the scope of his authority on behalf of the association, will void the policy or be a condition to recovery under the policy....
      D. Any loss covered by the property policy under Subsection A(1) shall be adjusted with the association, but the insurance proceeds for that loss shall be payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lien holders as their interests may appear. Subject to the provisions of Subsection G, the proceeds shall be disbursed first for the repair or restoration of the damaged common elements and units, and unit owners and lien holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the common elements and units have been completely repaired or restored, or the condominium is terminated.
      * * *
      G. Any portion of the condominium damaged or destroyed shall be repaired or replaced promptly by the association unless (1) the condominium is terminated, (2) repair or replacement would be illegal under any state or local health or safety statute or ordinance, or (3) eighty percent, or such other percentage provided in the declaration, of the unit owners vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire condominium is not repaired or replaced, (1) the insurance proceeds attributable to the damaged common elements shall be used to restore the damaged area to a condition compatible with the remainder of the condominium, (2) the insurance proceeds attributable to units and limited common elements which are not rebuilt shall be distributed to the owners of those units and the owners of the units to which those limited common elements were assigned, and (3) the remainder of the proceeds shall be distributed to all the unit owners in proportion to their common element interest. If the unit owners vote not to rebuild any unit, that unit's entire common element interest, votes in the association, and common expense liability are automatically reallocated upon the vote as if the unit had been condemned under Section 1121.107, and the association promptly shall prepare, execute, and record an amendment to the declaration reflecting the reallocations. Notwithstanding the provisions of this Subsection, Section 1122.120 governs the distribution of insurance proceeds if the condominium is terminated.

   Count 3: Failure to Properly Spend Insurance Funds under the Louisiana Condominium Act
24.
Under La. R.S. 9:1123.112(G), if the condominium is not repaired or replaced after a fire (when one of the three exclusive criteria of La. R.S. 9:1123.112(G) occur), a statutory formula directs how the insurance money must be spent.
* * *
27.
The Association violated La. R.S. 9:1123.112(G)'s statutory formula to the extent it used more of the insurance funds on the common elements than the insurance company had attributed in its payment. In that case, it necessarily violated La. R.S. 9:1123.112(G)'s statutory formula again.
28.
Any failure to properly spend insurance proceeds in accordance with La. R.S. 9:1123.112(G) renders the Association liable to Mr. Forrest (in his capacity as Trustee) for the difference between the insurance company's attribution of funds and what the Association later set aside for the unit's repair.[ ]

Afterwards, the Association filed a third party demand against Travelers. Travelers had issued to the Association a Community Association Management Liability Coverage Policy (the "Management Policy") that provided coverage for losses incurred due to directors and officers' alleged wrongful acts. The Association reported the Trust's claims to Travelers; Travelers denied coverage, including the duty to defend.

In September 2017, the Association moved for a summary judgment against Travelers, requesting its third party demand be granted on the ground that there was coverage under the Management Policy. In October 2017, Travelers moved for a summary judgment seeking dismissal of the Association's third party demand arguing that coverage was excluded under the policy, and Travelers had no duty to defend the Association. A hearing on the motions was held on November 17, 2017. On December 7, 2017, the district court denied the Association's motion for summary judgment, and granted Travelers' motion for summary judgment, dismissing with prejudice all claims against Travelers. The Association, pursuant to La. C.C.P. art. 966(C)(4), requested written reasons for judgment which were provided by the district court. In its written reasons, the district court found that coverage for the Trust's claims was excluded as "[t]he policy contains a clear and unambiguous exclusion precluding coverage 'for any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving' property damage."

From this judgment, the Association seeks review.

DISCUSSION

The Association asserts the district court erred by dismissing the third-party demand and granting Travelers' motion for summary judgment. In challenging the district court's judgment, the Association assigns two errors: (1) the district court erred in finding the Management Policy unambiguously excluded coverage for the Trust's claims; and (2) the district court erred in failing to find Travelers had the duty to defend the Association against the Trust's claims as required by the Management Policy.

"A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by the litigant." Tate v. Touro Infirmary , 17-0714, p. 1 (La. App. 4 Cir. 2/21/18), --- So.3d ----, ----, 2018 WL 992322, writ denied , 18-0558 (La. 6/15/18), 245 So.3d 1027 (citing La. C.C.P. art. 966(A)(1) ). An appellate court's review of summary judgments is de novo , and it employs the same criteria district courts consider when determining if a summary judgment is proper. Madere v. Collins , 17-0723, p. 6 (La. App. 4 Cir. 3/28/18), 241 So.3d 1143, 1147 (citing Kennedy v. Sheriff of E. Baton Rouge , 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 ). In Chanthasalo v. Deshotel , 17-0521, p. 5 (La. App. 4 Cir. 12/27/17), 234 So.3d 1103, 1107 (quoting Ducote v.Boleware , 15-0764, p. 6 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied , 16-0636 (La. 5/20/16), 191 So.3d 1071 ), this Court espoused:

This [de novo ] standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law.... A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

"Interpretation of an insurance policy usually involves a legal question that can be resolved properly within the framework of a motion for summary judgment." Thebault v. Am. Home Assur. Co. , 15-0800, p. 5 (La. App. 4 Cir. 4/20/16), 195 So.3d 113, 116 (citing Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ). In the case sub judice , Travelers, the insurer, has the burden of proving that a claimed loss fell within the policy exclusion. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc. , 06-1827, p. 6 (La. 5/22/07), 958 So.2d 634, 639 (citation omitted).

Property Damage Exclusion

In the case sub judice , there are no factual issues in dispute, only a legal question-whether the Management Policy excluded coverage of the Trust's claims against the Association.

This Court explained in Burmaster v. Plaquemines Parish Government , 10-1543, p. 4 (La. App. 4 Cir. 3/30/11), 64 So.3d 312, 316, (citation omitted), that "[a]n insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code." The extent of coverage is determined by "[t]he parties' intent as reflected by the words in the policy," and "[s]uch intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning." Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co. , 93-0911 (La. 1/14/94), 630 So.2d 759, 763 (citations omitted)(footnote omitted). "An insurance contract is to be construed as a whole, and one portion thereof should not be construed separately at the expense of disregarding another." Pareti v. Sentry Indem. Co. , 536 So.2d 417, 420 (La. 1988) (citation omitted). In Doerr v. Mobil Oil Corp. , 00-0947, p. 6 (La. 12/19/00), 774 So.2d 119, 124, the Supreme Court, citing La. C.C. art. 2046, held that the "Civil Code is clear that if a contract does not lead to absurd consequences it will be enforced as written." Additionally, "courts have no authority to alter the terms of policies under the guise of contractual interpretation when the policy provisions are couched in unambiguous language." Pareti , 536 So.2d at 420 (citations omitted). On the other hand, any ambiguity in a policy "should be construed in favor of the insured and against the insurer. Id. If an insurance policy provision is amenable to two or more reasonable interpretations, "it is considered ambiguous and must be liberally construed in favor of coverage." Chicago Prop. Interests, L.L.C. v. Broussard , 08-526, p. 7 (La. App. 5 Cir. 1/13/09), 8 So.3d 42, 47 (citation omitted). This Court, in Burmaster , 10-1543, at p. 8, 64 So.3d at 319 (citation omitted) opined, that although an exclusion could have been worded more explicitly, it "does not necessarily deem it ambiguous." Likewise, insurers can limit their liability absent a conflict with statutory provisions or public policy. Pareti , 536 So.2d at 421 (citations omitted).

The Management Policy issued by Travelers to the Association was a claims-made-reported policy. "Insured Person" was defined in the Management Policy and provided in pertinent part:

[D]uly elected or appointed member of the board of directors, officer, member of the board of trustees, member of the board of managers, member of the board of regents, member of the board of governors, or a functional equivalent thereof, member of a duly constituted committee, or volunteers of the Insured Entity or any Executive Officer . Insured Person also means any Community Association Management .

The Management Policy provided general coverage for "Loss for Directors and Officers Wrongful Acts." "Directors and Officers Wrongful Act" was defined in section "N" of the policy as:

1. any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty or neglect by, including any Personal Injury or Publishers Liability , or any matter asserted against, an Insured Person in his or her capacity as such;
2. any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty or neglect by, including any Personal Injury or Publishers Liability , the Insured Organization ; or
3. any matter asserted against an Insured Person solely by reason of his or her status as such.

Loss was defined, in part, as "[D]efense Expenses and money which an Insured is legally obligated to pay as a result of a Claim , including compensatory damages, punitive or exemplary damages where insurable under applicable law, prejudgment and postjudgment interest, judgments, and settlements." Defense Expenses were defined as "reasonable and necessary legal fees expenses incurred by the Company or the Insured, with the Company's consent, in the investigation, defense, settlement and appeal of a Claim ...." The property damage exclusion of the Management Policy, Exclusion A.1, provided:

The Company will not be liable for Loss for any Claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any damage to, destruction of, deterioration of, loss of, or loss of use of any tangible property, including any Construction Defect , whether or not as a result of inadequate or insufficient protection from soil or ground water movement, soil subsidence, mold, toxic mold, spores, mildew, fungus, or wet or dry rot.

"Claim" was generally defined in section "F" as a "Directors and Officers Claim" and "Directors and Officers Claim" was defined in section "M," in part, to include "a written demand for monetary or non-monetary relief [ ]" or "a civil proceeding commenced by service or a complaint or similar pleading" "against an Insured for any Director and Officers Wrongful Act ."

First, the Association contends the "overall basis" of the property damage exclusion is to exclude "construction defects," and the Trust does not assert any claims of construction defects. We find this interpretation of the exclusion is flawed. A plain reading of the property damage exclusion reveals "construction defect" is just one type of property damage barred by the exclusion; the exclusion includes "any damage to , destruction or deterioration of, loss of, or loss of use of any tangible property , including any Construction Defect ...." (emphasis added). This claim lacks merit.

Secondly, the Association asserts several arguments in support of its position that the district court erred in finding the Management Policy "unambiguously excluded coverage" of the Trust's claims. In brief, the Association contends that the property damage exclusion is ambiguous, and particularly, the "arising out of" language contained in the exclusion, should be "interpreted narrowly against the insurer." The Association argues the claims asserted against them by the Trust involve omissions or breach of the Association's ministerial duties. The Association points out that the property damage to the unit occurred before any action or inaction by the Association. Additionally, the Association urges that "it does not dispute the Travelers' policy excludes damages caused by those [the Association's] ministerial acts"; rather it argues that the Trust's claims-for alleged acts of omission and breach of duty-are clearly covered under the policy as "Directors and Officers Wrongful Act" under subpart F and N in the definition section of the policy.

Travelers responds that the property damage exclusion encompassed the breach of duties alleged by the Trust against the Association as the allegations "are based upon, arise out of, result from, are in consequence of and involve property damage." Travelers contends that but for or without the damage caused by the fire the Trust would have no claims against the Association. Travelers urges that this Court, like other Louisiana courts, should broadly interpret the language "arising out of" contained in the property damage exclusion.

The district court, in its written reasons, cited Burmaster , 64 So.3d 312, to support its finding that the Trust's claims arose out of damage to the property and were excluded. The district court wrote in pertinent part:

This policy exclusion is similar to the exclusion in Burmaster . The policy contains a clear and unambiguous exclusion precluding coverage "for any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving" property damage. This Court believes that [the Trust's] claims against the Association "arise out of" the property damage to the Trust's unit due to the fire.

In Burmaster , the plaintiffs filed a class action against the Plaquemines Parish Government ("PPG") public officials and their public official liability insurer for property damages caused by the "hurricane protection levees" built by the PPG when the levees failed after Hurricane Katrina. The public official liability policy excluded coverage for property damage, including "[p]hysical injury to ... tangible property, including all resulting loss of use, or resulting reduction in value of that property." Id. , 10-1543 at p. 7, 64 So.3d at 319. The trial court granted summary judgment in favor of the insurer, and this Court affirmed the judgment. On appeal, plaintiffs asserted the exclusion did not include damage to "intangible property." This Court disagreed and held that the policy excluded coverage "for all intangible losses claimed by the Plaintiffs as these damages emanated from or resulted as a consequence of the injury to the Plaintiffs' tangible property (which is expressly excluded from coverage)." Id. , 10-1543 at p. 12, 64 So.3d at 321. This Court explained that "without injury to the Plaintiffs' residences, businesses, and personal belongings (tangible property) due to flooding when the levees were breached, the Plaintiffs would not have sustained any resulting stigma, inconvenience, loss of enjoyment, increased premiums and/or deductibles and/or loss of business income damages (intangible property) as they claim." Id.

The Association argues Burmaster is distinguishable from the present case because the damage in Burmaster was caused by "the negligent failure of the government officials to maintain the levee, rather than by a ministerial act of those officials." However, we find Burmaster instructional as this Court was called upon to interpret a property damage exclusion to determine if the intangible property claims, which were not expressly excluded in the policy but arose as a result of the property damage, were excluded. This Court in Laborde v. Deblanc , 587 So.2d 58 (La. App. 4th Cir. 1991) interpreted an exclusion similarly as in Burmaster . Additionally, in Laborde , the exclusion contained the "arising out of" language which is present in the exclusion in this case.

In Laborde , 587 So.2d 58, Mr. Laborde purchased a boat, "The Amanda," from the defendant, Mr. Deblanc. While Mr. Laborde, his two sons, his brother-in-law and his son, were spending the night on "The Amanda," the generator installed by Mr. Deblanc malfunctioned causing carbon monoxide fumes to leak out of the exhaust system resulting in the death of one of Mr. Laborde's sons and his brother-in-law's son, and injuries to Mr. Laborde and his other son. Mr. Laborde and others filed suit. Mr. Deblanc and State Farm, which insured the boat, were among those named as defendants. State Farm filed a third party demand against America First Insurance Company ("American First"), which insured Mr. Deblanc's home during the time of the incident. American First filed a motion for summary judgment seeking dismissal of the third-party demand, and State Farm filed a motion for summary judgment, pertinently asserting that American First provided coverage for the loss, and the American First policy was primary. The district court denied American First's motion and granted State Farm's motion; and American First appealed. On Appeal, this Court reversed the district court's judgment. One of the arguments asserted by American First was that the homeowner's policy issued to the Deblanc's excluded coverage for any watercraft. This Court agreed and opined in pertinent part:

The pertinent language in the policy reads: "personal liability coverage does not apply to bodily injury claims 'arising out of ' the ownership, maintenance, or use of any watercraft owned or rented by the insured." " 'Arising out of' implies an element of causality though not necessarily the proximate cause." Speziale v. Kohnke, 194 So.2d 485 at 488 (La.App. 4th Cir.1967), writ refused 250 La. 469, 196 So.2d 534 (La.1967).
The court in Louisiana Insurance Guaranty Association v. Gugliemo [Guglielmo], 276 So.2d 720 (La. App. 1st Cir.1973), writ refused 279 So.2d 690 (La. 1973), held that the term "arising out of" relates not to verb tense or the time that the claim arises, but rather to the source and nature of the claim....
* * *
Accordingly, this court must look to the occurrence which precipitated the damages as being dispositive. In this case, all damages arise out of Mr. Deblanc's ownership of the watercraft. Had Mr. Deblanc never owned The Amanda, he would not have had the generator installed on the watercraft, would not have sold the watercraft to the Labordes, and the Laborde's [sic] would not have a claim against him for these damages. All losses were derivative of Mr. Deblanc's ownership of The Amanda.
The policy excludes claims arising out of the ownership, the maintenance, use, loading or unloading of a watercraft; the clear intent is to exclude a much broader range of claims with the common denominator being that the activities are derivative of a boat that at some point in time was owned by the insured....

Id. at 59-60 ; See also , Chicago Prop. Interests, L.L.C. , 08-526 at pp.7-8, 8 So.3d at 47 (wherein our sister court was called upon to interpret the "arising out of" language in a property damage exclusion of a Public Officials and Employees Liability Policy and held that "every category of damages the plaintiffs allege directly or indirectly had its origin in the ... property damage" and were excluded. ).

In further review, we look at illustrative cases outside of Louisiana, with similar facts as the present case, that interpreted the term "arising out of" in an analogous manner as Louisiana Courts.

In Eastpointe Condo. I Ass'n, Inc. v. Travelers Cas. & Sur. Co. of Am. , 664 F.Supp.2d 1281, 1283 (S.D. Fla. 2009), the owner of a condominium unit sued the condominium association board (the "association") when the owner's unit was damaged. The plaintiff alleged the association failed to "adequately maintain and repair the roof and air conditioning system of the condominium building before, between and after Hurricanes Jeanne and Frances made landfall in South Florida in October, 2004." Id. at 1284. Travelers had issued to the association a "Non-Profit Management and Organization Liability Insurance Policy" which covered " 'loss ... incurred by the [Association] as the result of any claim ... made against the [Association] ... for a Wrongful Act." Id. at 1283. In the policy, "wrongful act" was defined as "any error, misstatement, misleading statement, act, omission, neglect, or breach of duty committed or attempted, or allegedly committed or attempted, by the Insured organization ...." Id. at 1283. The policy contained an exclusion very similar to the one at issue in this case: " 'for or arising out of any damage, destruction, loss of use or deterioration of any tangible property,' defined to include 'construction defects'...." Id. Travelers moved for a summary judgment on the grounds coverage of the plaintiff's claims were excluded under the policy and thus, it had no duty to defend. The federal district court granted Travelers' motion for summary judgment explaining in pertinent part:

The Florida Supreme Court has held, interpreting a policy exclusion in a CGL policy, that the phrase "arising out of" is broader in meaning than the term "caused by," and means "originating from," having its origin in, growing out of ... flowing from, "incident to or having connection with." Taurus Holdings Inc. v. United States Fidelity and Guaranty Co. , 913 So.2d 528 (Fla. 2005), citing Hagen v. Aetna Casualty & Surety Co. , 675 So.2d 963 (Fla. 5th DCA 1996). While it requires "some causal connection or relationship," it does not require proximate cause in the legal sense. See e.g. Stevens v. Fireman's Fund Ins. Co. , 375 F.3d 464 (6th Cir. 2004) (applying Florida law) ("arising out of" language requires only "but for" causation).
The policy at issue here expressly excludes coverage for claims "for or arising out of any damage, destruction, loss of use or deterioration of any tangible property." The Bursten complaint alleges mold damage, contents damage and loss of use of Bursten's unit as a result of water infiltration caused by Hurricanes Frances and Jeanne. This claim plainly has its origin in, grows out of, flows from or originates from damage to tangible property. But for the alleged water intrusion and damage to the building skin, there would be no Bursten claim for mold, structural damage and loss of use of the Bursten unit. This meets the definition of simple "but for" causation.

Id. at 1288. See also , Parc Condo. Ass'n v. Travelers Cas. & Sur. Co. of Am., No. CV H-15-486, 2016 WL 5172513, at *3 (S.D. Tex. Mar. 31, 2016).

Employing the statutory and jurisprudential rules of interpreting an insurance policy exclusion, we find the property damage exclusion, including the term "arising out of," in the Management Policy is not ambiguous. A de novo review supports the district courts' finding that the property damage exclusion excluded the Trust's claims against the Association-failure to secure adequate compensation to repair the unit; negligently repairing the unit; failure to promptly repair the unit or pay the Trust the proper amount to repair the unit; and failure to properly spend the insurance proceeds to repair the unit-as the claims were " 'arising out of, directly or indirectly ... or in any way involving' property damage." The Trust would not have suffered any alleged damages as a result of the Association's decisions but for or without the property damage caused by the fire to the unit. This claim lacks merit.

The Duty to Defend

The Association asserts the district court erred in failing to find Travelers had a duty to defend it against the Trust's claims.

First, the Association contends the district court committed reversible error when it failed to decide whether Travelers had a duty to defend, as there is no reference to the duty to defend in the district court's written reasons. We disagree. In its written reasons, the district court specifically mentioned the duty to defend, quoting Elliott v. Cont. Cas. Co., 06-1505, p. 5 (La. 2/22/07), 949 So.2d 1247, 1250 : "The insurer's duty to defend suits brought against its insured is determined by the allegations of the plaintiff's petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage." Additionally, the district court granted Travelers' motion for summary judgment which was urged on the ground that coverage was excluded under the policy, and as a result, Travelers' had no duty to defend. This claim lacks merit.

Secondly, the Association contends Travelers owes the Association a duty to defend it against the Trust's claims because the property damage exclusion does not unambiguously exclude coverage.

" 'Generally the insurer's obligation to defend suits against its insured is broader than its liability for damage claims.' " Plaia v. Stewart Enterprises, Inc. , 14-0159, p. 35 (La. App. 4 Cir. 10/26/16, 229 So.3d 480, 504 (quoting Mossy Motors, Inc. v. Cameras Am. , 04-0726, pp. 5-7 (La. App. 4 Cir. 3/2/05), 898 So.2d 602 ). In Bryant v. Motwani , 96-1351, p. 8 (La. App. 4 Cir. 10/30/96), 683 So.2d 880, 884, this Court explained:

The insurer's duty to defend is determined by comparing the allegations of the plaintiff's complaint with the terms of the policy; the insurer generally has a duty to defend unless the allegations in the complaint unambiguously exclude coverage. American Home Assurance Company v. Czarniecki , 255 La. 251, 230 So.2d 253, 259 (1969). The duty to defend is determined solely from the plaintiff's pleadings and the face of the policy, without consideration of extraneous evidence. See Collier v. Williams-McWilliams Co., Inc. , 459 So.2d 719, 724 (La. App. 4th Cir.1984). The plaintiff's complaint against the insured is examined with the assumption that all the allegations are true. West Brothers of DeRidder v. Morgan Roofing , 376 So.2d 345, 348 (La. App. 3d Cir.1979). Where the pleadings, taken as true, allege both coverage under the policy and liability of the insured, the insurer is obligated to defend, regardless of the outcome of the suit or the eventual determination of actual coverage. American Home at 259, 230 So.2d 253.

See also , Plaia , 14-0159, p. 35, 229 So.3d at 504 (quoting Mossy Motors, Inc. , 04-0726 at pp. 5-7, 898 So.2d at 606-07 )(where this Court explained that comparing the allegations in the petition to the terms of the policy to determine a duty to defend is referred to as the "eight-corners rule.").

The terms of the Management policy provided that Travelers "has no duty to defend any claim unless duty-to-defend coverage has been specifically provided herein [the policy]." The Management policy required Travelers to pay for "Loss for Directors and Officers Wrongful Acts" and the policy defined "Loss" to include "Defense Expenses." Turning to the petition, the Trust alleges that the Association breached its duties under La. R.S. La. R.S. 9:1123.112 and La. C.C. art. 2315. Specifically, the Trust asserts that the Association (1) failed to secure adequate compensation to repair the Trust's unit and negligently repaired the unit, (2) failed to promptly repair the unit or pay the Trust the proper amount to repair the unit; and (3) failed to properly spend the insurance proceeds to repair the unit. As discussed supra , these claims arise out of and are derivative of the property damage caused by the fire to the unit, and the property damage exclusion of the Management Policy unambiguously excludes these claims. This Court espoused in Louisiana Citizens Prop. Ins. Corp. v. Age , 12-0805, p. 4 (La. App. 4 Cir. 11/28/12), 104 So.3d 675, 677, (citing Crabtree v. Hayes-Dockside, Inc. , 612 So.2d 249, 251 (La. App. 4 Cir.1992) ), that "[i]t is settled that when an exclusion to a policy is applicable, the insurer owes no duty to defend or indemnify the insured." Thus, Travelers' owed no duty to defend, and this claim lacks merit.

"Illusory Coverage"

Lastly, the Association urges application of the property damage exclusion to the Trust's claims will result in "illusory coverage" as the Management Policy was purchased by the Association to provide coverage for its "officers and directors under situations in which they were sued for actions take[en] in the performance of their ministerial duties."

The Association points out that in Orleans Par. Sch. Bd. v. Scheyd, Inc. , 95-2653, p. 9 (La. App. 4 Cir. 4/24/96), 673 So.2d 274, 279, this Court espoused that "[i]t would be illogical, and perhaps against public policy, to provide a specific coverage, collect a premium, then by way of endorsement, totally exclude that coverage." Travelers responds that in Orleans Parish School Bd. , supra , this Court was referring to an endorsement in the policy which negated all coverage under the policy and contends the Association failed to show how the property damage exclusion would have negated "all possibility of coverage for any claim under the Policy."

Additionally, the Association cites Doerr, noting that the Doerr Court discussed the expectations of consumers in purchasing liability insurance which included the insured expecting to be "insulated generally from liability claims." Id. , 00-0947 at p. 6, 774 So.2d at 127. In response, Travelers argues Doerr is distinguishable because the Supreme Court discussed the insured's expectation of coverage in return for payment of the premium after finding the pollution exclusion in a parish's commercial general liability policy was ambiguous; and, in this case, the exclusion is not ambiguous.

In Doerr , the Supreme Court held that when interpreting a contract, a literal reading of a contract should not lead to an absurd consequence. Id. , 00-0947 at pp. 6, 774 So.2d at 124. The Doerr court concluded a literal reading of a pollution exclusion in an insurance policy would result in an absurd consequence-excluding coverage "for all interactions with irritants or contaminants of any kind," and it would "alter the general scope and expectation of the parties." Id. , 00-0947 at pp. 12, 25, 774 So.2d at 127, 135. As a result, the Supreme Court found the pollution exclusion ambiguous. Id. , 00-0947 at p. 5, 774 So.2d at 124-25.

In the case sub judice , we find a literal reading of the property damage exclusion in the Management Policy does not lead to an absurd consequence, and it does not alter the general scope and expectation of the parties. Unlike Doerr , the property damage exclusion, in this case, does not exclude coverage for the Association's errors, omissions and breach of duty that do not arise out of property damage. As discussed supra , multiple cases have interpreted similar policy exclusions to exclude intangible property damage analogous to the claims in this case, and these courts have not found such a reading would lead to absurd consequences. Moreover, insurers can limit their liability absent a conflict with statutory provisions or public policy. Pareti , 536 So.2d at 421 (citations omitted). The Association fails to show nor have we found that the exclusion is against a statutory provision or against public policy. This claim lacks merit.

Accordingly, we find Travelers carried its burden of proving the Trust's claims were excluded from coverage under the Management Policy as a matter of law, and a de novo review supports the district court's judgment dismissing the third-party demand and granting Travelers' motion for summary judgment.

Conclusion

Accordingly, the district court's judgment is affirmed.

AFFIRMED

      The Trust also prayed for all attorneys' fees and court costs incurred in the case pursuant to La. R.S. 9:1121.104.

      Louisiana Code of Civil Procedure Article 966 codifies the summary judgment process. Article 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The motions, in this case, were filed after the effective date of this Act, thus, the amended version of La. C.C.P. art. 966 applies. La. C.C.P. 966(C)(4) provides: "In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917."

      --- So.3d at ----, 2018 WL 992322 *1.

      La. C.C.P. art. 966(F) provides that "[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time."

      The opinion was corrected on reh'g but the correction was unrelated to the text cited. See Doerr v. Mobil Oil Corp. , 00-0947 (La. 3/16/01), 782 So.2d 573.

      The Association cites "Couch on Insurance, § 101:52."

      The Association claims that "the Amended Petition does not allege that the Association actually caused damage ...."

      The policy exclusion in Burmaster did not use the language "arising out of"; rather, it provided in pertinent part:
      2. Exclusions
      This insurance does not apply to:
      a. Any "claim" for "bodily injury", "property damage" or "personal injury."
      * * *
      7. "Property damage" means:
      a. Physical injury to, or criminal abstraction of, tangible property, including all resulting loss of use, or resulting reduction in value of that property; or
      b. Loss of use, or reduction in value, or tangible property that is not physically injured or criminally abstracted.
      Burmaster , 10-1543 at pp. 6-7, 64 So.3d at 318.

      The plaintiffs' damages included "contamination of property, loss of use of property, increased living expenses, displacement costs, diminution of property value, ecological damages, loss of income, lost profits, lost business opportunity, inconvenience, mental anguish, emotional distress, bodily harm, and past and future medical expenses." Chicago Prop. Interests, L.L.C. , 08-526 at p. 4, 8 So.3d at 45.

      In Parc Condo. Ass'n. , 2016 WL 5172513, at *3, a condominium owners' units were damaged during Hurricane Ike. The owner filed suit against the condominium association and its insurer. A dispute arose regarding coverage, including the duty to defend, between the association and its insurer under the association's management and liability policy. The property damage exclusion at issue stated that "the Insurer shall not be liable to make payment for Loss in connection with any Claim made against any of the Insureds: For or arising out of any damage, destruction, loss of use or deterioration of any tangible property." Id. (footnote omitted.) The parties agreed that the claims arising out of property damage caused by Hurricane Ike fell under the property damage exclusion. However, the association asserted there was coverage for the condominium owners' claims of mental anguish suffered as result of the actions of the association such as physical threats, harassment, and retaliation when the owners tried to communicate with the Association about making the repairs; failure of the Association to properly insure the units before the hurricane occurred, and the Association overcharging through its agent. The federal district court found the claims, except the claim that the Association was overcharging through its agent, were incidental to Hurricane Ike and excluded under the property damage exclusion. The court explained in pertinent part:
      Under Texas law, "arise out of" "means that there is simply a causal connection or relation, which is interpreted to mean that there is but for causation, though not necessarily direct or proximate causation." Basic Energy Servs., LP v. Great N. Ins. Co. , 347 Fed.Appx. 83, 88 (5th Cir. 2009) (citing Utica Nat'l Ins. Co. of Tex. v. Am. Indem. Co. , 141 S.W.3d 198, 203 (Tex. 2004) ). The claim must only "bear an incidental relationship to the described conduct for the exclusion to apply." Nutmeg Ins. Co. v. Clear Lake City Water Authority , 229 F.Supp.2d 668, 691 (S.D. Tex. 2002) (Harmon, J.) (citing Scottsdale Ins. Co. v. Tex. Sec. Concepts & Investigation , 173 F.3d 941, 943 (5th Cir. 1999) ).
      Id.

      The Supreme Court denied writs in this case. Plaia , 16-2264 (La. 2/3/17), 215 So.3d 692 ; 16-2261 (La. 2/3/17), 215 So.3d 698 ; and 16-2258 (La. 2/3/17), 215 So.3d 699.

      In Chicago Prop. Interests, L.L.C. v. Broussard , 08-526, p. 10, 8 So.3d at 49, discussed supra , the plaintiffs also alleged that the property damage exclusion essentially "excludes all people and all things from any coverage whatsoever." The Fifth Circuit noted "the ... policy provides coverage for a seemingly minute variety of 'Wrongful Acts' by public officials." Id. However, the court rejected plaintiffs' argument and held there was one category of damages which would arguably not be excluded such as purely economic damages. The court explained if the plaintiffs alleged that "the parish president arbitrarily and capriciously failed to reopen the parish after public services had been restored, the plaintiffs could argue that they suffered a loss of business opportunity, assuming that they suffered no property damage." Id. , 08-526 at pp. 11, 8 So.3d at 49. Additionally, the court concluded that "[i]n any event, Jefferson Parish officials are free to provide themselves with whatever insurance coverage they see fit." Id. , 08-526 at p. 11, 8 So.3d at 49.


source: Caselaw Access Project

license: Public Domain

text:
    CCNO MCDONOUGH 16, LLC v. R4 MCNO ACQUISITION, LLC; Riverside Drive Partners, LLC; and Jack T. Hammer, et al
    NO. 2018-CA-0490
    Court of Appeal of Louisiana, Fourth Circuit.
    November 14, 2018
    James M. Garner, John T. Balhoff, II, Emily E. Ross, Melissa R. Harris, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, LA 70112, COUNSEL FOR PLAINTIFFS/APPELLEES
    Laura F. Ashley, Pauline Hardin, JONES WALKER WAECHTER POITEVENT CARRERE & DENEGRE, LLP, 201 St. Charles Avenue, 49th Floor, New Orleans, LA 70170-5100, COUNSEL FOR THIRD PARTY PLANTIFF/APPELLEES
    Stephen H. Kupperman, Stephen R. Klaffky, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC, 909 Poydras Street, 24th Floor, New Orleans, LA 70112, COUNSEL FOR THIRD PARTY DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
    Judge Edwin A. Lombard The defendant, Riverside Drive Partners, LLC ("Riverside") appeals the district court judgment denying its motion for a new trial related to its order of January 8, 2018, dismissing all pending claims against three parties in this multiparty litigation: (1) CCNO McDonough 16, LLC ("CCNO"); (2) R4 MCNO Acquisition LLC ("R4"); and (3) Joseph A. Stebbins, II. After review of the record in light of the applicable law and arguments of the parties, the district court judgment is affirmed.
    Relevant Facts and Procedural History
    This litigation arises out of a dispute among partners in a real estate development related to the conversion of an existing historic building into an affordable housing complex. Pursuant to the Operating Agreement signed on September 30, 2013, McDonough 16, LLC, was formed to acquire, rehabilitate, and ultimately lease and operate a multi-family apartment project consisting of the historic building and a new construction building. In turn, McDonough 16, LLC had two members, also limited liability entities: (1) the "Managing Member," CCNO and (2), the "Investor Member," R4, a Delaware limited liability company with its principal place of business in New York. Likewise, CCNO had two limited liability partnerships as members: (1) CCNO Partners 2, LLC, which was formed by two members who were residents of and domiciled in Orleans Parish: Mr. Stebbins and Michael Mattax; and (2) the appellant, Riverside, a Florida limited liability company with its principal place of business in Florida whose sole member, Jack Hammer, is a resident of and domiciled in Georgia. Iberia Bank was lender for the project.
    Work on the project proceeded, but on May 25, 2016, a petition for a temporary restraining order and preliminary and permanent injunctive relief was filed by CCNO (the managing member of the project) against R4 (the investor member of the project) to prohibit its removal as manager of the project. On May 24, 2017, R4 filed an amended answer and a reconventional demand against CCNO, a cross-claim against Riverside, and a third-party claim against CCNO Development, LLC ("CCNO Development").
    On October 10, 2017, the parties involved in the litigation (CCNO, R4, Mr. Stebbins, and, initially, Mr. Hammer on behalf of Riverside) converged for a mediation conducted by John Perry. Mr. Hammer subsequently left and a settlement agreement was executed between CCNO, CCNO Development, R4, and Mr. Stebbins. Based on this settlement agreement, an ex parte motion to dismiss with prejudice was filed by the settling parties, informing the district court that the claims between them had been amicably resolved and seeking dismissal of the lawsuit while reserving "any and all claims and rights" any of the settling parties "may" have against Riverside. Accordingly, on January 8, 2018, the district court signed an order dismissing with prejudice the claims between CCNO, R4, CCNO Development, and Mr. Stebbins, but reserving any and all claims and rights the settling parties may have against Riverside.
    On January 16, 2018, Riverside filed a "Motion for a New Trial on the Ex Parte Partial Motion to Dismiss with Prejudice," arguing that CCNO lacked the authority to enter into any settlement without Riverside's consent under the terms of the CCNO operating agreement. After a hearing, the district court denied the motion on March 29, 2018. This devolutive appeal follows.
    Applicable Law
    La. Code Civ. Proc. art. 1971 provides that "[a] new trial may be granted, upon contradictory motion of any party ... to all or any of the parties and on all or part of the issues, or for reargument only." Peremptory grounds for a new trial include a judgment clearly contrary to the law and the evidence, newly discovered evidence, or jury improprieties. La. Code Civ. Proc. art. 1972. The district court has the discretionary authority to grant a new trial "in any case if there is good ground therefor, except as otherwise provided by law." La. Code Civ. Proc. art. 1973.
    "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. Civ. Code art. 2046. "A party who asserts that an obligation ... has been modified must prove the facts or acts giving rise to the ... modification." La. Civ. Code art. 1831.
    Discussion
    The only issue before the court in this appeal is whether Riverside's approval was required in order for CCNO, R4, and Mr. Stebbins to settle their claims against each other in this litigation and, concomitantly, whether the district court abused its discretion in denying the appellant's motion for a new trial.
    Although Riverside asserts that under the CCNO Operating Agreement, neither member (Riverside or CCNO Partners 2, i.e. Mr. Stebbins) can enter into an agreement unilaterally, this proposition is not supported in the clear language of the CCNO Operating Agreement. Rather, Section 3. 13 of the CCNO Operating Agreement provides:
    Overall Management Vested in Members and Managers. Except as expressly provided otherwise in this Operating Agreement or otherwise agreed in writing at a meeting, management of the Company is vested in the Members in proportion to their initial Capital Contributions , and every Member is hereby made a Manager. All powers of the Company are exercised by or under the authority of the Managers and Members and the business and affairs of the Company are managed under the direction of the Members and Managers. The Managers may engage in other activities of any nature. (Emphasis added).
    In addition, the CCNO Operating Agreement defines "Majority in Interest" as "any referenced group of Managers, Members or persons who are both, a combination who, in aggregate, own more than fifty percent (50%) of the Membership Interests owned by all of such referenced group of Managers and Members." Notably, Section 2.05 of the CCNO Operating Agreement specifically provides that any amendment to the agreement requires the approval of the beneficiary of any mortgage lien, i.e., Iberia Bank.
    Riverside does not dispute that it owns less than fifty per cent of the CCNO shares or that CCNO Partners 2, of which Mr. Stebbins is a member, owns proportionally more of the membership interest in CCNO. Rather, Riverside asserts that this does not matter because, although the CCNO Operating Agreement clearly established CCNO Partners 2 owned 66.67% of CCNO (and, concomitantly, that Riverside only 33.33%), a subsequent amendment altered the proportion of ownership to 60% (CCNO Partners 2) and 40% (Riverside) and redefined "Majority in Interest" to mean "more than 60%," thereby making any settlement agreement reached without the appellant's consent invalid. Riverside argues that this amendment is operative and fully applicable in this matter because, although there is no written approval of the amendment by Iberia Bank, the amendment was included in the documents in Iberia Banks's possession at the time of the closing and release of funds for the project. Thus, Riverside argues that Iberia Bank's approval of the amendment was de facto and, therefore, its terms are applicable in this matter. Further, according to Riverside, the settlement agreement between the parties of this litigation without Riverside's specific approval is invalid and the district court erred in denying its motion for a new trial.
    Riverside's position is not supported by the record in this case or the applicable law. The burden is on Riverside, as the party asserting that the CCNO Operating Agreement had been amended, to show the existence and validity of such an amendment. As previously observed, there is no evidence in the record to show that Iberia Bank approved the amendment as holder of the mortgage lien (as required by the CCNO Operating Agreement) or even that its approval was ever sought. Riverside's assertion of de facto approval is not persuasive, particularly in light of the ambiguity as to whether the amendment was drafted before or after the mortgage loan was executed. Moreover, there is no indication in the record that Riverside had previously objected or interceded in management decisions regarding CCNO or any other evidence that Riverside's consent was a necessary component of CCNO's agreement to settle this litigation. Riverside does not dispute that CCNO Partners 2 previously managed CCNO without Riverside's input or objection, or that the settlement agreement was in the best interest of CCNO. Finally, even accepting arguendo that the amendment was valid and applicable in this matter, Riverside has not shown the amendment required approval by the "Majority of Interest" to approve an agreement to settle litigation.
    On the record before the court, we do not find that the district court abused its discretion in issuing the order as requested by the settling parties in this litigation or in denying Riverside's motion for a new trial.

      In addition, Low Income Housing Tax Credits in the amount of $10 million and historic tax credits in the amount of $3.5 million for the project were obtained for the project.

      Riverside and Jack Hammer were also named as defendants in the petition but were voluntarily dismissed as defendants without prejudice on October 19, 2016.

      Notably, in their motion, Riverside cites La. Civ. Code art. 1971 which provides that "parties are free to contract for any object that is lawful, possible, and determined or determinable."

   Conclusion

The judgment of the district court order is affirmed.

AFFIRMED


text:
    Albert DOUCET, Jr., et al. v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-179, CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson Jake, D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFFS-APPELLEES: Albert Doucet, Jr., Debra McZeal, Tommy Mumford, John D. Smith

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFFS-APPELLEES: Albert Doucet, Jr., Debra McZeal, Tommy Mumford, John D. Smith

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. __/__/__), --- So.3d ----, the portion of the trial court's judgment awarding Albert Doucet, Jr., Debra Ann McZeal, Tommy Mumford and John Smith damages for the fear of developing future disease is reversed. We also reverse the trial court's finding that Tommy Mumford and John Smith were exposed to slop oil, as the evidence only showed they were exposed to the air release. In all other respects the judgment of the trial court as to these plaintiffs is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Pickett, J., concurs in part and dissents in part for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Donald MOUTON and Ebony Mouton v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-170 consolidated with CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFFS-APPELLEES: Donald Mouton, Ebony Mouton Jack

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFFS-APPELLEES: Donald Mouton, Ebony Mouton Jack

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, the judgment of the trial court awarding $10,000.00 to Donald Mouton and $10,000.00 to Ebony Mouton Jack in general damages for fear of developing disease is reversed. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Pickett, J. concurs in part and dissents in part for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Rick MATTHEWS v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-172, CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Ricky Matthews

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Ricky Matthews

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, the judgment of the trial court awarding Ricky Matthews $45,732.00 in damages for his exposure to the slop oil released by CITGO is affirmed.

AFFIRMED.

Pickett, J., dissents for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Leslie MOUTON v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-173 consolidated with CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P.O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Leslie Mouton

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Leslie Mouton

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, the judgment of the trial court awarding Leslie Mouton $10,000.00 in damages for fear of developing disease is reversed. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Pickett, J. concurs in part and dissents in part for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Yvonne GLASGO v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-175 consolidated with CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P.O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Yvonne Glasgo

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Yvonne Glasgo

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. __/__/__), --- So.3d ----, the judgment of the trial court awarding Yvonne Glasco $23,925.00 in damages for her exposure to the slop oil released by CITGO is affirmed.

AFFIRMED.

Pickett, J., dissents for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    John THIBODEAUX v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-174 consolidated with CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: John Thibodeaux

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: John Thibodeaux

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, the judgment of the trial court awarding $10,000.00 in damages to John Thibodeaux for fear of developing disease is reversed. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Pickett, J., concurs in part and dissents in part for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Odelia DOWLING v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-171, CA 18-169
    Court of Appeal of Louisiana, Third Circuit.
    November 28, 2018
   Robert E. Landry, Patrick D. Gallaugher, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: Citgo Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT APPELLANT: Citgo Petroleum Corporation

Wells T. Watson, Jake D. Buford, Baggett, McCall, Burgess, Watson & Gaughan, P.O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Odelia Dowling

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Odelia Dowling

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

COOKS, Judge.

For the reasons assigned by this court in Bowling v. CITGO Petroleum Corp. , 18-169 (La.App. 3 Cir. 11/28/18), --- So.3d ----, the judgment of the trial court awarding Odelia Dowling $13,200.00 in damages for her exposure to the release of hydrogen sulfide or sulfur dioxide into the air by CITGO is affirmed.

AFFIRMED.

Pickett, J. dissents for the reasons assigned in 18-169, Bowling v. CITGO Petroleum Corp.


text:
    Pamela Savedra BURFORD v. Harold BURFORD, Jr.
    NO. 2018-CA-0558
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 28, 2018
    Claudia Patricia Santoyo, ATTORNEY AT LAW, 2901 Ridgelake Drive, Suite 205, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Stephen Robert Rue, STEPHEN RUE & ASSOCIATES, 3309 Williams Boulevard, Kenner, LA 70065, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
    Judge Paula A. Brown This case involves incidental matters related to divorce proceedings. A hearing was held on a rule filed by Appellee, Pamela Savedra Burford ("Mrs. Burford") requesting Appellant, Harold Burford, Jr., ("Mr. Buford") to show cause why Mr. Burford should not pay child and spousal support along with other related matters. After taking the matter under advisement, the district court rendered judgment on March 8, 2018. From this judgment, Mr. Burford appeals. In response, Mrs. Burford requests the appeal be dismissed.
    For the reasons given below, the appeal is dismissed.
    FACTS AND PROCEDURAL HISTORY
    The Burfords married and two children were born of the marriage. On September 29, 2017, Mrs. Burford filed a petition for divorce based on La. C.C. art. 102. Simultaneously, Mrs. Burford filed a petition for protection from abuse which included a rule for Mr. Burford to show cause why he should not pay child and spousal support. A hearing was held on February 7, 2018. After taking the matter under advisement, the district court rendered judgment on March 8, 2018, along with written reasons. The district court found that Mr. Burford was voluntarily unemployed and calculation of his child and spousal support should be based on La. R.S. 9:315.11(A).
    On March 29, 2018, Mr. Burford filed in the district court a motion seeking a devolutive appeal which was granted. This appeal follows.
    MOTION TO DISMISS APPEAL
    In her brief to this Court, Mrs. Burford urges that the appeal be dismissed for lack of appellate jurisdiction. Mrs. Burford points out the district court did not render judgment on all of the issues tried at the February 7, 2018 hearing, and it retains jurisdiction of this matter until all the issues are ruled upon. Mrs. Burford contends dismissal of the appeal is warranted as the district court's judgment is not a final appealable judgment.

      The judgment provided:
      Plaintiff's rule for child and spousal support were heard on February 7, 2018. The rules were taken under advisement. The Court now issues this Judgment contemporaneously with its Reasons.
      Present were:
      Claudia Santoyo, # 27287
      Counsel for plaintiff, Pamela Burford
      Stephen Rue, # 19136
      Counsel for defendant, Harold Burford
      IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the defendant was voluntarily unemployed and that calculation of child and spousal support should he based on Louisiana Revised Statute Title 9 Section 315.11(A)[.]

   Louisiana Code of Civil Procedure Article 2083 provides:

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
* * *
C. An interlocutory judgment is appealable only when expressly provided by law.

Louisiana Code of Civil Procedure Article 1915(B) provides in pertinent part:

1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The Comments to Article 1915 note that "[t]he rule that there should be one final judgment is designed to prevent multiplicity of appeals and piecemeal litigation."

The March 8, 2018 judgment did not resolve all the issues before the district court at the February 7, 2018 hearing. The judgment only addressed the issue of Mr. Burford's voluntary unemployment; the judgment did not set monthly child and spousal support along with other matters. Moreover, the record does not reflect the district court designated the March 8, 2018 judgment as final; and Mr. Burford does not assert that he obtained one. Consequently, we find the judgment is a partial judgment and is not appealable absent designation as a final judgment by the district court. La. C.C.P. art. 1915(B) and La. C.C.P. art. 1911. Accordingly, this Court lacks appellate jurisdiction.

Nevertheless, appellate courts have the discretion to consider a partial judgment or interlocutory judgment under its supervisory authority. See Dupuy Storage & Forwarding, LLC v. Max Speciality Ins. Co. , 16-0050, p. 9 (La. App. 4 Cir. 10/5/16), 203 So.3d 337, 344 (quoting Favrot v. Favrot , 10-0986, p. 5 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104 )(wherein this Court noted that "[a] court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of the court.") In Dupuy , this Court held that when appropriate, an improper appeal may be converted by the court to a supervisory writ application. Id.

Before this Court will exercise its supervisory jurisdiction, the motion for appeal must be filed within the thirty-day time period allowed for filing an application for a supervisory writ in accordance with Rule 4-3, Uniform Rules, Courts of Appeal. See Delahoussaye v. Tulane Univ. Hosp. & Clinic , 12-0906, p. 5 (La. App. 4 Cir. 2/20/13), 155 So.3d 560, 563. Next, this Court, in contemplating whether to convert an improper appeal to a supervisory writ application, "has found it appropriate to exercise its supervisory jurisdiction only in cases where the circumstances of the case indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation." Id. (citations omitted).

In the case sub judice , Mr. Burford's appeal was filed within the thirty day period required for filing an application for a supervisory writ. Rule 4-3, Uniform Rules, Courts of Appeal. Notwithstanding, any ruling by this Court on the March 8, 2018 judgment would not terminate litigation; and it would require the matter to be remanded to the district court to resolve the remaining issues such as setting the monthly payments for child and spousal support. As a result, this Court's exercise of its supervisory review in this case would promote piecemeal review and infringe on the principles of judicial economy. See Lobell v. Rosenberg , 17-0111, p. 8 (La. App. 4 Cir. 10/4/17), 228 So.3d 1241, 1247. For these reasons, we decline to exercise our discretion to consider Mr. Burford's motion for appeal as an application for a supervisory writ.

Accordingly, we dismiss the appeal for lack of jurisdiction.

CONCLUSION

For the reasons stated, the appeal is dismissed.

APPEAL DISMISSED

      In her brief to this Court, Mrs. Burford asserts the district court failed to render judgment on why Mr. Burford should not pay for mental health evaluations for the children and Mrs. Burford, and why Mr. Burford should not submit to drug testing, mental health treatment, and substance abuse treatment. Mrs. Burford also complains that the district court failed to set attorney's fees and cost in accordance with La. R.S. 9:314.

      La. C.C.P. art. 1911 provides that "[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)."

      In Lobell, supra , this Court chose not to exercise its discretion to convert an improper appeal to a supervisory writ application and noted that "reviewing this matter in its current procedural posture would promote piecemeal appeals and contravene the principles of judicial economy." Id. , 17-0111, p. 8, 228 So.3d at 1247. In footnote 7 of the opinion, this Court quoted Evans v. Evans , 02-691, pp. 3-4 (La. App. 5 Cir. 11/19/02), 833 So.2d 427, 428, in support, which held that "[j]udicial economy and the avoidance of piecemeal appeals remain guiding appellate principles." Lobell , 17-0111, p. 8, 228 So.3d at 1247, n.7.

      Mr. Burford will not lose his right to appeal the March 8, 2018 judgment once a final judgment has been rendered as to all claims. See Lobell, 17-0111, p. 8, 228 So.3d at 1247 ; Delahoussaye , 12-0906, pp. 5-6, 155 So.3d at 563.


author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Myron Lee TURNER
    NO. 2018-KA-0326
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 28, 2018
    Charles J. Ballay, District Attorney, Sarah A. Tesvich, Assistant District Attorney, 25TH JUDICIAL DISTRICT, PLAQUEMINES PARISH, 102 Avenue G, Belle Chasse, LA 70037, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

In State v. Turner , 16-0230, unpub. (La. App. 4 Cir. 10/19/16), 2016 WL 6094507, writ denied , 16-2056 (La. 9/15/17), 225 So.3d 484 (" Turner I "), this Court affirmed defendant's conviction on four counts of distribution of cocaine but vacated defendant's sentence and remanded the matter to the trial court in order to hold a recusal hearing to determine if recusal of the presiding trial court judge is proper. On remand, the trial court judge, Division "B", issued an order recusing himself on his own motion and ordering the case transferred to Division "A". Thereafter, on January 9, 2018, the trial court sentenced defendant as a third felony offender to twenty-five years at hard labor on each of the four counts of his conviction, to run concurrently with each other but consecutively with the ten-year sentence he was already serving for three other convictions. Defendant now appeals his sentence. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 27, 2014, defendant was charged by bill of information with five counts of distribution of cocaine, violations of La. R.S. 40:967(B)(1). Defendant pled not guilty to all charges. Prior to trial, the State dismissed one count of the bill. At the close of the jury trial, on October 14, 2015, defendant was convicted on the four remaining counts of distribution of cocaine.

On October 15, 2015, the State filed a multiple bill of information charging defendant as a fourth felony offender. On November 2, 2015, defendant filed a motion to quash the multiple bill. On November 6, 2015, the trial court denied defendant's motions for new trial and for post-verdict judgment of acquittal.

On December 16, 2015, the trial court sentenced defendant to twenty-five years on each count of his conviction, sentences to run concurrent with one another but consecutive to a ten year sentence defendant was already serving. Also on that date, the State amended the multiple bill to charge defendant as a third felony offender and proceeded to present evidence to the trial court in support of the multiple bill. Following the presentation of evidence and argument, the trial court denied defendant's motion to quash the multiple bill, found sufficient proof that the State carried its burden of proving the multiple bill, and adjudicated defendant a third felony offender. The trial court vacated defendant's original sentence and resentenced him pursuant to La. R.S. 15:529.1 to forty years, to run consecutive to the sentence he was currently serving.

Defendant timely appealed his conviction and sentence, raising two counseled and two pro se assignments of error. In Turner I , this Court found no merit in defendant's arguments as to insufficiency of evidence to support his conviction, the denial of defendant's challenge for cause to remove a prospective juror, and a claim of ineffective assistance of trial counsel. Turner I , 16-0230, pp. 6-9, 2016 WL 6094507. Accordingly, this Court affirmed defendant's conviction. However, in reviewing defendant's claim that his forty year sentence as a third felony offender was excessive, this Court found that "the trial judge's bias comments on record regarding his past knowledge and experiences with Mr. Turner create a possible conflict of interest that warrants a recusal in this matter." Turner I , 16-0230,2016 WL 6094507. Consequently, this Court vacated defendant's sentence and remanded the matter to the trial court "to hold a recusal hearing to determine whether the recusal of the presiding judge is warranted." Id.

Following the remand, on October 17, 2017, the presiding trial court judge, Division "B", issued an order recusing himself on his own motion and transferring the case to Division "A" for further proceedings. Thereafter, on January 9, 2017, defendant appeared for resentencing in Division "A." In consideration of the Presentencing Investigation, and after hearing arguments from counsel, the trial court resentenced defendant as a third felony offender to twenty-five years at hard labor, to run consecutive to the sentence he is serving in three other cases, pursuant to La. C.Cr.P. art. 883.

On January 12, 2018, defendant filed a motion to reconsider sentence and a motion for appeal. On January 25, 2018, the trial court denied the motion to reconsider sentence but granted the motion for appeal.

Defendant now appeals the sentence imposed on remand from this Court's prior decision affirming defendant's conviction. Turner I , supra .

ERRORS PATENT

A review for errors patent on the face of the record reveals one as to the sentence.

In resentencing defendant as a third felony offender under La. R.S. 15:529.1, the trial court failed to stipulate that defendant's sentence shall be served without benefit of parole for the first two years, and without the benefit of probation or suspension for the entirety of his sentence, in accordance with La. R.S. 40:967(B)(4)(b) and 15:529.1(G). However, pursuant to La. R.S. 15:301.1(A), a sentence which is imposed under the provisions of a statute mandating the restriction of benefits shall be deemed to contain those restrictions. Accordingly, our jurisprudence recognizes that La. R.S. 15:301.1(A)"self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute." State v. Dowell , 16-0371, pp. 4-5 (La. App. 4 Cir. 8/10/16), 198 So.3d 243, 246-47 (quoting State v. Williams , 00-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799 ). Therefore, defendant's sentence is deemed to have been imposed with the restriction of benefits in accordance with La. R.S. 15:529.1(G), and this Court need not take any action to cure this error.

DISCUSSION

In this appeal, defendant raises one counseled assignment of error and four pro se assignments of error. Two of defendant's pro se assignments of error challenge his conviction, arguing insufficient evidence and the denial of his right to a fair trial. However, this Court previously reviewed and affirmed defendant's conviction, which is now final. See Turner I , supra ; La. C.Cr.P. art. 922. Any trial error issues concerning defendant's conviction that were not raised in defendant's original appeal are considered waived and are not subject to review in this appeal. State v. Anderson , 97-2587, p. 6 (La. App. 4 Cir. 11/18/98), 728 So.2d 14, 18 (citing State v. Freeman , 565 So.2d 1084 (La. App. 4 Cir. 1990) ; see also , State v. Carter , 16-1078, p. 3, n.1 (La. App. 1 Cir. 12/22/16), 210 So.3d 306, 308. Accordingly, the scope of review for this appeal is limited to alleged errors in defendant's resentencing. Anderson , supra .

Counseled Assignment of Error

By the sole counseled assignment of error, defendant argues that the twenty-five year sentence imposed by the trial court is unconstitutionally excessive under the circumstances of this case. Defendant challenges both the length of the sentence imposed and the order that it run consecutive to the ten-year sentence he is already serving for prior convictions.

" Art. I, § 20 of the Louisiana Constitution prohibits excessive sentences. Although a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment." State v. Lambert , 15-0629, p. 22 (La. App. 4 Cir. 3/16/16), 191 So.3d 630, 644. A sentence is unconstitutionally excessive when it imposes punishment grossly out of proportion to the severity of the crime, makes no measureable contribution to acceptable goals of punishment, or constitutes nothing more than needless infliction of pain and suffering. Id. ; State v. Smith , 01-2574, p. 6 (La. 1/14/03), 839 So.2d 1, 4.

In reviewing a claim that the sentence imposed is excessive, an appellate court must determine first whether the trial court adequately complied with the statutory guidelines in La. C.Cr.P. art. 894.1. State v. Martin , 13-0628, p. 17 (La. App. 4 Cir. 5/28/14), 141 So.3d 933, 944. If the appellate court finds adequate compliance with La. C.Cr.P. art. 894.1, then it must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, "keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged." State v. Batiste , 06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 820 (quoting State v. Landry , 03-1671, p. 8 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239 ). "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La. C.Cr.P. art. 881.4. Moreover, "[a] trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion." State v. Hackett , 13-0178, p. 14 (La. App. 4 Cir. 8/21/13), 122 So.3d 1164, 1174 (quoting State v. Smith , 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4.). "On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion." Id.

From our review of the resentencing hearing, we find the trial court adequately complied with La. C.Cr. P. art. 894.1 and considered the particular facts of the case and history of this defendant. Prior to sentencing defendant, the trial court stated that the sentencing range for each count of defendant's conviction for distribution of cocaine was two to thirty years, and that the sentencing range as a third felony offender was two-thirds to double the maximum sentence, or twenty to sixty years. The trial court reviewed the Pre-Sentence investigation report and heard arguments by counsel regarding aggravating and mitigating circumstances and defendant's history. The trial court then articulated the considerations taken into account in determining defendant's sentence, particularly regarding whether to run defendant's sentence concurrent or consecutive to the ten-year sentence he was already serving on three prior felony convictions. The trial court explained that La. C.Cr.P. art. 883 provides a clear directive that "[o]ther sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently;" but the trial court noted it had the discretion to deviate from consecutive sentences if warranted under the circumstances of the case and defendant's history. Then, the trial court considered defendant's six prior felony convictions, including "at least one previous act or crime of violence" and several offenses involving the distribution of narcotics, which the court considered to be "serious for the community." After reviewing defendant's history, and considering the sentencing range and the directive from La. C.Cr.P. art. 883, the trial court imposed a sentence of twenty-five years on each count of defendant's conviction in this case, to be served consecutive to the ten-year sentence defendant is already serving for other convictions.

Although defendant concedes that the sentence imposed is within the statutory limits in effect at the time of his offenses, defendant argues the twenty-five year sentence running consecutive to his ten-year sentence is excessive in light of the current, more lenient sentencing provisions for a violation of La. R.S. 40:967(B) and for multiple offender sentencing under La. R.S. 15:529.1(A)(3). Under the current penalty and enhancement provisions, the sentencing range for a conviction of distribution of cocaine and adjudication as a third felony offender would be five to twenty years. Defendant argues that the amended penalty provisions reflect a dramatic change in the public attitude regarding appropriate sentences for drug offenses; and, in light of that dramatic change, he argues that his twenty-five year sentence is excessive. Defendant also argues that the twenty-five year sentence running consecutive to his ten-year sentence amounts to "a virtual life sentence ... for a thirty-five year old man ... for nothing more than selling small amounts of cocaine." We find no merit in defendant's arguments.

"[I]t is generally settled that the law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused." State v. Parker , 03-0924, pp. 9-10 (La. 4/14/04), 871 So.2d 317, 322. "The mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute." State v. Sugasti , 01-3407, pp. 4-5 (La. 6/21/02), 820 So.2d 518, 520 (quoting State v. Narcisse , 426 So.2d 118, 130-31 (La. 1983) ). Although "an ameliorative change in the penalty provision of a statute which occurs after the commission of the offense is a factor to be weighed by the trial judge in imposing sentence ... the trial judge should not derogate from the penalty provision in effect at the time of the commission of the offense." Sugasti , 01-3407, p. 5, 820 So.2d at 520-21.

In this case, the twenty-five year sentence imposed by the trial court is on the lower end of the statutory sentencing range of twenty to sixty years, in effect at the time of the commission of the offenses. Notably, the trial court resentenced defendant to a reduced term of imprisonment; defendant was originally sentenced to forty years, which is a mid-range sentence under the applicable penalty provisions. In addition, the sentence imposed for defendant's conviction of distribution of cocaine and adjudication as a habitual offender is in line with this Court's jurisprudence. See State v. Harvey , 08-0217 (La. App. 4 Cir. 5/13/09), 12 So.3d 496 (affirming a sixty-year sentence imposed on a defendant convicted of distribution of cocaine and adjudicated a second felony offender);

State v. Williams , 05-0176 (La. App. 4 Cir. 5/3/06), 932 So.2d 693 (affirming the imposition of a life sentence on a defendant convicted of distribution of cocaine and adjudicated a third felony offender); State v. Wilson , 04-1156, unpub. (La. App. 4 Cir. 11/23/04), 888 So.2d 1169 (affirming a forty-year sentence for defendant convicted of distribution of cocaine and adjudicated a third felony offender).

Finally, the record reflects defendant's recidivist history that, as noted by the trial court, includes six prior felony convictions, for at least one crime of violence (second degree battery) and numerous drug offenses. The Habitual Offender Law was enacted by the Louisiana Legislature to deter and punish recidivism. See Hackett , 13-0178, p. 15, 122 So.3d at 1175. "A defendant with multiple felony convictions is treated as a recidivist who is to be punished for his instant crime in light of his continuing disregard for the law." Hackett , 13-0178, p. 15, 122 So.3d at 1175. Here, defendant has failed to show that he is exceptional or that he is a victim of the legislature's failure to assign sentences meaningfully tailored to his culpability, the gravity of his offense, and circumstances of his case. See State v. Johnson , 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 677. Consequently, we find no merit to his arguments that the sentence imposed by the trial court was unconstitutionally excessive under the circumstances.

Pro Se Assignment of Error # 1

In this assignment of error, defendant argues he was denied the right to judicial review due to an incomplete record of this case on remand. Specifically, defendant asserts that the transcript of the recusal hearing, ordered by this Court in Turner I , is missing from the record and, consequently, he argues he has been denied meaningful appellate review.

As stated previously, in Turner I , this Court affirmed defendant's conviction but vacated his sentence and remanded to the trial court "to hold a recusal hearing to determine whether the recusal of the presiding judge is warranted." On remand, the presiding judge recused himself from defendant's resentencing on his own motion, reasoning as follows:

The Court informed all parties of his prior representation of Myron Lee Turner, the defendant, prior to trial and sentencing. At the sentencing hearing, the Court noted the prior convictions and the previous sentences Turner had received, including the matter on which the Court had represented Turner several years earlier. For a third felony offender like Turner, the sentencing range was twenty to sixty years; and, the sentence of forty years on each count, to run concurrently with each other, was a mid-range sentence.
In the previous matter in which the Court represented him Turner received a seven-year sentence which the Court noted was a serious sentence that was believed would send a message to him. In the present matter, the Court stated that the message had not been made clear to Turner. Under La. C.Cr.P. art. 894.1(A)(3), a court should impose a sentence of imprisonment if a lesser sentence would deprecate from the seriousness of the defendant's crime.
However, Turner's sentence was vacated by the Fourth Circuit Court of Appeal which concluded that the Court's comments during the sentencing hearing indicated bias based on the Court's past knowledge and experience with Turner and thereby warranted a recusal by the Court. Accordingly, the Court is recusing itself to avoid the perception of bias.

Based on our review of the presiding judge's motion and order recusing himself, we find that the presiding judge adequately complied with this Court's order and, consequently, no recusal hearing was required. See La. C.Cr.P. art. 672. Thus, there is no transcript of a recusal hearing. Upon our review of the record on remand, we find no merit to defendant's argument.

Pro Se Assignment of Error # 3

In this assignment of error, defendant argues that his sentence as a third felony offender is unconstitutional because it constitutes double jeopardy for the underlying offenses for which he was already sentenced.

Both the Fifth Amendment to the United States Constitution and Art. I, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and to protect an accused against multiple punishment for the same conduct. North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) ; State v. Vaughn , 431 So.2d 763, 767 (La. 1983) ; State v. Holloway , 12-0926 (La. App. 4 Cir. 7/3/13), 120 So.3d 795, 797.

It is well-settled law that double jeopardy does not apply to multiple offender proceedings. State v. Langendorfer , 389 So.2d 1271, 1277 (La. 1980) ; see also , State v. Holloway , 12-0926 (La. App. 4 Cir. 7/3/13), 120 So.3d 795, 797. The Habitual Offender Law, La. R.S. 15:529.1, does not create a new or separate offense based on the commission of more than one felony but merely provides for imposition of an increased sentence for persons convicted of second and subsequent felonies. State v. Hayes , 412 So.2d 1323, 1325-26 (La. 1982) ; State v. Boatner , 304 So.2d 661, 662 (La. 1974) ; see also , State v. Dorthey , 623 So.2d 1276, 1279 (La. 1993) (providing that Louisiana's Habitual Offender statute is simply an enhancement of punishment provision; it does not punish status and does not on its face impose cruel and unusual punishment). Accordingly, we find no merit to defendant's argument that his sentence as a habitual offender constitutes double jeopardy.

CONCLUSION

For the foregoing reasons, we affirm the sentence imposed on defendant following remand by this Court in Turner I , supra , affirming defendant's conviction.

AFFIRMED

BELSOME, J., CONCURS IN THE RESULT.

      The facts underlying defendant's offenses are reported in this Court's prior opinion. Turner I , supra . Those facts are not relevant to the issues addressed in this opinion.

      At the time of the commission of his offenses, in 2014, La. R.S. 40: 967(B)(4)(b) provided that a person convicted of distribution of cocaine be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence be imposed without benefit of parole, probation, or suspension of sentence; and, the defendant may be ordered to pay a fine of not more than $50,000. In addition, in 2014, La. R.S. 15:529.1(A)(3)(a), the pertinent sentencing provision for a third felony offender, provided that "[t]he person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction." Thus, under the applicable sentencing statutes, defendant was subject to a sentencing range of twenty to sixty years for his conviction of distribution of cocaine and adjudication as a third felony offender.

      In 2017, the Louisiana Legislature amended and reduced penalty provisions for certain felony offenses, including La. R.S. 40:967(B), and the sentencing enhancements for habitual offenders under La. R.S. 15:529.1. 2017 La. Acts Nos. 281, § 2; 282, § 1.