text:
    Brittany M. BOQUET v. Nicole L. BOQUET
    18-798
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019
   Ann D. Latour, Attorney at Law, 405 West Main Street, Lafayette, LA 70501, (337) 235-3878, COUNSEL FOR OTHER APPELLEE: S. R. B. (minor child)

Jeff Landry, Attorney General, Joseph Scott St. John, Deputy Solicitor General, Chimene St. Amant, Assistant Attorney General, P.O. Box 94005, Baton Rouge, LA 70804-9005, (225) 326-6000, COUNSEL FOR OTHER APPELLEE: State of Louisiana, Office of the Attorney General

Henry Adams, III, Adams & Associates, 905 The Boulevard, Rayne, LA 70578, (337) 334-7000, COUNSEL FOR DEFENDANT/APPELLEE: Nicole L. Boquet

Bhyllie J. Mouton, Shane M. Mouton, Mouton & Mouton Law Firm, LLC, 905 The Boulevard, Rayne, LA 70578, (337) 334-7000, COUNSEL FOR DEFENDANT/APPELLEE: Nicole L. Boquet

Danielle Thompson, Paul J. deMahy, The Thompson Law Firm, 2901 Johnston Street, Suite 301, Lafayette, LA 70503, (337) 534-8761, COUNSEL FOR PLAINTIFF/APPELLANT: Brittany M. Boquet

Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.

SAUNDERS, Judge.

This appeal comes to this court from a judgment granting an exception of prescription by the trial court where an untimely action to disavow was instituted by the spouse of a birth mother to a child. In the course of the marriage, a child was born giving the spouses the legal status of parents to the minor child.

The spouse of the birth mother instituted divorce proceedings. In response, the birth mother filed an answer and reconventional demand for child support. Thereafter, the spouse of the birth mother filed a disavowal action more than one year from the birth of the minor child. The birth mother responded to the disavowal action by filing an exception of prescription, which the trial court granted.

The spouse of the birth mother files this appeal asserting that the trial court erroneously applied La.Civ.Code arts. 185 and 189 in this matter. We find no error by the trial court.

FACTUAL AND PROCEDURAL HISTORY:

Brittany and Nicole Boquet married on December 18, 2015. At the time of the marriage, Nicole was pregnant. Brittany had full knowledge that Nicole was pregnant. The child was born on February 5, 2016. Brittany was aware of the circumstances that brought into question whether she was not the biological parent of the child. Brittany accepted tax benefits of having a child with Nicole when they filed a joint tax return for the year 2016.

On March 14, 2017, Brittany filed a petition for divorce and termination of the matrimonial regime from Nicole. In that petition, Brittany alleged that one child was born of their marriage. Brittany sought joint custody and access to the child pursuant to a custody plan.

On April 19, 2017, Nicole filed an answer to Brittany's petition for divorce and a reconventional demand seeking child support from Brittany. On April 28, 2017, Brittany filed a petition for declaratory judgment and disavowal of the minor child. Nicole responded by filing various pleadings and exceptions, of which is relevant, an exception of prescription. The trial court granted Nicole's exception of prescription. Brittany appeals, alleging eight assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred by ruling that Civil Code Articles 185 and 189 violated the U.S. and Louisiana Constitutions without a party specifically challenging their constitutionality in a pleading and without the Attorney General being notified.
2. The Trial Court erred in deciding this controversy based on the spousal relationship between Brittany Boquet and Nicole Boquet rather than on the absence of a parent-child relationship between Brittany Bouquet and [S.R.B.].
3. The Trial Court erred by retroactively applying Pavan v. Smith , --- U.S. ----, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017).
4. The Trial Court erred when it declared that Civil Code Article 185 violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and Article 1, Section 3 of the Louisiana Constitution.
5. The Trial Court erred in usurping the Legislature's authority by redrafting the Civil Code Article 185 in such a way that it violated Brittany Boquet's rights of Equal Protection guaranteed by the 14th Amendment to the U.S. Constitution and Article 1, Section 3 of the Louisiana Constitution.
6. The Trial Court erred in retroactively applying its decision that Civil Code Article 185 violates the Equal Protection clauses of the 14th Amendment to the U.S. Constitution and Article 1, Section 3 of the Louisiana Constitution.
7. The Trial Court erred by usurping the authority of the Legislature and violating Civil Code Article 3457 by redrafting Civil Code Article 189 to apply to the disavowal of maternity by the wife of a birth mother.
8. The Trial Court erred in applying its redrafted Civil Code Article 189 retroactively, in violation of the Due Process Clauses of the 14th Amendment of the U.S. Constitution and Article 1, Section 3 of the Louisiana Constitution.

ASSIGNMENTS OF ERROR NUMBERS FOUR, FIVE, SIX, SEVEN, AND EIGHT:

Constitutional Issues

Nicole raises constitutional issues in assignments of error numbers four, five, six, seven, and eight. We decline to address these assignments of error as they are not properly before us.

In Johnson v. Welsh , 334 So.2d 395, 396 (La.1976), the Louisiana Supreme Court stated, "[i]t is well settled that all laws are presumed to be constitutional until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized." Here, neither party challenged the constitutionality of La.Civ.Code arts. 185 and 189. Accordingly, the constitutionality of La.Civ.Code arts. 185 and 189 is not in the proper posture for this court's review.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:

In the first alleged error, Brittany asserts that the trial court erred by ruling that La.Civ.Code arts. 185 and 189 violated the U.S. and Louisiana Constitutions without a party specifically challenging their constitutionality in a pleading and without the Attorney General being notified. We agree that the trial court's reasons for judgment iterated that it was basing its judgment on its finding that La.Civ.Code arts. 185 and 189 were not constitutional. This is not proper.

However, Brittany correctly protesting that the trial court's reasons for judgment are improperly based on constitutional grounds does not render the actual judgment of the trial court erroneous.

It is well settled that the trial court's "oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment." Bellard v. Am. Cent. Ins. Co. , 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671 ; La.Code Civ.P. art. 1918. "The written reasons for judgment are merely an explication of the Trial Court's determinations. They do not alter, amend, or affect the final judgment being appealed. ..." State in the Interest of Mason , 356 So.2d 530 (La.App. 1 Cir. 1977).

GBB Props. Two, LLC v. Stirling Props., LLC , 17-384, pp. 3-4 (La.App. 3 Cir. 7/5/17), 224 So.3d 1001, 1004.

The judgment of the trial court states, "IT IS FURTHER ORDERED that this court grants Nicole L. Boquet's Peremptory Exception of Prescription and assesses costs for the Exception to Brittany M. Boquet." Therefore, we will review whether the grant of Nicole's exception was proper.

The standard of review of a grant of an exception of prescription is determined by whether evidence was adduced at the hearing of the exception. If evidence was adduced, the standard of review is manifest error; if no evidence was adduced, the judgment is reviewed simply to determine whether the trial court's decision was legally correct. Allain v. Tripple B Holding, LLC , 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278. The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in which case the plaintiff must prove that it is not. Id.

Arton v. Tedesco , 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043. Here, evidence was introduced at the hearing. Accordingly, we will review this matter using the manifest error standard of review.

Proper Application of La.Civ.Code arts. 185 and 189

In assignment of error number two, Nicole argues that the trial court erred in deciding this controversy based on the spousal relationship between she and Brittany Boquet rather than on the absence of a parent-child relationship between Brittany Bouquet and S.R.B. In the third assignment of error, Nicole contends that the trial court erred by retroactively applying Pavan v. Smith , --- U.S. ----, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017). We find no merit to these contentions.

United States Constitution Article VI states, "[t]his Constitution ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Based on "the supreme law of the land," i.e., the United States Constitution, the United States Supreme Court, in Obergefell v. Hodges , --- U.S. ----, 135 S.Ct. 2584, 2601, 192 L.Ed.2d 609 (2015), stated:

The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.

The concept of equal treatment for marriage between a man and woman and marriage between spouses of the same sex was reiterated by the United States Supreme Court in Pavan , --- U.S. ----, 137 S.Ct. 2075. In Pavan , an Arkansas Statute, as written, allowed for a female spouse of a birth mother to be excluded from a child's birth certificate. The Supreme Court ordered that the statute be applied constitutionally by extending the same "constellation of benefits" to female spouses of birth mothers as were given to male spouses of birth mothers.

Here, La.Civ.Code art. 185 (emphasis added) states, "[t]he husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage." Additionally, La.Civ.Code art. 189 (emphasis added) states, in pertinent part, the following:

The action for disavowal of paternity is subject to a liberative prescription of one year. This prescription commences to run from the day of the birth of the child, or the day the husband knew or should have known that he may not be the biological father of the child, whichever occurs later.

Thus, under an interpretation of La.Civ.Code arts. 185 and 189 in the environment existing prior to Obergefell v. Hodges , the female spouse of a birth mother would not enjoy the same "constellation of benefits" as those of a male spouse of a birth mother. However, the United States Supreme Court has made it clear that this old framework is not the status of the laws of this land. Thus, to interpret La.Civ.Code arts. 185 and 189 as Brittany suggests is not proper under an established interpretation of "the supreme law of the land" as made by our United States Supreme Court in Obergefell and reiterated in Pavan . As such, using the reasoning of Pavan , we find that we must apply La.Civ.Code arts. 185 and 189 in such a manner that Brittany, the female spouse of a birth mother, has the same "constellation of benefits" and obligations as those of a male spouse of a birth mother.

In the case before us, on March 14, 2017, Brittany filed a petition for divorce from Nicole. The petition alleged they were married on December 18, 2015. Brittany knew that Nicole was pregnant when they married. A child was born of the marriage on February 5, 2016. Therefore, under La.Civ.Code art. 185, Brittany is presumed to be a parent of the child. Further, under La.Civ.Code art. 189, the one year liberative prescription of any disavowal action began to run on February 5, 2016, the date of the child's birth and also when Brittany knew or should have known that she might not be a biological parent of the child. Thus, Brittany had until February 5, 2017 to file an action for disavowal. Brittany's petition for disavowal was filed on April 28, 2017. Therefore, Brittany's petition for disavowal was prescribed on its face, and she has the burden of proving why her petition to disavowal was not prescribed. We find no evidence that Brittany has carried this burden. Accordingly, we find that the trial court's judgment granting Nicole's exception of prescription was legally correct.

CONCLUSION:

Brittany Boquet files eight assignments of error. We decline to address any assignments that question the constitutionality of any laws, as any such issues are not in the procedurally proper posture. We further find that Brittany's remaining assignments, which question whether La.Civ.Code arts. 185 and 189 can be applied in this case and whether Nicole Boquet's exception of prescription was improperly granted by the trial court, are without merit. All costs of these proceedings are assessed to Brittany Boquet.

AFFIRMED.

      We note that while not procedurally proper to consider the constitutionality of La.Civ.Code arts. 185 and 189, under Louisiana Federation of Teachers v. State , 13-120, 13-232, 13-350, pp. 22 (La. 5/7/13), 118 So.3d 1033, 1048 (citations omitted), the Louisiana Supreme Court laid out these principles:
      [B]ecause it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so. In other words, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality.
      In choosing to align La.Civ.Code arts. 185 and 189 with the current environment as laid out by Obergefell and Pavan , this court is adhering to these principles.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Troy Edward DELOZIER
    KH 18-177
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019
    Phillip Terrell, Jr., District Attorney, Ninth Judicial District Court, P. O. Box 7358, Alexandria, LA 71306-0358, (318) 473-6650, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
    Troy Edward Delozier, Louisiana State Penitentiary, 17544 Tunica Trace, Angola, LA 70712
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

Troy Delozier's convictions and sentences were affirmed on appeal. State v. Delozier , 14-493 (La.App. 3 Cir. 11/12/14), 151 So.3d 173, writ denied as untimely filed, 14-2649 (La. 10/23/15), 177 So.3d 708, reconsideration granted, timely filed, denied on merits , 14-2649 (La. 4/8/16), 191 So.3d 578.

Relator filed an untitled pleading with the trial court, signed on September 18, 2017, requesting the production of documents. The untitled pleading does not contain a file date stamp. The pleading requested the following documents and that the trial court issue a mandamus to the clerk's office, the court reporter, and the District Attorney's Office, as follows:

1. The trial court's contemporaneous [transcribed] records required by law of:
(A) Grand jury proceedings of indictment.
(B) All pre trial motions and proceedings.
(C) Criminal court trial proceedings, including jury pool, jury strike sheet, and D.A. and defense counsel attendance of the Grand Jury trial, ALL.
2. Any bill of particulars.
3. District Court minute entries.
4. Copy of all D.A. files.
5. Copy of all bench recordings between judge, D.A. and counsel for Troy Delozier.

On February 8, 2018, the trial court granted Relator's request insofar as the request for the district court minutes pursuant to State ex rel. Simmons v. State , 93-275, 94-2630, 94-2879 (La. 12/16/94), 647 So.2d 1094. The trial court noted the record showed there was no bill of particulars filed in this case. The trial court ordered the court reporter to provide Relator with a cost estimate of production of the requested transcripts, noting that if there were any "bench recordings," the recordings would be encompassed within the trial transcript. Citing United States v. Proctor & Gamble Co, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), the trial court denied the grand jury transcript and all the other documents related to the grand jury proceedings based on the need for grand jury secrecy. As for the District Attorney's files, the trial court noted that Relator must seek production of the copies from the District Attorney's Office.

Relator filed with this court a pleading entitled "Petitioner Moves for Writ of Mandamus to be Enforced for the Production of Documents, Pursuant to La.C.Cr.P. Art. 843, and La.R.S. 44:31, and La.R.S. 44:35," on March 2, 2018, wherein he desires this court to grant his requests for the production of documents pertaining to his convictions and sentences.

Relator attached to this writ application a copy of a letter to the Rapides Parish Clerk's Office requesting copies of the entire court record. The letter contains a filing date stamp of December 20, 2016.

Relator also attaches to this writ application a copy of a second letter to the Rapides Parish Clerk's Office requesting a copy of the entire court record and a form letter to the District Attorney's Office requesting all the District Attorney's files in his case pursuant to the public records law. These requests were signed and dated on July 6, 2017, by Relator.

Further included with this writ application is a "Motion to Temporarily Set Aside Supplement Post-Conviction Filing and Order for Extension of Time to File Supplemental Post-Conviction." This motion was signed by Relator on July 6, 2017, but does not contain a file date stamp.

Also included with this writ application is a letter dated July 28, 2017, from this court advising Relator that his request for the court records must be made to the district court clerk's office as they are the custodian of the records requested, a letter dated August 23, 2017, to the Rapides Parish Clerk's Office checking on the status of the request to extend filing date for the filing of a supplemental post-conviction application, and the above February 18, 2018 order from the trial court.

Relator does not challenge the trial court's ruling on his request for the grand jury transcripts and related materials. Accordingly, we will not address this issue.

Relator also contends in his writ application that he was granted an extension of the time limitation to file a supplement to the post-conviction relief application ("PCR"). He filed a "Motion to Temporarily Set Aside Supplemental Post-Conviction Filing and Order for Extension of Time to File Supplemental Post-Conviction" seeking an extension of time to supplement his PCR because he does not have his trial transcript. Relator complains, however, that the trial court never responded to the motion seeking an extension of time to supplement his PCR. In response to an information request to the trial court, on January 24, 2019, the trial court sent this court a copy of its docket listing, which does not reflect a pleading titled as or similarly to "Motion to Temporarily Set Aside Supplemental Post-Conviction Filing and Order for Extension of Time to File Supplemental Post-Conviction", nor does it reflect that anything was filed in July or August of 2017.

With Relator's September 14, 2017 untitled pleading, Relator apparently supplied the trial court with the above-referenced letters and requests for the records from both the Rapides Parish Clerk's Office and the District Attorney's Office. Relator requested that the trial court issue an order of mandamus to the clerk of court, the court reporter, and to the District Attorney's Office to supply him with copies of the requested records or copies at a reduced rate.

In McKnight v. State, 98-2258, p. 1 (La.App. 1 Cir. 12/3/98), 742 So.2d 894, 895-96, the first circuit discussed the procedure for filing a public records request or seeking records under La.Code Crim.P. art. 822, as follows:

A "person" who wants to examine public records must make the request to the custodian of the records. See La. R.S. 44:31 & 44:32. An individual in custody after sentence following felony conviction who has exhausted his appellate remedies is permitted access to public records if the request is limited to grounds upon which the individual could file for postconviction relief under La.Code Crim. P. art. 930.3. La. R.S. 44:31.1. Section 31.1 does not prevent an inmate from seeking records simply because the three-year time limitation for the filing of postconviction relief has passed. State ex rel. Leonard v. State, 96-1889 (La. 6/13/97), 695 So.2d 1325. See La.Code Crim. P. art. 930.8. If a request for public records is denied by the custodian, before seeking relief from this court, the person must first institute civil proceedings for a writ of mandamus at the trial court level. See La. R.S. 44:35(A). Should the person prevail, he should be prepared to pay the regular service fees for copies of the documents. See State ex rel. Nash v. State, 604 So.2d 1054 (La.App. 1st Cir.1992). After the trial court issues a ruling in the civil proceeding, the person may seek a civil appeal of the trial court's action, if he desires. See La. R.S. 44:35(C).
If the inmate is not proceeding under the Public Records Law and instead desires to seek a free copy of a district attorney's file, he should file a motion for production of the documents in the criminal proceeding, and he must demonstrate a particularized need. For the inmate requesting documents in anticipation of a collateral attack on his conviction, he cannot make a showing of particularized need absent a properly filed application for postconviction relief which sets out specific claims of constitutional errors requiring the requested documentation for support. State ex rel. Bernard v. Criminal District Court Section "J", 94-2247 (La. 4/28/95), 653 So.2d 1174. Under La.Code Crim. P. art. 822(B) (added by 1997 La. Acts No. 1321, § 1), "if at any time after sentence is imposed, the defendant seeks the production of all or any portion of the district attorney's file in a criminal proceeding, the request for production shall be presented by written motion, which shall be tried contradictorily with the district attorney." Article 822 does not apply to requests for records under the Public Records Law, and it does not establish a separate procedure by which an inmate can secure documents from the district attorney. The purpose of this portion of article 822 is to prevent district courts from ordering the production of portions of the district attorney's file without the district attorney first receiving notification of the motion. Under article 822, a contradictory hearing would not be necessary if the court merely denies the request.
Accordingly, for relator to seek review of the district attorney's refusal to provide documents, he must first institute civil proceedings at the trial court level for a writ of mandamus against the district attorney.

In State v. Leopaul , 97-563 (La.App. 3 Cir. 6/17/97), 698 So.2d 9 (alteration in original), wherein the relator sought court records free of charge, this court held:

In denying Relator's application, we apply the principles set forth in State ex rel. Bernard v. Criminal District Court, 94-2247 (La. 4/28/95), 653 So.2d 1174 and La.Code Crim.P. art. 914.1. A showing of a particularized need to obtain documents free of charge requires a defendant to show that a denial of his requested documents will deprive him of an "adequate opportunity to present [his] claims fairly." State ex rel. Bernard v. Criminal District Court , 653 So.2d at 1175 and cases cited therein. To meet this initial requirement, Relator must set forth the claims he intends to raise in his writ of review and show the requested documentation is necessary for a full and adequate review of the assigned errors. Relator has failed to make this initial showing. For this reason, we deny his application.

In the current case, in brief to this court, Relator asserts that La.Code Crim.P. arts. 843 and 930.3 provide that he is entitled to a free copy of the trial transcript plus the entire court record. He claims that he has repeatedly requested his free copies but was continuously denied.

Louisiana Code of Criminal Procedure Article 843 requires the clerk or court stenographer to record "all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel," in felony cases. Louisiana Code of Criminal Procedure Article 930.3 contains the grounds upon which post-conviction relief can be sought.

We find that Articles 843 and 930.3 do not support Relator's assertion that he is entitled to a free copy of his trial transcript and the court record. As noted above, the trial court ordered the court reporter to provide Relator with a cost estimate of production of the requested transcripts. Relator does not state whether he received the information regarding cost.

As noted above, this court in Leopaul , 698 So.2d at p. 9, stated a relator "must set forth the claims he intends to raise in his writ of review and show the requested documentation is necessary for a full and adequate review of the assigned errors." We find that Relator's September 18, 2017 request for documents did not show a particularized need for the trial transcript. Relator stated only that he needed a copy of the trial transcript and court records to adequately present his post-conviction claims; he did not specify what claims.

In brief to this court, Relator does not appear to request the District Attorney's file free of charge. In response to the September 18, 2017 request for documents, Relator indicated that he supplied the trial court with a copy of the public records request he sent to the District Attorney's Office. He requested that the trial court issue a mandamus to the District Attorney's Office to supply him with a copy of the file free of charge or at a reduced rate. In its February 2018 ruling, the trial court stated only "that file(s) is not contained in the Clerk of Court's office, but rather the District Attorney's office. Defendant should make such request to that particular office." As noted above in McKnight v. State , 742 So.2d at 895 :

If a request for public records is denied by the custodian, before seeking relief from this court, the person must first institute civil proceedings for a writ of mandamus at the trial court level. See La. R.S. 44:35(A). Should the person prevail, he should be prepared to pay the regular service fees for copies of the documents. See State ex rel. Nash v. State, 604 So.2d 1054 (La.App. 1st Cir.1992). After the trial court issues a ruling in the civil proceeding, the person may seek a civil appeal of the trial court's action, if he desires. See La. R.S. 44:35(C).

In Landis v. Moreau , 00-1157, pp. 5-6 (La. 2/21/01), 779 So.2d 691, 695 (alteration in original), the supreme court noted:

Furthermore, in Lemmon v. Connick , 590 So.2d 574 (La.1991), this court held that post-conviction relief is not "criminal litigation" within the meaning of the Public Records Act and ordered the district attorney to "produce records in its possession and not otherwise privileged." Neither party to the instant litigation challenges the holding of Lemmon . However, plaintiff originally requested "all documents and other tangible items concerning the investigation, arrest, and prosecution of Craig [and co-defendants] ..., including, without limitation, any and all records, documents, reports, analysis, notes, memoranda, audio and visual tapes, photographs, and charts." Therefore, it is essential that we review the law surrounding the provision of documents to criminal defendants since our holding in Lemmon.
First, this court has limited the number of documents an inmate can receive cost-free as of right. See State ex rel. Simmons v. State, 93-0275 (La. 12/16/94), 647 So.2d 1094. Secondly, this court has articulated a rule requiring that an inmate must have already filed an application requiring documentation for its support before he may seek cost-free copies. State ex rel. Bernard v. Criminal District Court , 94-2247 (La. 4/28/95), 653 So.2d 1174. This rule prevents the state from having to "underwrite an inmate's efforts to overturn his conviction and sentence by providing him generally with documents 'to comb the record for error.' " Id. (citations omitted). Thirdly, we have held that custodians of records must supply inmates with cost estimates for reproduction at their cost of documents without regard to the rule of Bernard . See, e.g., State ex rel. Gray v. State , 97-0447 (La. 9/5/97), 699 So.2d 74 ; Range v. Moreau , 96-1607 (La. 9/3/96), 678 So.2d 537. This rule allows an inmate to "comb the record for errors," provided he can pay for the privilege. Additionally, this court has refused to allow wide ranging discovery in post-conviction proceedings, while finding that post-conviction procedures are "unique, hybrid, and have both civil and criminal legal characteristics." State ex rel. Tassin v. Whitley , 602 So.2d 721 (La.1992).

Regarding Relator's request for a copy of the District Attorney's file, the record before this court indicates Relator provided the trial court with documentation showing he had asked the District Attorney's Office to advise him of the cost for the public records including copying, postage, and handling fees. In his September 14, 2017 request, Relator asked the trial court to issue an order of mandamus to the District Attorney's Office to supply him with the requested information. Considering the above jurisprudence, we direct the trial court to order the District Attorney's Office to provide Relator with an estimate of the costs of reproducing the public records Relator has requested and to which Relator is entitled.

WRIT GRANTED AND MADE PEREMPTORY, IN PART; WRIT DENIED, IN PART : The trial court is directed to order the District Attorney's Office to provide Relator with an estimate of the costs of reproducing the public records, pursuant to La.R.S. 44:1, et seq ., that Relator requested and to which Relator is entitled.

Relator asserts the trial court failed to rule on his "Motion to Temporarily Set Aside Supplemental Post-Conviction Filing and Order for Extension of Time to File Supplemental Post-Conviction." Information obtained from the Rapides Parish Clerk of Court indicates Relator's motion was not received by their office. Accordingly, Relator's application is denied with respect to the "Motion to Temporarily Set Aside Supplemental Post-Conviction Filing and Order for Extension of Time to File Supplemental Post-Conviction." Relator may submit his pleading to the trial court for filing and consideration.

Finally, as for Relator's requests for free copies of the trial transcript and the court records in his case, Relator did not show that a denial of his requested documents would deprive him of an adequate opportunity to present his claims fairly. Therefore, Relator failed to establish particularized need for free copies of the trial transcript and court records. In this respect, Relator's writ application is denied.

      Article 930.3 states:
      If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
      (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
      (2) The court exceeded its jurisdiction;
      (3) The conviction or sentence subjected him to double jeopardy;
      (4) The limitations on the institution of prosecution had expired;
      (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
      (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
      (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.


author: EZELL, Judge.

text:
    Tyrone DORSEY v. Sergeant Todd MOSES, et al.
    CW 18-961
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019
    Donna U. Grodner, Grodner Law Firm, 2223 Quail Run, B-1, Baton Rouge, LA 70808, (225) 769-1919, COUNSEL FOR PLAINTIFF/RESPONDENT: Tyrone Dorsey
    David E. Boraks, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, 900 Murray St., Suite B-100, Alexandria, LA 71301, (318) 487-5944, COUNSEL FOR DEFENDANTS/APPLICANTS: State of Louisiana, Department of Public Safety and Corrections, Raymond Laborde Correctional Center
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   EZELL, Judge.

Relators, the State of Louisiana, Department of Public Safety and Corrections (DOC) and Raymond Laborde Correctional Center, seek supervisory writs from the judgment of the Twelfth Judicial Court, Parish of Avoyelles, which denied Relators' exception of insufficiency of service of process.

STATEMENT OF THE CASE

This case arises out of an automobile accident which occurred on Interstate 10 in Baton Rouge, Louisiana, on November 20, 2017. Tyrone Dorsey was a passenger in a van owned by Raymond Laborde Correctional Center. Sergeant Todd Moses was driving the van. As Sergeant Moses attempted to change lanes, the van collided with the rear end of the vehicle traveling in front of it. As a result of the accident, Mr. Dorsey filed a personal injury lawsuit against Sergeant Moses, and Relators herein, the DOC and Raymond Laborde Correctional Center.

Mr. Dorsey requested service of the petition on Relators via service on the "Office of Risk Management through the Governor's Office through the Attorney General and Attorney General through Honorable Jeff Landry." Relators filed an exception of insufficiency of service of process. The trial court denied the exception, and Relators now seek review of that ruling.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La.[Code Civ.P.] arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.

INSUFFICIENCY OF SERVICE OF PROCESS

Relators assert that the trial court erred when it denied their exception of insufficiency of service of process. In support of their argument, Relators cite La.R.S. 39:1538 (emphasis added), which provided at the time suit was filed:

(1) Claims against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted in accordance with the provisions specified in this Chapter. However, immunity for discretionary acts of executive, legislative, and judicial officers within the scope of their legally defined powers shall not be abridged.
(2) The state and its agencies shall be liable for claims in the same manner and to the same extent as a private individual under like circumstances.
(3) A judgment may be settled in accordance with R.S. 39:1535(B)(6).
(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general , as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.

Relators assert that because La.R.S. 39:1538(4) uses the mandatory word "shall" and the conjunctive word "and", the statute mandates that in actions brought against the State to recover money damages in torts, service of process must be made on all of the following agents for service of process: 1) the head of the department concerned; 2) the Office of Risk Management (ORM); and 3) the Attorney General. Relator notes that La.Civ.Code art. 9 provides "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and not further interpretation may be made in search of the intent of the legislature." Relators maintain that since La.R.S. 39:1538(4) is clear and unambiguous regarding the service of process requirements for tort suits against the State, the statute should be interpreted and enforced as written. As such, Relators contend that service of process should have been made on the head of the DOC, the ORM, and the Attorney General. Relators assert that the ORM does not accept service of process "through the attorney general", as suggested by Plaintiff's service instructions. Thus, Relators argue that the attempt to serve the ORM through the Attorney General was improper.

In his opposition to the instant writ application, Mr. Dorsey asserts that the trial court properly denied the exception of insufficiency of process. Plaintiff contends that Relators take the position that the service requirements set forth in Title 39 of the Louisiana Revised Statutes, which is entitled "Public Finance," applies to this case. However, Mr. Dorsey takes the position that this case is governed by the service requirement set forth in Title 13, which is entitled, "Courts and Judicial Procedure." Louisiana Revised Statutes 13:5107(A) provides:

1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C). However, the duty of the defendant served through the attorney general to answer the suit or file other responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made.

In Burnett v. James Construction Group , 10-2608 (La. 7/1/11), 66 So.3d 482, the supreme court observed that service on the attorney general satisfies the service requirements of La.R.S. 13:5107(A). The supreme court recognized in Whitley v. State, through the Board of Supervisors of Louisiana State University Agricultural Mechanical College , 11-40 (La. 7/1/11), 66 So.3d 470, that the service of process requirements under La.R.S. 39:1538, addressing funding for the State's liabilities for money damages arising from tort suits, extend to tort claims in general and are not limited to those claims that have been litigated and a money judgment has been entered against the State or a state agency.

Accordingly, La.R.S. 39:1538(4) applies to this tort action. Mr. Dorsey claims that even if La.R.S. 39:1538(4) applies to this case, a single citation on the Attorney General constitutes proper service on the head of the department involved, the ORM, and the Attorney General. Mr. Dorsey notes that both the Attorney General and James LeBlanc, the secretary of the DOC, were issued citation and service. The supreme court has held that service at a minimum under La.R.S. 39:1538(4) is required on the head of the department concerned, the ORM, and the Attorney General. Failure to effect service on any of these parties is insufficient service of process. Therefore, Mr. Dorsey's failure to effect service on the ORM entitled the Relators to have their declinatory exception of insufficiency of service of process sustained by the trial court.

However, as noted by the supreme court, "[t]he purpose of [La.R.S.] 39:1538 is to provide notice to the AG, the ORM, and the department head that a tort action has been brought." Whitley , 66 So.3d at 481. Louisiana Revised Statutes 39:1538"does not provide for dismissal for the failure to effectuate service." Id. "Although there is a reference in [La.R.S.] 39:1538(4) to [La.R.S.] 13:5107, based on the clear language, this is a reference to who must be served and not a reference to when service must occur or to a sanction for failure to serve timely." Id. "Therefore, an objection of insufficiency of service based on [La.R.S.] 39:1538(4) can be cured by subsequent service on those entities/persons not previously served." Id. at 482.

We find that the trial court erred in denying Relators' exception of insufficiency of service of process and grant Relators' writ application. However, since the grounds for the objection, the failure to serve the ORM, can be cured by Mr. Dorsey requesting and obtaining service of process on the ORM, we remand the case to the trial court to allow Mr. Dorsey a reasonable amount of time, to be set by the trial court on remand of this matter, in which to cure the defect in service.

WRIT GRANTED AND MADE PEREMPTORY; CASE REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS AS SET FORTH IN THIS OPINION.

      Louisiana Revised Statutes 39:1538 was amended by Acts 2018, No. 627, § 1, to add an additional paragraph regarding final judgments against the State which remain unpaid.


text:
    HANOVER INSURANCE COMPANY, et al. v. RICELAND AVIATION, INC., et al
    United States Aircraft Insurance Group v. Global Tower, LLC., et al.
    18-892
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019
    Isaac H. Ryan, Deutsch Kerrigan, L.L.P., 755 Magazine Street, New Orleans, LA 70130, (504) 593-0718, COUNSEL FOR DEFENDANTS/RESPONDENTS: Global Tower, LLC, GTP Investments, LLC, GTP Infrastructure I, LLC
    Kendall J. Krielow, Block Law Firm, APLC, 422 East First Street, P. O. Box 108, Thibodaux, LA 70302, (985) 446-0418, COUNSEL FOR DEFENDANTS/APPLICANTS: United States Aircraft Insurance Group, Riceland Aviation, Inc.
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

Relators, Riceland Aviation, Inc. (Riceland) and its insurer, United States Aircraft Insurance Group (USAIG), seek writs regarding several evidentiary rulings rendered by the trial court.

STATEMENT OF THE CASE

On February 15, 2013, a plane owned by Riceland and flown by William "Billy" Precht, Jr. (Precht), crashed while spraying herbicide on a field near Jennings. The plane was a total loss, and Precht died in the crash.

Relators contend that the crash was caused by unmarked guy wires supporting a communications tower, LA-5136, owned by Global Tower, LLC; GTP Infrastructure I, LLC; and GTP Investments, LLC (collectively referred to as "GTP"), which was located adjacent to the field. Relators contend that GTP violated Jefferson Davis Parish Ordinance 5.5-107, which requires that all tower guy wires be marked with TANA markers to enable pilots to identify the location of the wires. GTP contends that the crash occurred because Precht was purposely flying very close to the tower wires in order to cover as much of the field as possible.

Hanover Insurance Company (Hanover), as the subrogee of GTP, filed suit against Relators to recover the $ 125,830.00 it paid to GTP for damages to the tower caused by the crash. USAIG filed suit against GTP; Telcom Rentals, Inc.; American Tower Corporation; Hanover; and CNA Insurance Company to recover the $ 560,000.00 in property damages and $ 9,100.00 in expenses to clean up the debris that it paid to Riceland. The two suits were consolidated.

This case has previously been before this court on Relators' writ application regarding the trial court's ruling that excluded the testimony of their expert in visibility studies, Paul Kayfetz, and his visibility study. Hanover Ins. Co. v. Riceland Aviation, Inc. , 18-783 (La.App. 3 Cir. 10/12/18), writs denied , 18-1847 (La. 1/14/19), 260 So.3d 1218 (unpublished writ decision). That writ application was denied. There are no other cases pending in this court that are related to the subject accident; however, there is a case filed by Precht's widow in the United States District Court for the Western District of Louisiana, Lake Charles Division.

Relators filed two motions in limine. The first motion sought the following pre-trial evidentiary determinations: (1) that Relators would be allowed to offer and introduce evidence of GTP's installation of TANA markers after this incident; (2) that any reference to the National Transportation Safety Board's (NTSB) investigation's conclusion and its accident identification number would be excluded; (3) that any reference to Precht's knowledge or familiarity with the tower, guy wires, or the adjacent property would be excluded; and (4) that any reference to trees/vegetation that existed around the guy wire anchors on the date of the accident but are no longer in existence would be excluded. The second motion sought to exclude the testimonies of Colonel J.F. Joseph (Colonel Joseph), GTP's aviation expert, and Robert D. Bartlett (Bartlett), GTP's expert in accident reconstruction.

The motions came for hearing on October 10, 2018. The trial court denied the motion as to numbers (1), (3), and (4) above and denied the motion to exclude the testimony of Colonel Joseph. The motion was granted as to evidence regarding the NTSB's investigation. The argument and ruling on the motion to exclude the testimony of Bartlett was postponed, and this is not included in the writ application.

A written judgment was signed on October 12, 2018. Written reasons for the rulings were issued on October 1, 2018, and October 23, 2018. Relators gave timely notice of their intent to apply for supervisory writs in open court when the rulings were issued and later in writing. The trial court set a return date of November 24, 2018. This writ application was timely filed in accordance with that order.

GTP filed an opposition to the writ application, and Relators filed a reply.

Trial in this matter is scheduled to begin on Tuesday, June 25, 2019. There are no other hearings scheduled.

ON THE MERITS

Relators argue that they are entitled to a de novo review because the trial court committed legal errors. However, the correct standard of review is abuse of discretion. "A trial court has great discretion in evidentiary matters, and its decisions regarding motions in limine are reviewed using the abuse of discretion standard." Sonnier v. State, Dept. of Trans. & Dev. , 18-73, 18-74, 18-75, p. 4 (La.App. 3 Cir. 6/6/18), 249 So.3d 51, 54.

Testimony of Colonel Joseph

GTP's aviation expert, Colonel Joseph, opines that Precht failed to maintain sufficient wing-tip clearance with the fixed and known communication tower and allowed the aircraft to collide with one of the tower's guy wires. Colonel Joseph further stated that no number of colored spheres or wire sleeves would have prevented the accident because the failure to maintain sufficient clearance was due to Precht's loss of situational awareness and his failure to maintain a proper lookout. Important to Colonel Joseph's conclusion were the facts that Precht had been flying for over ten hours at the time of the crash and that Precht had successfully avoided the guy wires on several past occasions. GTP contends that Colonel Joseph used the same methodology as that employed by the NTSB. According to GTP, Colonel Joseph used the established investigation protocols followed by the NTSB, the U.S. Marine Corps, and the Texas Department of Transportation in formulating his opinion.

Relators contend that the trial court erred in finding that Colonel Joseph is qualified to testify as an expert in the field of agriculture aviation. They concede that Colonel Joseph is an accomplished commercial airline pilot but assert that he "lacks the requisite special training, work experience, or practical knowledge in agriculture aviation to opine as an expert on matters unique to agricultural pilots, such as Mr. Precht." (emphasis in original). They contend that Colonel Joseph "has never instructed an agriculture pilot, never evaluated an agriculture pilot, never investigated an agriculture aviation accident, and never made any safety recommendation related to agriculture aviation." Relators also contend that Colonel Joseph used no scientific methodology in reaching his conclusions and that his conclusions were based only on his subjective beliefs and unsupported speculation.

Colonel Joseph reviewed reports issued by the NTSB in its investigation of the subject accident, the depositions of fact witnesses in this case, the reports of other experts rendered in this case, and regulations and maps relative to this case. An expert's opinion may be based upon data and facts not admissible in evidence if they are the type that are reasonably relied upon by experts in the subject field. La.Code Evid. art. 703. "In weighing opposing expert opinions, the trier of fact should consider education and experience of the expert in a particular science or field, reasons given in support of opinion and other evidence which supports or detracts therefrom." Arceneaux v. Daggett , 594 So.2d 1001, 1005 (La.App. 3 Cir.), writ denied , 597 So.2d 1029 (La.1992) (citation omitted).

Relators cite Duhon v. Petroleum Helicopters, Inc. , 554 So.2d 1270 (La.App. 3 Cir. 1989), writ denied , 559 So.2d 1360 (La.1990), for the proposition that a qualified pilot can be excluded from testifying as an expert in a particular field of aviation. That case involved an accident where a helicopter carrying a meter technician to an offshore platform in the Gulf of Mexico landed in the water. The plaintiff was unhurt in the landing but was pinned by the nose of the helicopter while he was attempting to board the rescue boat. In Duhon , this court found no abuse of discretion in the trial court's recognition of the defendants' witness as an expert helicopter pilot and refusal to qualify him as an expert in helicopter operations and aircraft accident reconstruction. The witness had no experience as an air taxi operator and had never attended aircraft accident investigation school.

Relators analogize the field of aviation to the fields of law and medicine which have many different disciplines. According to Relators, one cannot be an expert in all disciplines. We note, however, that "the fact that a medical doctor is not a specialist in a particular field applies only to the weight to be given to such testimony, not to its admissibility." Hunter v. Bossier Med. Ctr. , 31,026, p. 14 (La.App. 2 Cir. 9/25/98), 718 So.2d 636, 644. "[W]here medical disciplines overlap, it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines." Pertuit v. Jefferson Parish Hosp. Serv. Dist. No. 2 , 14-752, p. 6 (La.App. 5 Cir. 5/14/15), 170 So.3d 1106, 1110, writ denied , 15-1176 (La. 9/18/15), 178 So.3d 152.

GTP contends that Precht struck a known and fixed obstruction in broad daylight following numerous repetitive and successful passes and that Relators have failed to show "that the instant accident involves some element unique to agriculture aviation that Colonel Joseph is unqualified to address." For example, GTP points out that Relators have not asserted that there is some characteristic of the subject aircraft, a Dromader M-18, or with the chemicals that Precht was spraying, with which Colonel Joseph must be familiar in order to render an expert opinion. According to GTP, this "case involves a professional pilot performing a repetitive duty and striking a known hazard at a low altitude, which fits squarely within the expertise of Col[onel] Joseph." For example, GTP points out that Colonel Joseph was a Low Altitude Tactics Instructor (LATI) in the Marine Corps who specifically trained pilots in the procedures and strategies for safe operation of aircraft at low altitudes. Colonel Joseph also wrote the Low Level Tactics Manual-KC-130 for the 4th Marine Aircraft Wing. GTP argues that "Colonel Joseph's experience in the round-the-clock pace of military flight operations gives him an excellent real world perspective on the dawn-to-dusk operations engaged in by Precht at the time of the accident[ ] and the techniques that can be utilized to mitigate the risks posed by fatigue and complacency."

"A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and this includes the determination of how much and what kind of education and/or training adequately qualify an individual as an expert." Tadlock v. Taylor , 02-712, p. 4 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 26, writ denied , 03-3265 (La. 3/12/04), 869 So.2d 819. "A district court's decision to qualify an expert will not be overturned absent an abuse of discretion." Cheairs v. State ex rel. Dept. of Trans. & Dev. , 03-680, p. 6 (La. 12/3/03), 861 So.2d 536, 541. An expert's testimony is proper when:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ], and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Id . at 542, (quoting City of Tuscaloosa v. Harcros Chem., Inc. , 158 F.3d 548, 561 (11th Cir. 1998), cert. denied , 528 U.S. 812, 120 S.Ct. 309, 145 L.Ed.2d 42, and cert. denied , 528 U.S. 812, 120 S.Ct. 47, 145 L.Ed.2d 42 (1999) ).

In its written reasons for ruling, the trial court recognized Colonel Joseph as a qualified expert. By Relators' own statement, Colonel Joseph was proffered as an aviation expert. The trial court went on to state that Relators would be allowed to cross examine Colonel Joseph regarding their concerns about his expert testimony.

Relators have retained an agriculture aviation expert, Lemuel Shattuck (Shattuck), who allegedly has over thirty years of experience piloting an aircraft nearly identical to the one involved in the subject accident for the purpose of applying pesticides to fields.

Based on these facts and the cases cited above, we find that Relators have not shown that the trial court abused its discretion in denying its motion in limine to exclude the testimony of Colonel Joseph. Accordingly, the writ application is denied as to this issue.

Subsequent Remedial Measures

"In general, remedial measures taken after an incident of negligent conduct are not admissible in evidence because such evidence would discourage people from taking steps to prevent future harm." Toups v. Sears, Roebuck & Co., Inc. , 507 So.2d 809, 816 (La.1987).

The prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. The prohibition covers only measures taken after an event, such as post-accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal of an employee charged with causing an accident, changes in regulations, and changes in labels or instructions.

N. Assurance Co. v. Louisiana Power & Light Co. , 580 So.2d 351, 357 (La.1991) (citations omitted).

Relators contend that when GTP made repairs to the tower after this accident, GTP installed two TANA markers on each the tower's three outermost guy wires. Relators want to introduce photographs of the tower since the markers were installed and a post-construction inspection report from Engineered Tower Solutions, PLLC (ETS), which is dated October 13, 2013, eight months after the accident. The report shows that the locations of guy line wire markers were changed per GTP's instructions. Relators contend that such evidence is admissible under La.Code Evid. art. 407 even though evidence of subsequent remedial measures is generally precluded to prove negligence or culpability. Relators contend that, as allowed by La.Code Evid. art. 407, they will use this evidence to: (1) prove feasibility of precautionary measures since GTP and its experts argue that it was not feasible to install the TANA markers; (2) impeach the credibility of GTP and its experts; and (3) prove that GTP had authority and control over the tower. Relators concede, however, that "GTP's ownership and control of the tower is undisputed."

Relators argue that in taking the position that the presence of the TANA markers on the guy wires would not have prevented the accident, GTP has put the feasibility of putting marker balls directly at issue. GTP, on the other hand, argues that: (1) it has never denied that it owns the tower or that it has custody and garde over it; and (2) it has never asserted that adding marker balls was not feasible in that they were impossible to implement or in that they were unreasonably expensive. Therefore, according to GTP, the only reason that Relators want to introduce this evidence is to imply fault to GTP. GTP's opposition does not discuss the use of the evidence to impeach the credibility of its expert witnesses.

In denying Relators' motion in limine with regard to subsequent remedial measures, the trial court found that none of the purposes for which such evidence could be admitted under La.Code Evid. art. 407 existed in this case. The trial court further found that such evidence would create "an unavoidable and undue risk that the jury would imply culpability for the accident" solely because of the addition of the TANA markers.

Impeachment evidence on the issue of credibility is subject to a determination as to whether its probative value is "substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice." La.Code Evid. art. 607(D).

Relators contend that GTP violated Jefferson Davis Parish Ordinance 5.5-107 which requires that all tower guy wires be marked with TANA markers. After the accident, GTP installed the TANA markers. Relators contend that GTP cannot have it both ways in arguing that it did not have to comply with the ordinance but add the marker balls in case it did have to comply. GTP argued that the federal regulations regarding the marking of obstructions to aviation preempted the parish ordinance. Relators presented no argument to show how this evidence is probative to the issue of GTP's lack of compliance with the ordinance at the time of this accident.

"Evidence of subsequent remedial measures is not considered prejudicial where it relates to the alleged contributory negligence of plaintiff, and where the trial court is careful to point out to the jury that the evidence is not to bear on the general negligence of the defendant." Scurlock Marine, Inc. v. W.W. Patterson Co. , 95-528, 1997 WL 573405 (E.D. La. 1997) (unreported decision). Relators cite Thornton v. Nat'l Railroad Passenger Corp. , 00-2604 (La.App. 4 Cir. 11/14/01), 802 So.2d 816, writ denied , 01-3282 (La. 3/15/02), 811 So.2d 907. Thorton is of little value in deciding the case at bar because the court in Thorton actually found that the actions taken by the defendants in recommending alternative ways to perform the task that the plaintiff was undertaking when he was injured did not constitute subsequent remedial measures. The court in Thorton did state that if such actions were considered to be subsequent remedial measures, it agreed with the plaintiff's alternative argument that evidence thereof would have been admissible to attack credibility.

In Tilden v. Blanca, LLC , 12-1311 (La.App. 4 Cir. 6/26/13), 119 So.3d 962, the plaintiff slipped and fell in a restaurant and sought to impeach the testimony of the restaurant's owner by introducing evidence that the restaurant placed additional rugs on the floor as a safety measure. The court upheld the trial court's exclusion of the evidence finding that there were no discrepancies between the owner's deposition testimony and his trial testimony. The court further stated that "it saw no evidence to support plaintiff's claim that the placement of additional rugs was an established safety precaution used by Tommy's before [plaintiff]'s fall." Id . at 965

In Rimkus v. Northwest Colorado Ski Corp. , 706 F.2d 1060 (10th Cir. 1983), the court upheld the introduction of evidence that the day after the plaintiff's skiing accident, the lodge posted bamboo poles to mark a rock outcropping. It was used to rebut the ski instructor's testimony that it had never crossed his mind that the plaintiff would not be able to see and avoid the condition. The court recognized that the evidence was received to show that the plaintiff was not guilty of contributory negligence. But the court also noted that "[t]he trial court might well have chosen to exclude the evidence. The judge was fully aware of the problem. He weighed the countervailing contentions with care." Id . at 1066.

Colonel Joseph testified that the presence of TANA markers would not have prevented this accident because the loss of situational awareness overcomes any kind of marking. Relators claim that the unmarked guy wires caused and/or contributed to the accident and state that GTP claims that Precht's actions caused the loss of the aircraft such that causation is directly at issue. While these assertions may be true, Relators have not shown how the evidence that the TANA markers were installed after the accident impeaches the testimony of Colonel Joseph or proves that Precht's actions did not cause or contribute to the accident.

For the foregoing reasons, we find that the trial court did not abuse its discretion in ruling that evidence that GTP installed TANA markers after the accident is inadmissible and that the writ application should be denied in this respect.

Precht's Knowledge of and Familiarity with the Area

Relators contend that the trial court erred in refusing to exclude any reference to Precht's familiarity with the tower, the tower's guy wires, or the field where the accident occurred. According to Relators, they must prove that the unmarked guy wires presented an unreasonable risk of harm. An unreasonable risk of harm is one that is "of such a nature to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances." Rose v. Liberty Mut. Fire Ins. Co. , 15-1184, p. 2 (La.App. 3 Cir. 5/18/16), 192 So.3d 881, 884. If the condition is one that is open and obvious, it does not present an unreasonable risk of harm. McCoy v. Town of Rosepine , 15-898 (La.App. 3 Cir. 3/9/16), 187 So.3d 562. "If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous. Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard v. State ex rel. Office of State Bldg. , 12-1238, p. 17 (La. 4/5/13), 113 So.3d 175, 188 (citations omitted). Based on this, Relators assert that Precht's familiarity with the tower is irrelevant to the question of whether the defect created an unreasonable risk of harm.

GTP asserts that the tower is 500 feet tall, is painted red and white, has flashing lights affixed to it, and has been in existence and marked on aviator charts for decades.

The accident allegedly occurred on Precht's third pass. Relators' own agriculture aviation expert, Shattuck, admitted that Precht "was certainly aware of where that wire was." GTP contends that the evidence is undisputed that Precht knew where the subject guy wires were located.

In denying this motion, the trial court noted that it found "that all towers are a danger to any and all pilots and that the guy wires are apparent and obvious." Realtors contend that these findings by the trial court encroach on the jury's function as fact finder, are fatally flawed, and are inconsistent with Broussard , 113 So.3d 175.

Broussard , 113 So.3d 175, does not mandate exclusion of evidence regarding Precht's familiarity with the tower or the location of the guy wires. In that case, the plaintiff was a delivery person who injured himself while attempting to maneuver a loaded dolly into an elevator that was misaligned with the lobby floor in a State-owned building. There was testimony from other persons who were aware of the misalignment and evidence of other persons (some of whom worked in the building) who tripped or fell because they did not notice the misalignment. The court also noted that "[t]here is no dispute that Broussard was aware of the offset after it impeded his initial attempt to push the dolly onto the elevator." Id . at 189. While disagreeing with the State's contention that Broussard's awareness of the misalignment should prevent his recovery of damages, the court found that the evidence presented in the case provided support for the jury's conclusion that the misalignment was not open and obvious to all that encountered it, even though it was apparent to the plaintiff.

For these reasons, we find that the trial court did not abuse its discretion in refusing to exclude evidence of Precht's knowledge of the tower and the guy wires. Accordingly, the writ application is denied with respect to this issue.

Evidence Regarding Trees at the Guy Wire Anchors at the time of the Accident

Relators also sought to exclude any reference to trees or vegetation at the base of the guy wires at the time of the accident. These trees were removed by GTP following the accident.

Relators contend that evidence of the existence of the trees and whether they were used as topographical features for navigation is irrelevant to the issue of whether the unmarked guy wires presented an unreasonably dangerous condition and that the rationale of Broussard , 113 So.3d 175, mandates the exclusion of this evidence.

GTP contends that there was a twenty-five to thirty foot tree growing at the base of the guy wire that was struck by Precht and that Relators' own expert, Shattuck, admitted that trees, shrubs, and other landmarks are typically used by crop-dusting pilots to create a "footprint" of their areas of operations.

The trial court denied this motion for the same reasons it denied the motion to exclude evidence of Precht's familiarity with the tower.

Again, we find that Broussard , 113 So.3d 175, does not mandate exclusion of this evidence. In Broussard , 113 So.3d at 191 (citations omitted), the court stated: "each case involving an unreasonable risk of harm analysis must be judged under its own unique set of facts and circumstances.... [E]ach defect is equally unique, requiring the fact-finder to place more or less weight on different considerations depending on the specific defect under consideration." Moreover, the court went on to state that "the inherently dangerous nature of the plaintiff's activity may persuade the trier-of-fact to conclude a defective logging road, for example, is not unreasonably dangerous." Id .

For this reason, we deny the writ application as to this issue, finding no abuse of discretion in the trial court' ruling.

WRIT DENIED. We find no abuse of discretion in the trial court's rulings.

      TANA markers are the orange spheres commonly seen on power lines and guy wires.

      Colonel Joseph is the Deputy Director of Aviation, Chief Pilot, and Director of Flight Services for the Texas Department of Transportation and is a senior member of the Aviation Accident Mishap Board.

      Relators concede that in its written reasons for ruling, the trial court did not identify the particular field in which Colonel Joseph was qualified. GTP points out that Relators did not attach the transcript of the hearing.

      Duhon , 554 So.2d 1270, was overruled on other grounds by Green v. Industrial Helicopters, Inc. , 593 So.2d 634 (La.1992).

      "The feasibility of performing precautionary measures is not a central issue in this case, nor was it controverted, it is therefore of little relevance." Burk v. Illinois Cent. Gulf R. Co. , 529 So.2d 515, 524 (La.App. 1 Cir.), writ denied , 532 So.2d 179 (La.1988). The court went on to state that any relevance would be substantially outweighed by the risk that the evidence would be used by the jury to infer that the defendant was negligent. Id .

      Relators argue that the trial court did not give any analysis of the facts or of the balancing of the prejudicial effect of admitting the evidence against its probative value. While this is true, that the transcript of the hearing is not provided such that it is unknown whether such an analysis was performed by the trial court.


author: SAVOIE, Judge.

text:
    Crystal GROSSIE v. MGM PROPERTIES, INC., et al.
    18-224
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019
    Matthew J. Hill, Jr., Attorney at Law, 711 West Pinhook Road, Lafayette, Louisiana 70503, (337) 989-8100, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Fire & Casualty Co., MGM Properties, Inc.
    Norris J. Greenhouse, Attorney at Law, Post Office Box 444, Marksville, Louisiana 71351, (318) 253-6394, COUNSEL FOR PLAINTIFF/APPELLANT: Crystal Grossie
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Plaintiff Crystal Grossie appeals the ruling of the trial court, granting Defendant State Farm Fire and Casualty Company's (State Farm) Motion for Summary Judgment and dismissing Grossie's claims. For the following reasons, we affirm.

FACTS

On the afternoon of February 21, 2012, Crystal Grossie was walking to a Mardi Gras parade in Lafayette, Louisiana. On the way, she passed through a property located at 1015 St. John Street and owned by Defendant MGM Properties, Inc. While on the property, Grossie tripped and fell on a piece of metal that was driven into the ground adjacent to the walkway. In her Petition for Damages filed January 15, 2013, she claimed to have sustained damages to her chin, jaw, hip, neck and back, as well as fracturing several teeth. Grossie named as Defendants MGM Properties, Inc., the owner of the property, and its property insurer State Farm. Grossie subsequently filed a Partial Judgment of Dismissal which dismissed MGM Properties, Inc., leaving State Farm as the only Defendant.

State Farm filed a Motion for Summary Judgment on December 29, 2015, alleging a lack of evidence regarding: (1) whether the condition presented an unreasonable risk of injury; and (2) whether MGM Properties, Inc. and/or State Farm had the requisite prior knowledge of the condition. After a hearing on the motion held October 16, 2017, the trial court granted State Farm's Motion for Summary Judgment and dismissed Grossie's claims with prejudice. Grossie now appeals.

ASSIGNMENTS OF ERROR

1. The trial court was manifestly erroneous in failing to submit on the record or in writing its [reasons for granting] Appellees/Defendants' Motion for Summary Judgment.

2. The trial court committed manifest error in granting the Appellee/Defendants' Motion for Summary Judgement stating lawn timber and metal stripping are not hazardous.

3. The trial court erred as a matter of law as there are genuine issue of material facts in this case that should be decided by the trier of fact as this case was scheduled as a jury trial.

LAW AND DISCUSSION

I. Standard of Review

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Civ.Code art. 966(D)(1).

"Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416.

II. Assignment of Error Number One

Grossie first argues that the trial judge failed to state on the record or in writing the reasons for ruling. Louisiana Code of Civil Procedure Article 966(C)(4) governs the procedural rules for motions for summary judgment and states, in pertinent part: "In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion."

A review of the hearing transcript finds the following discussion:

MR. GREENHOUSE: But if the Court wants us to address anything, I would be happy to address it.
THE COURT: Not for me, with the facts. You know, we're talking about wood landscaping as well as metal spike, as to whether or not that was the hazard.
MR. HILL: Whether that is the defect.
THE COURT: So, all right. I'm going to grant MGM' motion for judgment, and State Farm. Okay.
MR. HILL: Thank you, your honor. I did not prepare a judgment because we didn't know we were going to submit the -
THE COURT: Prepare one and get him to approve it as to form.

The 2015 Comments to La.Code Civ.P. art. 966 state:

(i) Subparagraph (C)(4) is new. The court shall state either on the record or in writing the reasons for granting or denying the motion. Nevertheless, the court does not have to address every reason or argument, and the form and detail of the reasons are left to the discretion of the court.

While abbreviated, the reasons for the trial court's grant of the motion for summary judgment can be determined from the transcript. The trial judge clearly finds that the wood landscaping and the metal spike were not defects under the applicable law. As stated in the comments, the trial judge need not address every reason or argument put forth by counsel. As such, we find no merit in this assignment of error.

III. Assignments of Error Number Two and Three

Plaintiff next argues that the trial court erred in finding the wood landscaping and metal stripping were not hazardous defects and that there are genuine issues of material fact that exist in this case. The law applicable to this claim is found in La.Civ.Code art. 2317.1, which states:

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

Under La.Civ.Code art. 2317.1, Plaintiff has the burden to prove the following:

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

Riggs v. Opelousas Gen. Hosp. Trust Authority , 08-591, p. 3 (La.App. Cir. 11/5/08), 997 So.2d 814, 816-17. Under La.Civ.Code art. 2317.1, a defect is a condition creating an "unreasonable risk of harm." Moore v. Oak MeadowsApartments , 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594 (citation omitted). "Not every defect gives rise to liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances." Ruschel v. St. Amant , 11-78, p. 6 (La.App. 5 Cir. 5/24/11), 66 So.3d 1149, 1153 (quoting Jeansonne v. South Cent. Bell Telephone Co. , 08-568, pp. 9-10 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 619 ).

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362 ; Johnson, supra .
There are several factors that may be considered in determining whether a hazard presents an unreasonable risk of harm. The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous.
Johnson, supra ; (citations omitted). The accident history of the defect is also a relevant consideration in the unreasonable risk evaluation. Reed, supra ; Boyle v. Board of Sup'rs, Louisiana State University, 96-1158 (La. 1/14/97), 685 So.2d 1080.

Moore , 997 So.2d at 598-99. "[I]n a trip and fall case, the duty is not solely with the landowner." Babino v. Jefferson Transit , 12-468, p. 6 (La.App. 5 Cir. 2/21/13), 110 So.3d 1123, 1126. "A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear." Id. (citing Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228 ).

[W]hether a defect presents an unreasonable risk of harm "is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts." Tillman v. Johnson, 612 So.2d 70 (La.1993). Further, causation is a question of fact. Nevertheless, to overrule a grant of summary judgment, we must find a material fact still at issue. La. C.C.P. art. 966. A material fact is one whose existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.

Id. at 1126-27.

State Farm attached, in support of its' motion, the affidavit of Kevin C. Vanderbrook, a licensed professional engineer in the state of Louisiana. After observing the incident location, he opined that "the sidewalk on the east side of the subject property and yard in front of the subject building do not contain any unreasonably hazardous conditions or unsafe maintenance issues. The yard and edging are well maintained and are open and obvious to persons exercising a reasonable amount of care." Also included in the record are numerous photographs of the area in question that clearly show the metal edging, sidewalk, and yard of the building.

Upon a review of the evidence presented and the applicable law, we find no error in the trial court's ruling. The metal edging was open and obvious, and that fact, coupled with Ms. Grossie's duty to observe that the pathway is clear, precludes it from rising to the level of presenting an unreasonable risk of harm. We find that Crystal Grossie, as the party with the burden of proof at trial, has failed to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial. Therefore, summary judgment was appropriate in this matter. In addition, we find no genuine issues of material fact that exist in this case. Assignments of error number two and three lack merit.

DECREE

The trial court's judgment on Defendant State Farm Fire and Casualty Company's Motion for Summary Judgment, granting the motion and dismissing Plaintiff Crystal Grossie's claims, is affirmed. All costs associated with the appeal are assessed to Crystal Grossie.

AFFIRMED.

Cooks, J., dissents and assigns reasons.

COOKS, J., dissents.

I respectfully dissent from the majority opinion affirming the trial court's grant of summary judgment in this matter. I have reviewed the record and find the trial court failed to follow the express dictates of La.Code Civ.P. art 966(C)(4) and "state on the record or in writing the reasons for granting or denying the motion." While, as the majority notes, it is not necessary for the trial court to address every reason or argument put forth by counsel, it still must state its reasons for granting or denying the motion. A review of the record shows the trial court did not do so. It is not this court's function to assume what the trial court's reasoning is in reaching its decision and to provide those reasons for the first time here on appeal. The trial court is required to state it's reasons for ruling, either orally or in writing in the record, to comply with La.Code Civ.P. art 966(C)(4). As that was not done, I believe we must reverse the grant of summary judgment and remand for further proceedings.

The disputed issue in this case is not whether the landscaping and metal edging were hazardous defects, but rather were they open and obvious to a pedestrian exercising reasonable care. There are genuine issues of material fact on this issue which should have precluded summary judgment from being granted in this case. The majority relies on the affidavit of Kevin Vanderbrook, who opined the sidewalk area in question did not contain any unreasonably hazardous conditions or unsafe maintenance issues and was open and obvious to persons exercising reasonable care. Plaintiff notes Mr. Vanderbrook did not examine and view the property in question until nearly five years after the accident. Plaintiff maintained the metal stripping which caused her to trip was obscured underneath clover and high grass. The photographs taken by Mr. Vanderbrook show no indication of any clover or high grass in the area of the metal stripping. While those pictures sufficiently show the area in question, nearly five years after the accident, was well maintained and open and obvious to persons exercising reasonable care, it does not establish the condition of the property on the date the accident occurred. For this reason, as well, I find summary judgment should not have been granted in this matter.


author: GREMILLION, Judge.

text:
    Ed STONE, et al. v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, et al.
    18-763 18-547
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Steven B. Rabalais, Melvin A. Eiden, Blake T. Couvillion, Rabalais & Hebert, 701 Robley Drive, Suite 210, Lafayette, LA 70503, (337) 981-0309, COUNSEL FOR DEFENDANT/APPELLANT: Sentry Select Insurance Company
    L. Lyle Parker, Christina S. Slay, Elizabeth B. Carr, Bolen, Parker, Brenner, Lee & Engelsman, APLC, P.O. Box 11590, Alexandria, LA 71315-1590, (318) 445-8236, COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Property and Casualty Insurance Company, Steven Card
    Barry A. Roach, Larry A. Roach, Inc., 2917 Ryan St., Lake Charles, LA 70601, (337) 433-8504, COUNSEL FOR PLAINTIFF/APPELLEE: Ed Stone
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   GREMILLION, Judge.

For the reasons set forth in Stone v. Allstate Property and Casualty Insurance Company , 18-547 (La.App. 3 Cir. 3/7/19), --- So.3d ----, 2019 WL 1620341, the judgment of the trial court in favor of plaintiff/appellee, Ed Stone, and against defendant/appellant, Sentry Select Insurance Company, is reversed. All costs of this proceeding are taxed to plaintiff/appellee, Ed Stone.

REVERSED AND RENDERED.

THIBODEAUX, Chief Judge, concurs in the result.


text:
    Chad EAST and Crystal East v. John J. CAPDEVIELLE, et al.
    18-444
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
   Billy E. Loftin, Jr., Brian M. Bradford, Loftin, Cain & LeBlanc, L.L.C., 113 Dr. Michael DeBakey Drive, Lake Charles, LA 70601 (337) 310-4300, COUNSEL FOR PLAINTIFFS/APPELLEES: Chad East, Crystal East

Tammy L. Clary, Quilling, Selander, Lownds, Winslett & Moser, P.C., 2001 Bryan Street, Suite 1800, Dallas, TX 75201, (214) 880-1869, COUNSEL FOR DEFENDANT/APPELLEE: RLI Insurance Company

Jennifer A. Fiore, Dunlap Fiore, LLC, 6700 Jefferson Highway, Building # 2, Baton Rouge, LA 70806, (225) 282-0666, COUNSEL FOR DEFENDANTS/APPELLANTS: John J. Capdevielle, Patricia Capdevielle, John J. Capdevielle, II, Architect, LLC

H. Minor Pipes, III, John W. Joyce, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., 909 Poydras Street, Suite 2400, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLANT: Ohio Security Insurance Company

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.

SAUNDERS, Judge.

The issue presented in this case is whether the evidence introduced by Plaintiffs against an insurance carrier to confirm a default judgment was sufficient to establish a prima facie showing of liability coverage. For the reasons that follow, we reverse the confirmation of default and vacate the judgment against the insurance carrier.

FACTUAL AND PROCEDURAL HISTORY:

In this breach of contract case, Appellees, Chad and Crystal East, ("Easts") sued their architect, Appellee, John J. Capdevielle, II, his firm, and his wife, for failing to produce appropriate architectural plans that they contend they paid for. The Easts also sued Ohio Security Insurance Company ("OSIC"), which allegedly issued a commercial general liability policy to the architect, and RLI Insurance Company, which allegedly issued a professional liability policy to the architect and his firm. OSIC did not file responsive pleadings.

On March 6, 2018, the Easts obtained a preliminary default against OSIC. The default was confirmed on March 13, 2018. In confirming the default, the Easts submitted proof of insurance, rather than the OSIC policy, to support a prima facie showing of liability coverage. It is from this judgment that OSIC appeals.

DISCUSSION OF THE MERITS:

In its sole assignment of error, OSIC argues that the trial court erred in confirming the default judgment because the Easts did not establish their prima facie case with respect to insurance coverage because they did not submit the OSIC policy into evidence at the confirmation hearing. We agree.

An appellate court reviews default judgments under the manifest error standard of review. Arias v. Stolthaven New Orleans, L.L.C. , 08-1111 (La. 5/5/09), 9 So.3d 815. In performing that review, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Id.

A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment. See La.Code Civ.P. art. 1702(A). When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto containing facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. See La.Code Civ.P. art. 1702(B)(2).

In, Arias , 9 So.3d at 819-20 (citations omitted), the Louisiana Supreme Court noted:

[D]efendant is generally required to file an answer within fifteen (15) days after service of citation upon him.... [W]hen the defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.
.... [A] default judgment ... may be obtained by oral motion in open court or by written motion ....
....
Confirmation of a default judgment ... requires, with admissible evidence, "proof of the demand sufficient to establish a prima facie case." ....
....
There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Finally, a defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal.

The Louisiana Supreme Court observed in Arias that "when an obligation is based on a writing, prima facie proof of the obligation requires introduction of the writing into evidence." 9 So.3d at 822. In Arias and other cases, the Louisiana Supreme Court and lower courts have held that the failure to offer the operative insurance policy into evidence prevents a plaintiff from establishing a prima facie case of coverage and precludes entry of a default judgment against an insurer. See Arias , 9 So.3d 815. Similarly, Northshore Regional Med. Center, L.L.C. v. Dill , 12-850 (La.App. 1 Cir. 3/22/13), 115 So.3d 475, writ denied , 13-866 (La. 5/31/13), 118 So.3d 396, Landry v. Boissenin , 08-1240 (La.App. 1 Cir. 12/23/08), 4 So.3d 872, and Nelson v. Merrick , 06-2381 (La.App. 1 Cir. 9/19/07), 970 So.2d 1019, all hold that the operative insurance policy is an essential element of a plaintiff's prima facie case to confirm a default judgment against an insurance company.

Here, the Easts bore the burden to prove coverage under the OSIC policy as a matter of law. See, e.g., Ho v. State Farm Mut. Auto Ins. Co. , 03-480, p. 4 (La.App. 3 Cir. 12/31/03), 862 So.2d 1278, 1281, "Louisiana law requires plaintiff to prove its claim to the satisfaction of the court, and places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage."

Importantly, at the confirmation hearing, the Easts submitted proof of insurance, rather than the OSIC policy. Proof of insurance (POI) is generally any type of documentation that a person can provide to another individual indicating that the person has valid insurance with an insurance company. The most common form of a POI is a paper card provided by the insurance company listing policy information and effective dates. OSIC contends that the evidence submitted by the Easts neither describes the policy terms nor proves any connection between the facts and insurance coverage. OSIC further contends that pursuant to Louisiana Supreme Court precedent, "proof of insurance" is insufficient evidence to support a default judgment on coverage.

Contrary to OSIC's assertions, the Easts argue that an insurance policy is not required to be introduced into evidence for the trial court to properly confirm a default judgment. In support of their argument the Easts cite Swinea v. Humana, Inc. , 51,179 (La.App. 2 Cir. 2/15/17), 215 So.3d 897. Swinea acknowledges the "line of jurisprudence" holding that the introduction of the insurance policy is an "essential element of plaintiff's prima facie case and that no valid default judgment could be rendered without introducing it into evidence[,]" with the exception of a "unique set of facts", which include (1) correspondence admitting coverage; (2) proof of prior payment; and (3) documentation quoting relevant policy provisions. Id. at 905. Relying on Swinea , the Easts assert that the evidence introduced herein, in lieu of the insurance contract, was sufficient to establish a prima facia case of coverage and liability by OSIC for their damages in the absence of the admission of the insurance policy itself.

OSIC counterargues that the "unique set of facts" present in Swinea , are undeniably not present in this case. OSIC maintains that in Swinea , the "unique set of facts" taken together with other evidence "created a "factual pattern" with "many extensive admissions" that supported a deviation from the settled rule. Swinea , Id. at 906. Thus, Swinea is distinguishable from the instant case.

In the case before us, the record does not reflect that the OSIC policy was submitted into evidence, as is required to support a prima facie showing of liability coverage. Moreover, the default record does not contain any of the unique facts found in Swinea : correspondence admitting coverage, proof of prior payment, or documentation quoting relevant policy provisions. Rather, the record contains only a single certificate of insurance, which itself warns that it "CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER," and that it is subject to the "TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES." Notably, the rule in Arias mandates that in default proceedings, "The insurance policy must be included in the submission of evidence to support a prima facie showing of liability coverage[.]" Arias , 9 So.3d at 822. Given the above, it was improper for the trial court to have confirmed a default judgment against OSIC.

CONCLUSION:

Ohio Security Insurance Company asserts one assignment of error, that the trial court erroneously confirmed the default against it. We find merit to the assertion that confirmation of the default was improper given the record before us. Accordingly, we reverse the trial court's confirmation of default against OSIC and vacate the judgment. Costs of this proceeding is assessed to Chad and Crystal East.

REVERSED AND VACATED.