text:
    Debra E. Lewis, Wife of and Anthony P. LEWIS v. STATE FARM MUTUAL AUTOMOBILE LIABILITY INSURANCE COMPANY.
    No. 2009 CA 1242.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Debra E. Lewis, Anthony P. Lewis, Thi-bodaux, LA, in Proper Persons.
    James R. Dagate, Houma, LA, for Defendant-Appellee, State Farm Mutual Automobile Insurance Company.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2In this appeal, plaintiffs-appellants, Debra E. Lewis and Anthony P. Lewis, claim the responses to jury interrogatories were inconsistent with the verdict returned by the jury. For the reasons that follow, we hereby affirm.

This case arises out of a motor vehicle accident that occurred on December 9, 2005, at the intersection of West Park Avenue and Estate Drive in Terrebonne Parish, Louisiana. The record reveals that on the aforementioned date, the vehicle operated by Mrs. Lewis was rear-ended by a vehicle driven by Ernest J. Liner, IV, as Mrs. Lewis attempted to execute a right turn from West Park Avenue onto Estate Drive. At the time of this accident, Mr. Liner was insured by a policy of insurance issued by Safeway Insurance Company (“Safeway”), with limits of $10,000.00 per person, $20,000.00 per accident. In addition, State Farm Mutual Automobile Insurance Company (“State Farm”) provided uninsured/underinsured motorist insurance coverage to Mrs. Lewis.

Thereafter, Mr. and Mrs. Lewis settled their claims with Safeway, the liability insurer of Mr. Liner, for its liability limits of $10,000.00. On December 4, 2006, Mr. and Mrs. Lewis instituted the present litigation against State Farm alleging personal injuries, loss of consortium, and an arbitrary and capricious failure to pay a claim. Prior to, and following the institution of this litigation, State Farm, in its capacity as Mrs. Lewis’ uninsured motorist carrier, made two separate tenders to Mrs. Lewis in the amounts of $7,500.00 and $20,000.00 respectively.

A jury trial was held on April 21, 2008 through April 23, 2008. On April 23, 2008, the jury returned its verdict, and pursuant thereto, the trial court entered judgment on May 2, 2008, in favor of State Farm dismissing Mr. and Mrs. Lewis’ claims with prejudice at their costs.

Subsequently, on June 5, 2008, Mr. and Mrs. Lewis filed a motion seeking a new trial and, in the alternative, a motion for judgment notwithstanding the verdict (“JNOV”). LThe trial court on July 23, 2008, dismissed the post-trial motion as untimely, but this court, in a 3-2 vote on September 22, 2008, reversed the trial court’s judgment and ordered that the post-trial motion be considered on its merits.

Following a hearing on Mr. and Mrs. Lewis’ motion, the trial court took the matter under advisement. In a judgment signed in chambers on December 29, 2008, the trial court denied the motion for new trial stating, “[cjontrary to the allegation of [Mr. and Mrs. Lewis] the jury responses are not inconsistent in light of the fact that the jury was clearly aware that Mrs. Lewis had received $34,040.21 prior to trial as compensation for her injuries, including $27,500.00 from State Farm.” The trial court’s judgment further denied Mr. and Mrs. Lewis’ alternative motion for JNOV, stating “the jury in this case apparently believed that the sum of $34,040.21 received by Mrs. Lewis was adequate to compensate her for any damages she suffered and that she should not receive any additional sums therefor. This court cannot say that reasonable persons would have arrived at a contrary verdict.” It is from this judgment that Mr. and Mrs. Lewis have appealed.

On appeal, Mr. and Mrs. Lewis claim the jury’s answers to the interrogatories posed on the verdict form were inconsistent with the general verdict returned by the jury. Mr. and Mrs. Lewis further claim that the trial court improperly denied their motion for new trial, or in the alternative, for JNOV, and failed to find State Farm had been arbitrary and capricious in refusing to tender Mrs. Lewis a reasonable amount of damages. State Farm responds with the argument that the jury in the trial court, after hearing the evidence presented and being properly informed of the law, made the reasonable and correct determination that Mrs. Lewis had been adequately compensated by the $37,500.00 she received for the injuries she sustained in the automobile accident.

Louisiana Code of Civil Procedure article 1811 provides that a motion for new trial may be joined with a JNOV request, or a new trial may be prayed for in the alternative. La.Code Civ. P. art. 1811 A(2).

\ Motion for New Trial

Pursuant to La.Code Civ. P. art. 1972, a new trial shall be granted, upon contradictory motion of any party, (1) when the verdict or judgment appears clearly contrary to the law and the evidence; or (2) when the party has discovered, since the trial, evidence important to the cause, which said party could not, with due diligence, have obtained before or during the trial. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 9 (La.11/28/00), 774 So.2d 84, 92-93. In addition, a discretionary ground for a new trial is set forth in Article 1973, which authorizes the court to grant a new trial in any case if there is good ground for it. Guidry v. Millers Cas. Ins. Co., 01-0001, p. 4 (La.App. 1 Cir. 6/21/02), 822 So.2d 675, 680.

The motion for a new trial requires a less stringent test than for a JNOV as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Whether to grant a new trial requires a discretionary balancing of many factors. Davis, 00-0445 at p. 10, 774 So.2d at 93. Unlike the standard applicable to a motion for JNOV, the trial court may evaluate evidence without favoring any party and draw its own inferences and conclusions. Perhaps the significant authority is the ability to assess the credibility of witnesses when determining whether to grant or deny the motion for a new trial. Wyatt v. Red Stick Services, Inc., 97-1345, p. 12 (La.App. 3 Cir. 4/1/98), 711 So.2d 745, 752 citing Morehead v. Ford Motor Co., 29,399, p. 5 (La.App. 2 Cir. 5/21/97), 694 So.2d 650, 655, writ denied, 97-1865 (La.11/7/97), 703 So.2d 1265. When the trial court is convinced by its examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. Davis, 00-0445 at p. 10, 774 So.2d at 93.

As we stated, Mr. and Mrs. Lewis joined and pleaded with their motion for new trial an alternative motion for JNOV.

JNOV

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points IfjSO strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 4 (La.10/30/00), 772 So.2d 94, 99.

When contemplating a JNOV, the trial court is prohibited from weighing evidence, making credibility determinations, drawing inferences therefrom, or substituting its own factual conclusions for those of the jury. Additionally, questions of fact should be resolved in favor of the non-moving party. Templet v. State ex rel. Dept. of Transp. and Development, 00-2162, p. 6 (La.App. 1 Cir. 11/9/01), 818 So.2d 54, 58. The trial judge is not entitled to interfere with the verdict simply because he believes another result would be correct. See Davis, 00-0445 at pp. 12-13, 774 So.2d at 95. This rigorous standard is based on the principle that “[w]hen there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at 5, 772 So.2d at 99.

The instant case is nearly identical in its facts to those presented to the Fourth Circuit in Pattison v. Valley Forge Insurance Company, 599 So.2d 873 (La.App. 4 Cir.), writ denied, 604 So.2d 1001 (La.1992). In Pattison, the jury found that the plaintiff had sustained injury as a result of the accident sued upon, but failed to award plaintiff either general or special damages. On appeal, the Fourth Circuit held that the jury’s responses to the interrogatories posed on the verdict form were not inconsistent where the record indicated that the jury was made aware, prior to its deliberation, that Valley Forge, plaintiffs uninsured motorist carrier, had unconditionally tendered a total of $40,000.00 to plaintiff for his injuries and that it had paid plaintiffs past medical expenses. Id., 599 So.2d at 875.

| 6As in Pattison, the jury in the instant case was well aware that Mrs. Lewis’ uninsured motorist carrier, State Farm, had issued two separate, unconditional tenders totaling $27,500.00, in addition to a $10,000.00 settlement Mrs. Lewis received from the liability insurer. The record reflects that in responding to questions put to Mrs. Lewis by her attorney, Mrs. Lewis acknowledged State Farm had paid approximately $3,000.00 of her medical expenses. In addition, Mrs. Lewis’ attorney extensively questioned Ann McClendon, a State Farm auto claim representative with 30-years experience, regarding her evaluation of Mrs. Lewis’ claim and tender offer.

Upon review of the record, we find the jury’s responses to the questions posed in the jury interrogatories are not inconsistent. Although the jury found Mrs. Lewis had been injured in the December 9, 2005 automobile accident, it is apparent that the jury believed the sum of $37,500.00 previously received by Mrs. Lewis was sufficient to compensate her for her injuries. Additionally, the jury specifically found that State Farm did not arbitrarily or capriciously refuse to tender a reasonable amount of damages to Mrs. Lewis.

For the above and foregoing reasons, we affirm the judgment of the trial court and assess all costs associated with this appeal against plaintiffs-appellants, Debra A. Lewis and Anthony P. Lewis. We issue this memorandum opinion in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B.

AFFIRMED.

GUIDRY, J. dissents.

      . Mr. and Mrs. Lewis allege $3,549.79 of this amount was deducted by Safeway and forwarded to State Farm for reimbursement of medical payments made on behalf of Mrs. Lewis. As a result, Mrs. Lewis received $6,540.21.

      . A copy of this court’s ruling is not contained in the record of this matter.

      . It should be noted that Mr. and Mrs. Lewis, in their brief to this court, argue that the Fourth Circuit's decision in Pattison, "significantly departs” from decisions rendered by this court regarding this issue. In support of this contention, Mr. and Mrs. Lewis cite Harper v. Boudreaux, 496 So.2d 439 (La.App. 1 Cir.1986). Unlike the facts presented by the instant case and those in Pattison, the Harper decision was based upon a liability claim rather than an uninsured motorist claim, and the jury had no knowledge of prior settlements and tenders by the uninsured motorist carrier.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James BROWN, Jr.
    No. 2009-KA-0884.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.

      John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|, James Brown was convicted by a jury of attempted first degree robbery, a violation of La. R.S. 14:27 and 14:64.1, for which he was sentenced to ten years at hard labor. In his sole assignment of error, Mr. Brown argues that his conviction and sentence should be reversed because the trial court erred in denying his motion to suppress identification. In particular, Mr. Brown contends that the one-on-one show up procedure used to identify him was suggestive such that there is a substantial likelihood that he has been misidentified. For the reasons which follow, we find that Mr. Brown has not carried his burden of proof on the issue of suppression and, accordingly, affirm his conviction and sentence.

I

On the night of June 10, 2008, Mr. Carlos Deleon was leaving the Holiday Inn on Carondelet Street when he was attacked. His assailant approached him from behind, pulled his left arm towards his back, and put a sharp object against his neck. He was told to give up his wallet or else be killed. Mr. Deleon instinctively breached for his attacker’s arm and received a small laceration on his left ribcage in the ensuing struggle. Mr. Deleon called for help, and one of his co-workers, Leroy McDougal, responded in time to observe the assailant running away. Mr. Deleon and Mr. McDougal chased the assailant for approximately four blocks before he escaped. They then returned to the Holiday Inn garage to wait for the police, who had already been called. In the 911 tape of this call (which was introduced at trial and played for the jury without objection from the defense), an unidentified man told the dispatcher that a black man in a white shirt had just accosted Mr. Deleon with a knife. Officer Billy Tregle and his partner, Officer Brandon Ludwig responded to the dispatch call alerting them to the same: an attempted robbery had occurred near the corner of Gravier and Carondelet Streets by a black male in a white shirt armed with a knife. The officers set up a perimeter in the vicinity of Carondelet and O’Keefe Streets and then began perusing the vicinity of North Rampart Street. Within four minutes of the dispatch call, they observed a black male wearing a white shirt. Officer Ludwig claims to have observed the subject holding a knife in his left hand.

The officers stopped Mr. Brown approximately three to four blocks from the Holiday Inn, near the Gravier and O’Keefe Streets. Although there was no sign of blood on his hands, clothes, or knife, the officers arrested Mr. Brown, read him his rights, and informed him that he was under investigation for attempted armed robbery with a knife. About 30 to 40 minutes following Mr. Brown’s arrest, Mr. McDou-gal and Mr. Deleon were successively brought to Gravier and O’Keefe, where Mr. Brown had been held since the time he was apprehended, for one-on-one identifications under the supervision of Detective Sean McElrath. Detective McElrath explained that he conducted the show up identifications separately in |sorder to eliminate or minimize any collaboration between witnesses. The witness and the victim each identified Mr. Brown as the assailant within seconds, with the victim noting that there was no doubt in his mind that Mr. Brown was his attacker.

II

A

In his sole assignment of error, Mr. Brown argues that his conviction and sentence should be reversed because the trial court erred in denying his pre-trial motion to suppress the one-on-one show up identification made by the victim. A “one-on-one show up” concerns “an identification procedure that takes place shortly after a crime is committed, usually at the scene of the crime or the apprehension of a suspect, whereby a victim is asked whether the victim recognizes a person suspected to be the perpetrator of a crime against the victim.” State v. Harold, 03-0649, p. 6 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265, n. 2. Mr. Brown asserts that the trial court’s failure to suppress the one-on-one show up identification allowed the prosecution to elicit unreliable in-court identifications at trial.

On review, we will not disturb a trial court’s determination on the admissibility of an out-of-court identification unless the record reveals an abuse of discretion. State v. Weathersby, 09-2407, p. 4 (La.3/12/10), 29 So.3d 499 (per curiam); State v. Bickham, 404 So.2d 929, 934 (La.1981). Our review is not limited to the evidence adduced at the hearing on the motion to suppress, but it also extends to evidence adduced at the trial. State v. Lewis, 04-0227, p. 18 (La.App. 4 Cir. 9/29/04), 885 So.2d 641, 652.

| /fhe constitutional basis for a motion to suppress an out-of-court identification is found in the Due Process protections of the United States Constitution’s Fifth and Fourteenth Amendments. See Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In a motion to suppress, “the burden of proof is on the defendant to prove the ground of his motion ...” La.C.Cr.P. art. 703 D. Accordingly, the defendant bears the burden of proof on a motion to suppress an out-of-court identification. State v. Stovall, 07-0343, p. 16 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1084. The burden of proof does not shift to the prosecution as it does in the context of determining the admissibility of evidence of a purported confession or due to a defendant’s assertion that his rights have been violated after he has made an initial showing of a reasonable expectation of privacy and a warrantless search or seizure. See State v. Williams, 07-700, p. 8 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1109 (the prosecution must establish the admissibility of a purported confession by showing that it was voluntarily made), and State v. Bazile, 386 So.2d 349, 353 (La.1980) (on a motion to suppress, the burden of proof shifts to the prosecution to prove the admissibility of evidence once the defendant makes an initial showing that his rights have been violated by a warrantless search).

To prevail on such a motion, the defendant must show two things: that the identification procedure was suggestive, and, having substantiated that, he must show that there was substantial likelihood of misidentification as a result of the suggestive identification procedure. State v. Higgins, 03-1980, p. 19 (La.4/1/05), 898 So.2d 1219, 1231-32. Accordingly, even where the defendant has proven, or the court has presumed, the suggestiveness of an identification process, to carry his burden the defendant must also show that there was a substantial likelihood of 15misidentification as a result of the procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984); see also State v. Robinson, 09-0922 (La.App. 4 Cir. 3/10/10), — So.3d -, 2010 WL 830964. It is the likelihood of misidentification that violates due process, not suggestibility by itself, and thus the mere fact that an identification is unduly suggestive is not sufficient to establish its inadmissibility. State v. Harold, supra, 03-0649 at p. 6, 861 So.2d at 266.

An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Thibodeaux, 98-1673, p. 20 (La.9/8/99), 750 So.2d 916, 932. In determining the likelihood of misidentification of a suspect, a court must look to the “totality of the circumstances” as informed by the five factors set forth by the United States Supreme Court in Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375. These factors include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ pri- or description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. Any corrupting effect of a suggestive identification is to be weighed against these factors. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

B

Mr. Brown particularly contests the reliability of the one-on-one show up identification made by the victim. Mr. Brown suggests that the improper show up identification vitiated Mr. Deleon’s ability to make an independent in-court identification of his assailant. One-on-one identifications are not favored by the law, but they are nevertheless permissible when justified by the overall circumstances. State v. Dunbar, 356 So.2d 956, 962 (La.1978). Such procedures Rare permissible when, for example, the accused is apprehended within a short time after the offense and is returned to the scene of the crime for immediate identification, because, under appropriate circumstances, a prompt in-the-field identification promotes accuracy and expedites the release of innocent suspects. Bickham, supra.

Here, Detective McElrath took Mr. Deleon from the crime scene to the location where Mr. Brown was being held in the back of a police car and asked if Mr. Brown was the man who attacked him. This procedure unduly focused Mr. Deleon’s attention on the defendant, and thus the identification procedure was clearly suggestive. But from our earlier observation, proof of suggestibility is a necessary, but not sufficient condition for the suppression of the identification. Thus, while we find that the identification procedure in this case was suggestive, we also find that Mr. Brown has not carried his burden of showing that the totality of the circumstances indicate the suggestive identification procedure was substantially likely to lead to his misidentification.

In the present case, Mr. Brown asserts that Mr. Deleon’s identification was unreliable for the following reasons: he did not have a sufficient opportunity to observe his attacker, his description was too vague, and the one-on-one identification was not conducted immediately after the crime. The trial court’s failure to suppress the identification, Mr. Brown argues, allowed the state to elicit an unreliable identification by Mr. Deleon at trial. Only Officer Ludwig, for the prosecution, testified at the hearing on the motion to suppress. Mr. Brown failed to carry his burden of proof at the motion to suppress and, having failed demonstrate any further indi-cia of unreliability at trial, he has not shown that the totality of the | ^circumstances require a finding that the one-on-one show up was substantially likely to result in misidentification.

Neil v. Biggers sets forth five factors to be considered in evaluating the “totality of the circumstances” in the likelihood of mis-identification of a suspect. Neil v. Biggers, supra at 382, 93 S.Ct. 375. Mr. Brown argues that Mr. Deleon had no opportunity to view his assailant because his attacker came at him from behind. However, Mr. Deleon testified at trial that after his assailant fled, he and Mr. McDou-gal followed the assailant for approximately four blocks. Mr. Deleon admitted that his assailant was, at all times, approximately one block’s distance from their relative position. Nevertheless, the record indicates that the victim’s pursuit lasted from eight to ten minutes. Thus, the record indicates that Mr. Brown had at least some opportunity to view his assailant at the time of the crime.

Although Mr. Deleon was attacked from behind, he and Mr. McDougal followed the assailant for 8 to 10 minutes after the attack. The third factor examines the accuracy of the witness’ prior description of the criminal. Mr. Deleon and Mr. McDougal described the assailant to police prior to Mr. Brown’s arrest as a black male wearing a white shirt, carrying a knife. Although this description is vague, it nonetheless matched Mr. Brown’s actual appearance at the time of his arrest. Accordingly, Mr. Brown has not demonstrated that either Mr. Deleon’s degree of attention or the accuracy of the description given was unreliable. The fourth factor, which Mr. Brown does not contest, examines the level of certainty displayed by the witness at the confrontation. Mr. Deleon identified Mr. Brown at the one-on-one show up within seconds and stated that there was no doubt in his mind that Mr. Brown was his attacker. Accordingly, Mr. Deleon displayed a high level of certainty in his identification.

| ¡¿Finally, we examine the length of time between the crime and the confrontation. State v. Biclcham requires that the show up identification occur within a short time after the offense. This temporal factor is generally satisfied when the identification occurs within an hour of the crime. See, e.g., State v. Valentine, 570 So.2d 533, 537 (La.App. 4 Cir.1990), and see also State v. Harold, supra, at n. 2 (finding that the final Biggers factor is satisfied when the entire criminal episode, from the time of the crime to the identification, takes place within an hour). Here, approximately 30-40 minutes transpired between the commission of the crime and the one-on-one show up identification, and Mr. Brown has not pointed to any other evidence or supporting authority to indicate that this delay is unreasonable.

In State v. Harold, supra, 2003-0649 at p. 10, 861 So.2d at 268, this Court addressed the temporal factor accordingly:

Because the entire criminal episode in the instant case, from the commission of the crime to Mr. Harold’s arrest, transpired in less than an hour, we find that the length of time between the crime and the identification was clearly short enough for the memory of Mr. Harold’s face to be fresh in Ms. Albaral’s mind. Therefore, the fifth factor in Biggers was satisfied.

As in Valentine and Harold, the record in the present matter demonstrates that the show up identification occurred within a sufficiently short time of the offense to satisfy the final Biggers factor.

C

Returning our attention to the motion to suppress, we note that the testimony of Officer Ludwig was uncontradict-ed. Mr. Brown did not call any of the other available officers, and he did not call Mr. McDougal, the other witness. He did not attempt to call as a witness Mr. Deleon, the victim, which, of course, would have | Required a showing of good cause. See La. R.S. 46:1844 C(3). Further, Mr. Brown did not avail himself of the benefits of taking the stand at a suppression hearing. La. C.Cr.P. art. 703 E(l) provides in pertinent part:

The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.

See also, e.g., State v. Johnson, 723 So.2d 407 (La.1998).

Officer Ludwig testified at the trial itself, as he had done at the suppression hearing. The jury also heard testimony from Detective McElrath, Officer Tregle, and Mr. Deleon, all of whom corroborated Officer Ludwig’s testimony from the suppression hearing. The prosecution — without objection by the defense — also played for the jury a tape of the 911 call made by an unidentified person on the night of the crime. The tape further supports the un-contradicted evidence that Mr. Deleon was attacked with a knife by a “black male in a white T-shirt.” The caller provided this description and maintained contact with the dispatcher to regularly report the fleeing attacker’s position. This brief 911 call ended after the caller observed two police units enter the area with their lights on. The contents of a 911 call are generally admissible as “nontestimonial statements” when they are “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

From our review, which is not limited to the evidence adduced at the suppression hearing but also extends to evidence adduced at trial, see State v. h fíLewis, supra, we find that Mr. Brown has not shown that, under the totality of the circumstances, there was a substantial likelihood of his misidentification. Because we find that Mr. Brown failed to carry his burden of proof that the out-of-court identification was “substantially likely to lead to mis-identification,” we conclude that the trial judge did not err in denying Mr. Brown’s motion to suppress and admitting testimony of the out-of-court identification at trial.

Under such circumstances, the trial judge did not err in allowing the jury to weigh Mr. Deleon’s out-of-court identification of Mr. Brown. As the United States Supreme court noted in Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. 2243:

We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

III

We always review the record for errors patent. See La. C.Cr.P. art. 920(2). Mr. Brown was convicted of attempted first degree robbery, a violation of La. R.S. 14:27 and 14:64. La. R.S. 14:64.1 provides for a sentence upon conviction of imprisonment at hard labor for not less than three years, nor more than forty years, without benefit of parole, probation, or suspension of sentence. Subsection D(3) of La. R.S. 14:27 governs sentencing for persons found guilty of an attempt to commit a certain offenses, providing for sentence upon conviction in the same manner as for the offense attempted but that the imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense so attempted. See State v. Patterson, 259 La. 508, 512-513, 250 So.2d 721, 723 (1971). The trial court here failed to state that Mr. Brown’s sentence was to be |nserved without the benefit of parole, probation, and suspension of sentence and thus imposed an illegally lenient sentence. An illegally lenient sentence can be noticed by the appellate court sua sponte. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; see also La. C.Cr.P. art. 882 A (“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”). Although the trial court did not restrict eligibility for probation, parole, or suspension of sentence as mandated by La. R.S. 14:64.1, subsection A of La. R.S. 15:301.1 deems that those requirements are contained in the sentence, whether or not they are imposed by the trial court. Moreover, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. State v. Allen, 2010 WL 117681, p. 2 (La.App. 4 Cir. 1/13/2010), 30 So.3d 1024.

DECREE

Having found no merit in Mr. Brown’s sole assignment of error, we affirm his conviction for the crime of attempted first degree robbery. We also affirm his sentence of 10 years at hard labor without the benefit of parole, probation, or suspension of sentence, subject to credit for time served.

AFFIRMED.

      . See review of error patent in Part III, infra.

      . The defendant makes no arguments about Mr. McDougal's identification of the defendant. Although Mr. McDougal did not testify at trial, the jury heard testimony by Officer Ludwig and Detective McElrath about his one-on-one identification of Mr. Brown.

      . See also State v. Taylor, 09-2781 (La.3/12/10), 29 So.3d 481 (per curiam).

      . This statutory protection is the state equivalent to the federal procedure which prevents later use at trial as substantive evidence of a defendant’s testimony at a suppression hearing. See Simmons v. United States, 390 U.S. 377, 389-391, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      . Moreover, as the trial judge noted at sentencing, Mr. Brown has been convicted of a crime of violence which disqualifies him from eligibility for diminution of sentence for "good behavior.” See La. C.Cr.P. art. 890.1 B and La. R.S. 15:571.3 C(l)(q).


author: MICHAEL E. KIRBY, Judge.

text:
    Brenda Bell NOEL, Geraldine Bell, Barbara Bell, Donna Bell, Delores Bell Brown, Kerry Bell, and Janice Bell, Survivors of the Decedent, Winfret Bell v. The HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2009-CA-0711.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2010.

      Darleen M. Jacobs, Al A. Sarrat, Rene’ D. Lovelace, Jacobs, Sarrat & Lovelace, New Orleans, LA, for Plaintiffs/Appellees.
    Laetitia Black, Wayne E. Woods, General Counsel, Housing Authority of New Orleans, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

| defendant, Housing Authority of New Orleans (“HANO”), appeals the trial court judgment awarding damages to plaintiffs for the wrongful death of Mrs. Winfret Bell. Because plaintiffs failed to prove that the defect on the defendant’s property caused the death of Mrs. Bell, we reverse the trial court judgment and render judgment in favor of HANO, dismissing plaintiffs’ claims.

Mrs. Bell’s seven children filed a wrongful death and survival action against HANO, asserting negligence and strict liability theories of recovery. One of Mrs. Bell’s children, Janice Bell, died after this suit was filed, and her daughter, Kennita Bell, was substituted as a party plaintiff. In addition to Kennita Bell, the other plaintiffs are Brenda Bell Noel, Geraldine Bell, Barbara Bell, Donna Bell, Delores Bell Brown and Kerry Bell.

Plaintiffs alleged that on November 8, 1995, Mrs. Bell was walking from one room to another in the apartment she rented from HANO when her shoe got caught in a broken threshold, causing her to fall forward and sustain severe injuries that resulted in her death that same day. Following trial, the trial court rendered | judgment in favor of plaintiffs and against HANO, and awarded the sum of $50,000.00 to each plaintiff and $7,001.60 in special damages. HANO filed a motion for new trial, which the trial court granted only for the purpose of clarifying that the sum of $50,000.00 awarded to each plaintiff was solely for the wrongful death of Mrs. Bell. The trial court stated that it found no evidence that plaintiffs are entitled to any award for Mrs. Bell’s survival action. In all other respects, the original judgment remained unchanged. HANO now appeals.

The only witnesses testifying at trial were five of the seven plaintiffs. It is undisputed that Mrs. Bell was alone at the time of her alleged slip and fall accident. The testimony established that on November 8, 1995, Mrs. Bell’s granddaughter Kennita, went to her grandmother’s apartment after school, and became concerned when Mrs. Bell failed to respond to her knock on the door. Kennita summoned her mother, Janice Bell, and Kennita gained entrance to Mrs. Bell’s apartment through a window and opened the door for her mother. Kennita and Janice found Mrs. Bell face down on the floor with one of the bedroom slippers she was wearing stuck in a broken threshold between a bedroom and hallway. Janice Bell called 911, and paramedics and police responded. She also called other family members. Kennita testified that her mother, who died in 2006, had complained to HANO about the broken threshold, and that Ken-nita had accompanied her mother to the HANO office when the complaint was made. Kennita also stated that she overheard her grandmother calling the HANO office to complain about the broken threshold.

| ¡¡Brenda Bell Noel, another one of Mrs. Bell’s daughters, testified that after receiving a call from her sister, Janice, she arrived at her mother’s apartment, and saw her mother face down on the floor with a slipper stuck in the broken threshold. The police were on the scene when she arrived. Mrs. Noel stated that she removed the slipper from her mother’s foot. She also testified that the threshold had been damaged for three to four months, and that she had personally complained about the threshold to HANO, the owner of the property, even though her mother and sister, Janice, had already done so. Mrs. Noel testified that a HANO representative told her that her mother and sister had already lodged complaints about the threshold.

Donna Bell and Barbara Bell, daughters of the decedent, Mrs. Bell, both testified that when they arrived at their mother’s apartment, they saw her on the floor, face down, with one of her slippers caught in the threshold at issue. Donna Bell also testified that the photograph offered into evidence as Exhibit # 3 shows her foot pointing toward the broken threshold.

In addition to the testimony presented at trial, the plaintiff also introduced into evidence four exhibits. Exhibit # 1 is a bill for $4,001.00 from a funeral home, Exhibit # 2 is a photograph of Mrs. Bell taken after her fall and showing severe facial injuries, Exhibit # 3 is the aforementioned photograph of Donna Bell’s foot pointing at the broken threshold and Exhibit #4 is Mrs. Bell’s death certificate. I/The death certificate, signed by Orleans Parish coroner, Dr. Frank Minyard, lists Mrs. Bell’s cause of death as “hypertensive cardiovascular disease.”

On appeal, HANO presents nine assignments of error. Because we find merit in two of the assignments of error addressing the issue of causation, we need not consider the remaining arguments.

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error/clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Rando v. Anco Insulations, Inc., 2008-1168, 2008-1169, p. 29 (La.5/22/09), 16 So.3d 1065, 1087. As stated above, Mrs. Bell’s death occurred on November 8, 1995. Under the laws in effect on that date, a plaintiff is required to prove the following elements to prevail in a claim based on either negligence or strict liability: (1) that the thing which caused the damages was in the care, custody, and control (garde) of the defendant; (2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3) that the vice, ruin, or defect was the cause-in-fact of the plaintiffs damages. La. C.C. article 2315; La. C.C. article 2317; Dupree v. City of New Orleans, 99-3651, pp. 5-6 (La.8/31/00), 765 So.2d 1002, 1008, citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990) and Loescher v. Parr, 324 So.2d 441 (La.1975). In a negligence claim, a plaintiff has the additional burden of proving the | ^defendant knew or should have known of the defect. Mayfield v. State ex rel. Dept. of Transp. and Development, 99-2246, pp. 4-5 (La.App. 1 Cir. 11/3/00), 770 So.2d 519, 522.

Before discussing the evidence as to causation, we note that the evidence presented at trial was sufficient to prove that HANO had care, custody and control of the threshold as it was on HANO property. The evidence was also sufficient to prove that the threshold presented an unreasonable risk of harm in that it was not flush with the floor. As for the additional element necessary to prevail in a negligence action, i.e. that the defendant knew or should have known of the defect, the evidence established that HANO knew or should have known of this defect through numerous complaints registered by Mrs. Bell and other family members.

Even though the evidence presented by plaintiffs was sufficient to prove the required elements other than causation, we conclude that the trial court erred in finding that plaintiffs carried their burden of proving that the defective threshold was a cause of Mrs. Bell’s death. The only evidence introduced at trial on the issue of causation was the death certificate signed by Dr. Frank Minyard, the Orleans Parish coroner. This evidence was introduced by the plaintiffs. Dr. Minyard listed the cause of Mrs. Bell’s death as “hypertensive cardiovascular disease.” The death certificate includes space for the listing of additional diseases, injuries or complications that caused or contributed to the death, but these spaces were left blank. There is no reference to a fall anywhere on the death certificate. |fiIn fact, in the section entitled “Manner of Death,” Dr. Minyard checked “Natural” and not “Accident,” which was one of the other choices. Plaintiffs offered no medical evidence to controvert the coroner’s finding that the only cause of Mrs. Bell’s death was hypertensive cardiovascular disease.

The trial court’s reasons for judgment included the finding that the plaintiffs carried their burden of proving that Mrs. Bell’s death occurred as a result of her tripping and falling on the defective threshold. This finding was clear error. The testimony presented at trial revealed that Mrs. Bell was already on the floor when she was found by her daughter, Janice, and her granddaughter, Kennita. Even accepting as true that Mrs. Bell tripped and fell on the defective threshold, there was no evidence presented at trial that a fall contributed to or caused her death. Because plaintiffs failed in their burden of proving that the defective threshold in the apartment owned by HANO was a cause of Mrs. Bell’s death, the trial court erred in rendering judgment in favor of plaintiffs and against HANO.

For the reasons stated above, we reverse the trial court judgment in favor or plaintiffs and against HANO. We hereby render judgment in favor of HANO, and dismiss plaintiffs’ claims against HANO with prejudice.

REVERSED AND RENDERED.

      . In reasons for judgment, the trial court mistakenly stated that the photograph shows the decedent's shoe stuck in the portion of the threshold that was not flush with the floor. The shoe in the photograph was on Donna Bell’s foot, not the decedent’s foot. Also, the shoe in the photograph was not stuck in the threshold, but was pointing toward it.

      . We note that La. R.S. 9:2800 was amended in 1995 to require actual or constructive notice of a defect as a prerequisite to claims against public entities for damages caused by the condition of things within its care and custody. The effective date of the amendment to La. R.S. 9:2800 was November 23, 1995. The Louisiana Supreme Court found the amendment to be a substantive change in the law, and not entitled to retroactive application. Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14. Because Mrs. Bell's death occurred prior to November 23, 1995, the 1995 amendment to La. R.S. 9:2800 is not applicable in this case.

      . The remaining choices were "suicide,” "homicide,” "pending investigation” and "undetermined.”


author: JAMES F. McKAY, III, Judge.

text:
    Blaine AUSTIN v. DEPARTMENT OF POLICE.
    No. 2009-CA-1376.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2010.

      Frank G. DeSalvo FRank G. DeSalvo, APLC, New Orleans, LA, for Plaintiff/Ap-pellee.
    Penya Moses-Fields, City Attorney of Orleans Parish, Nolan P. Lambert, Chief Deputy City Attorney of Orleans Parish, Victor L. Papai, Jr., Assistant City Attorney of Orleans Parish, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.)..
   JAMES F. McKAY, III, Judge.

| [The New Orleans Police Department (NOPD), seeks reversal of the decision of the Civil Service Commission (Commission), granting in part the appeal of Lieutenant Blaine Austin, an employee of the NOPD. Specifically, the NOPD argues the Commission acted arbitrarily and capriciously in granting Lieutenant Austin’s appeal as lawful cause existed for the discipline imposed by the NOPD. For the following reasons, we affirm.

STATEMENT OF FACTS/PROCEDURAL HISTORY

At the time of the alleged incident, Blaine Austin was employed by the NOPD as a Lieutenant with permanent status and assigned to the Second District. He was initially hired by the NOPD on July 28, 1985.

On or about February 26, 2008, Lieutenant Austin, while driving his police unit, a 2006 Ford Expedition designated as unit #220, backed into a dumpster located in the parking lot of the Second District police station. He asserts that he examined the vehicle but did not notice any damage. On that same date, at 2:40 a.m., after leaving the Walgreens Drug Store on South Carrollton Avenue, he noticed damage to the unit. Subsequent to this discovery, as per departmental rule, |?he made two incident reports under item number B-30478-08. The initial report was made to Officer Shannon Jones and the second, a hit and run report, to Officer Kendrick Allen.

On March 10, 2008, Captain Kirk Bouye-las (“Deputy Chief Bouyelas”), Commander of the Second District, discovered damage to unit #220 and opined that the damage to the vehicle appeared as though it lined up with the dumpster. He recreated the scene which showed that the dumpster part fit into the damage to the unit. He ordered a departmental investigation into the incident. Lieutenant Ronald Laporte Jr. was assigned to conduct the investigation.

On October 6, 2008, Lieutenant Austin received a disciplinary letter charging him with violating the departmental rules regarding truthfulness; professionalism; instructions from an authoritative source, to wit: departmental property; performance of duty, neglect of duty; and false or inaccurate reports (two counts). On January 15, 2009 and March 15, 2009, hearings were held before the hearing officer for the appointing authority. Following the hearings, the NOPD suspended Lieutenant Austin for ten days for violation of internal rules regarding truthfulness; ten days for the violation of filing a false or inaccurate police report; and two one-day suspensions for sustained violations of instructions from an authoritative source, and additionally demoted him to the rank of Police Officer IV. Lieutenant Austin filed an appeal with the Commission.

On January 15, 2009, at the appeal hearing before the Commission, the NOPD called Lieutenant Laporte, the investigating officer, as a witness. Lieutenant La-porte testified that on February 26, 2008, a report was generated | regarding damage to Unit # 220, a vehicle used by ranking officers. NOPD Officer Jones prepared the miscellaneous report, which states:

At 2:40 a.m., Sgt. Austin parked Unit 220, A# (number) 06006 at 2418 S. Car-rollton Avenue. Upon returning to the vehicle, Sgt. Austin observed a tear and dent on the rear door near the handle. The damage was not observed by Sgt. Austin during the inspection of the vehicle prior to beginning the tour of duty. Sgt. Austin relocated to 4317 Magazine Street (Second District Station) to check the vehicle damage log. The damage had not been listed in the vehicle damage log. Officer Jones observed the dent and tear on the rear door near the handle.

Lieutenant Laporte testified that the administrative sergeant, Sergeant Young, required a hit and run report to be completed on this incident. On March 7, 2008, NOPD Officer Allen completed a hit and run report which provides:

Officer spoke with Sergeant B. Austin who stated the he legally parked unit 220 at 2418 S. Carrollton. Upon returning to the vehicle, he observed that the rear door had a tear in the metal and a dent in the door. Sgt. Austin stated that before this incident the damage to the door was not there. Sgt. Austin stated that he canvassed the parking lot for any other damage (sic) vehicles but met with negative results.

Lieutenant Laporte testified that a few weeks later, on March 10, 2008, Deputy Chief Bouyelas noted that the damage on Unit 220 lined up with the outside dumpster and ordered an investigation to determine how Unit 220 sustained damage. During the course of the investigation, Lieutenant Laporte testified that he lined up the dumpster and the vehicle and the damage on Unit 220 matched up with the edge of the dumpster. Further, Lieutenant Laporte testified that Lieutenant Austin admitted he backed up into the dumpster, got out and looked at the back bumper. Lieutenant Laporte testified that Lieutenant Austin believed that Unit 220 did not sustain damage as a result of backing into the dumpster and did not report the incident with the dumpster. Lieutenant Austin did not notice any damage to the vehicle until later that evening while parked at a |4Walgreen’s drug store. Lieutenant Laporte testified that Lieutenant Austin did not know that the damage occurred from the incident with the dumpster, but Lieutenant Laporte believed that Lieutenant Austin should have known his bumping into the dumpster resulted in damage. Lieutenant Laporte admitted that every violation he found Lieutenant Austin to have violated is based upon whether or not Lieutenant Austin knew that damage occurred to the vehicle when he backed into the dumpster. While the disciplinary letter concluded that Lieutenant Austin stated that the damage occurred in the parking lot of the Walgreen’s drug store, Lieutenant Laporte confirmed that Lieutenant Austin never claimed the damage occurred in the parking lot of the Walgreen’s drug store, but that Lieutenant Austin first noticed the damage in the parking lot. Lieutenant Laporte testified that had Lieutenant Austin observed the damage while in the parking lot of the Second District Station and reported it, he would probably have received a letter of reprimand.

Lieutenant Laporte testified that when damage to a police unit occurs, the police officer involved is required to contact his supervisor so that the supervisor can proceed to the scene where the vehicle sustained damage. The police officer is also required to notify the dispatcher. In this instance, Lieutenant Laporte testified that Lieutenant Austin failed to notify his supervisor and have his supervisor meet him at the scene where the vehicle sustained damage.

Lieutenant Laporte stated that the parking lot at the Second District Station is dark and admitted that although there is a light, sometimes the light does not work. He testified that on the night of the incident in question, Lieutenant Austin reported for duty at 10:25 p.m., so it was dark. Additionally he testified that ^Lieutenant Austin had only been stationed at the Second District for two days at the time of the incident.

The NOPD lastly called Deputy Chief Bouyelas who testified that as he was sitting at his desk during the day and noticed the damaged Unit 220 and the dumpster. He opined that if Unit 220 backed into the dumpster, the damaged area would fit a particular section of the dumpster. He stated that he did not know if the damage would be noticeable if the light were not working. Deputy Chief Bouyelas testified that he believed that Lieutenant Austin’s actions were egregious and that Lieutenant Austin had a duty to notify a supervisor as soon as he hit the dumpster, even if he believed that the vehicle sustained no damage. Deputy Chief Bouyelas opined that had Lieutenant Austin reported the damage immediately after hitting the dumpster, the recommended penalty would have probably been a letter of reprimand.

Lieutenant Austin testified that on February 26, 2008, he reported for his second day of duty at the Second District Station. Lieutenant Austin stated he completed some work at the station before leaving to go out on the street around midnight. As he backed Unit # 220 up at a speed of one or two miles per hour, he heard a noise, stopped and got out. He noticed that the dumpster was not pushed up back against the wall, so he pushed the dumpster back. He asserts that he looked at the bumper, but did not see any new damage. He testified that the light in the parking lot was not working or was not on and that it was really dark outside.

Subsequent to this incident he continued with his police duties. He later pulled into the parking lot of a Walgreen’s drug store and parked with the back of his vehicle facing the building. He testified that when he exited the store after | (¡obtaining something to drink, he noticed damage on the right side of the rear handle of his unit. He opined that the damage appeared to have been caused by someone hitting the vehicle with a tire iron or the like. He also noticed some rust and believed that the damage might be old, but since he was new to the district, he was not sure. To determine if the damage was old, he returned to the Second District Station to review the damage log book. After determining that the damage was not previously reported, Austin notified his supervisor, Lieutenant Mims, of the situation. They both agreed that a miscellaneous report should be prepared as it was not known how Unit # 220 sustained the damage. Days later, Sergeant Young instructed Lieutenant Austin to have a hit and run report prepared regarding the damage, which was prepared per Sergeant Young’s instruction.

Lieutenant Austin testified that he never gave an untruthful statement, and that he never stated to anyone that the damage occurred in the parking lot of the Walgreen’s drug store, but rather that he first noticed the damage when the vehicle was in the parking lot of the Walgreen’s drug store. Lieutenant Austin stated that had he noticed the damage in the parking lot of the Second District Station, he would have reported it. He testified that he had no reason to hide such an incident as he has a great driving record.

The hearing officer submitted a report to the Commission which found Lieutenant Austin to be credible and which recommended the appeal be granted in part and denied in part. The hearing officer believed the appeal should be granted as to all violations except for neglecting departmental property. The hearing officer believed the penalty for such a violation should be a letter of reprimand.

The Commission issued a decision which found Lieutenant Austin’s testimony to be credible. The Commission noted that the damage was located in |7an unusual location on the vehicle where it would not have been readily noticeable in a dark area. The Commission granted the appeal of Lieutenant Austin as to the alleged violations of departmental rules on truthfulness, filing false or inaccurate reports and instructions from an authoritative source as those violations were not supported by the evidence. As to the alleged violation of the departmental rule on neglect of duty, the Commission found that the penalty imposed was not commensurate with the offense and ordered the NOPD to issue a letter of reprimand for Lieutenant Austin’s neglecting departmental property.

STANDARD OF REVIEW

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const. art. |SX, § 12; Cornelius v. Dept. of Police, 2007-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

Even where there is conflicting testimony, credibility evaluations cannot be disturbed on review. Williams v. Sewerage and Water Bd., 2004-0025, p. 7 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 121, citing Moore v. New Orleans Police Dept., 2001-0174, p. 8 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511. Unless clearly contrary to the evidence, credibility determinations are within the discretion of the trier of fact and will not be disturbed by the reviewing court. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, citing State v. Vessell, 450 So.2d 938, 943 (La.1984).

DISCUSSION

The NOPD argues the Commission acted arbitrarily and capriciously in reversing the discipline of the NOPD and substituting a letter of reprimand.

|3The NOPD argues the Commission acted arbitrarily and capriciously as lawful cause exists for the discipline imposed on Lieutenant Austin. In this instance, the NOPD bore the burden of proving that Lieutenant Austin violated the departmental rules regarding truthfulness; professionalism; performance of duty, instructions from an authoritative source, to wit: departmental property; performance of duty, neglect of duty; and false or inaccurate reports (two counts).

The NOPD concluded that Lieutenant Austin violated the department rule on truthfulness in that he lied to Lieutenant Mims and told Lieutenant Mims that the damage occurred outside of a Walgreen’s drug store, causing Lieutenant Mims to document the false information in a supervisor’s report. The NOPD failed to call Lieutenant Mims to testify and instead called Lieutenant Laporte. However, Lieutenant Laporte also testified that Lieutenant Austin first noted the damage when he was in the parking lot of the Walgreen’s drug store.

Lieutenant Austin testified that he first observed the damage in the parking lot of Walgreen’s drug store. Further, the NOPD failed to introduce the supervisor’s report. Instead, the two reports submitted into evidence by the NOPD both reveal that Lieutenant Austin stated that he observed the damage to the vehicle while in the parking lot of Walgreen’s drug store. The Commission determined that Lieutenant Austin’s testimony was credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

The NOPD concluded that Lieutenant Austin violated the departmental rule on professionalism in that he lied to the officers who prepared the reports and to his supervisor by failing to report the incident with the dumpster. Lieutenant Austin notified his supervisor immediately upon determining that the damage, first Imobserved in the parking lot of the Walgreen’s drug store, was not old damage. Lieutenant Austin did not believe that his bumping into the dumpster caused any damage because he did not observe any damage to the vehicle immediately thereafter. Lieutenant Laporte testified that when asked if he hit the dumpster, Lieutenant Austin admitted he did and explained that he checked the vehicle for damage, in the dark parking lot, and found none. Lieutenant Laporte also testified that the parking lot is dark and that the light does not always work. The Commission determined that Lieutenant Austin’s testimony was credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

The NOPD concluded that Lieutenant Austin violated the departmental rule on performance of duty, instructions from an authoritative source, to wit: departmental property in that he failed to immediately notify the dispatcher and supervisor when he bumped into the dumpster. There are two applicable rules regarding damaged departmental property and notification in the event of damage. The first rule provides that “if an employee discovers damage or malfunction during his inspection of the vehicle, the employee shall immediately notify his supervisor.” Rule 4, Performance of Duty, Chapter 17.2 Departmental Property, Damage to Vehicles or Equipment. The second rule provides that “when an operator of a departmental vehicle is involved in a traffic accident, he shall immediately notify the dispatcher and his supervisor.” Rule 4, Performance of Duty, Chapter 17.2.50 Departmental Property, Administrative Reports of Traffic Accidents.

| n Lieutenant Laporte testified that a supervisor is required to be notified so that the supervisor can go to the scene to see if there is any evidence and do some type of investigation. In the instant matter, Lieutenant Austin testified that as soon as he determined that there was new damage to the vehicle, he contacted his supervisor. Lieutenant Laporte testified that Lieutenant Austin contacted his supervisor once Lieutenant Austin was back at the Second District Station. Lieutenant Austin testified that a dispatcher is not required to be notified when damage is merely discovered on a vehicle, only in the event of a traffic accident. The Commission determined that Lieutenant Austin’s testimony was credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

The NOPD concluded that Lieutenant Austin violated the departmental rule on performance of duty, neglect of duty, because as a supervisor, Lieutenant Austin consistently failed to demonstrate that he could perform as a supervisor. In support of this conclusion, the NOPD cited Deputy Chief Bouyelas’s testimony wherein he testified that Lieutenant Austin admitted he backed into dumpster and caused damage, but failed to notify supervisor and caused two officers to file false police reports. Deputy Chief Bouyelas’s conclusion is not supported by the other testimony and evidence. Lieutenant Austin admitted he backed into dumpster, but at no time did Lieutenant Austin admit that at the time he backed into the dumpster, he knew that he caused damage. Lieutenant Austin notified his supervisor as soon as he determined that the damage to the vehicle was not old damage. Lieutenant Austin testified he first observed the damage to the vehicle in the parking lot of the Walgreen’s drug store. The NOPD submitted two police | ^reports into evidence, both of which reflect that Lieutenant Austin informed the reporting officers that he first observed the damage to the vehicle in the parking lot of the Walgreen’s drug store. The Commission determined that Lieutenant Austin’s testimony was credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

Finally, the NOPD concluded that Lieutenant Austin violated the departmental rule on false or inaccurate reports. In regards to the first report, the miscellaneous report, the disciplinary letter states Lieutenant Austin lied to Officer Jones, causing her to generate a false and inaccurate miscellaneous report, plus Lieutenant Austin intentionally withheld information from the report. In its brief, the NOPD cites Lieutenant Laporte’s testimony in support of the conclusion that Lieutenant Austin lied to Officer Jones. Lieutenant Laporte testified that if the damage occurred at the station and Lieutenant Austin knew about it, then it would be a false and inaccurate report. Lieutenant La-porte based his finding of a violation of the rule as Lieutenant Laporte believed the damage occurred at the station, not at the Walgreen’s drug store. However, Lieutenant Austin testified that he first observed the damage at the Walgreen’s drug store. The miscellaneous report also states that Lieutenant Austin first observed the damage at the Walgreen’s drug store. Lieutenant Austin testified that the parking area was dark with no working light. Lieutenant Laporte admitted that the light in the parking area is often out. Lieutenant Austin testified that he did not notice the damage to the vehicle as he looked at the bumper and it was dark. There is no evidence in the record which suggests that Lieutenant Austin intentionally withheld information from the report. The Commission determined that Lieutenant Austin’s testimony | iswas credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

In regards to the second report, the hit and run report, the disciplinary letter states Lieutenant Austin lied to Officer Allen, causing him to generate a false and inaccurate report, plus Lieutenant Austin intentionally withheld information from the report. In its brief, the NOPD again cites Lieutenant Laporte’s testimony in support of its conclusion that Lieutenant Austin lied and intentionally withheld information. During his testimony, Lieutenant Laporte was asked whether he determined that any damage occurred at the Walgreen’s drug store. Lieutenant Laporte testified that no damage occurred there. Lieutenant Laporte then concluded that the hit and run report was not accurate. However, the report does not state that Lieutenant Austin claimed the damage occurred at the Walgreen’s drug store. The report states that Lieutenant Austin first observed damage to the vehicle while in the parking lot of the Walgreen’s drug store. Lieutenant Austin testified that he first observed the damage to the vehicle while in the parking lot of the Walgreen’s drug store. The Commission determined that Lieutenant Austin’s testimony was credible. As the decision of the Commission is not clearly contrary to the evidence, there exists a rational basis for the decision of the Commission in regards to this alleged violation.

Our review of the record reveals that the credibility determination made by the Commission was not clearly contrary to the evidence and provides a rational basis for the decision of the Commission. Hence, we find that the Commission did not act in an arbitrary or capricious manner.

114Lieutenant Laporte and Deputy Chief Bouyelas both testified that had Lieutenant Austin observed the damage to the vehicle in the parking lot of the Second District Station, Lieutenant Austin would have probably only received a letter of reprimand. The Commission ordered the NOPD to issue a letter of reprimand for Lieutenant Austin’s neglecting departmental property. Considering our finding that the Commission’s credibility determination was not clearly contrary to the evidence, there is insufficient cause for the NOPD to impose a greater penalty for such a violation. Further, a rational basis exists for the decision of the Commission revoking the penalty imposed and ordering the NOPD to issue a letter of reprimand instead. Thus, we find that the Commission did not act in an arbitrary or capricious manner.

For the above and foregoing reasons, we affirm the Commission’s decision.

AFFIRMED.

      . Although Lieutenant Austin’s rank changed throughout these proceedings from Sergeant to Lieutenant to Police IV, throughout this opinion, for consistency, we will reference his rank as Lieutenant.

      . Throughout this opinion we will reference Captain Bouyelas at his current rank as Deputy Chief Bouyelas.


author: ROLAND L. BELSOME, Judge. GORBATY, J.,

text:
    Ronald A. SWOBODA v. HERO DECKS, A Division of Parody Productions, LLC.
    No. 2009-CA-1303.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2010.

      Robert E. Couhig, Jr., Jonathan P. Lemann, Claire E. Easterling, Couhig Partners, LLC, New Orleans, LA, for Plaintiff/Appellant.
    David D. Kervin, Jr., Law Office of David D. Kervin, Jr., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, This Court is presented with the question of whether an internet merchandiser has established sufficient minimum contacts with Louisiana to be subjected to personal jurisdiction. For the following reasons, we affirm the trial court’s finding that personal jurisdiction cannot be extended.

Parody Productions, LLC is a company that publishes novelty playing cards, which are sold over the internet. The product at issue for this appeal is referred to as the “Hero Decks” line which portrays well known players from a sports team’s history. One such deck includes fifty-two (52) past and present players from the New York Mets baseball team. The plaintiff in this suit, Ronald Swoboda, is included in the New York Mets Hero Deck.

Mr. Swoboda claims that he has never given Parody permission to use his image. He further contends that through his attorney he sent Parody a cease and desist letter. Parody refused to stop selling cards featuring Mr. Swoboda’s name and likeness. In response, Mr. Swoboda filed the instant lawsuit to enjoin Parody from the continued use of his name and likeness and for damages for violating his right to publicity, and, alternatively, damages for unjust enrichment. Subsequently, Parody filed exceptions of lack of personal jurisdiction, prescription, no cause of faction and improper venue. The trial court sustained the exception of lack of personal jurisdiction and this appeal followed.

This Court reviews the trial court’s dismissal of a claim for lack of personal jurisdiction de novo. See Walker v. Super 8 Motels, Inc., 2004-2206, p. 4 (La. 4 Cir. 12/7/05), 921 So.2d 988, 986. The party that seeks to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists. This burden is satisfied upon a prima facie showing that jurisdiction is appropriate, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991).

Our authority to exercise jurisdiction over a non-resident defendant is granted under the Louisiana Long-arm Statute, LSA-R.S. 13:32o!. This authority is limited by the due process requirements of the Fourteenth Amendment. U.S.C.A. Const. Amend. 14; LSA-R.S. 13:3201. The due process test was first established by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 157, 90 L.Ed. 95 (1945). There are two prongs of the due process test that must be satisfied before personal jurisdiction can be exercised. Id. First, the nonresident defendant must have “minimum contacts” with the forum state; and secondly, the exercise of personal jurisdiction in the forum state must not violate the basic notions of “fair play and substantial justice.” When applying the test the quality and nature of the activity must be considered. See id.

There are two distinct types of jurisdiction that a state may exercise over a non-resident defendant, “general” and “specific”. General jurisdiction applies when the defendant’s contacts with the state are unrelated to the lawsuit. General jurisdiction has not been asserted in the instant case. Specific jurisdiction is exercised when the cause of action is related to or arises out of the defendant’s contact with the state. Mr. Swoboda seeks to assert specific jurisdiction over Parody. More specifically, Mr. Swoboda argues that because Parody maintains an interactive website that has allowed Louisiana residents to purchase the cards, specific jurisdiction is warranted.

In order for a plaintiff to satisfy its burden of proving minimum contacts with the forum state, there must be a showing that the defendant purposefully-availed itself of the laws and protections of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). Once the plaintiff demonstrates that minimum contacts with the forum state exists, “‘a presumption of reasonableness of jurisdiction arises’ and ‘the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum |4contacts with the forum.’ ” Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 886 (citing de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991)).

In general, questions of personal jurisdiction are factual determinations that must be weighed on a case by case basis. There are no clear-cut rules or a set jurisdictional formula that can be applied in determining whether personal jurisdiction conforms with the notion of “fair play and substantial justice.” See Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). To the contrary, “... any inquiry into fair play and substantial justice’ necessarily requires determinations in which few answers will be written in black and white. The greys are dominant and even among them the shades are innumerable.’ ” Id. at n. 29, 105 S.Ct. 2174 (citing Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). As relevant as that statement was at the time it was written, the world wide use of the internet has expanded the grey areas of personal jurisdiction.

The Zippo court employed a sliding scale approach to determine whether a website has minimum contacts with a forum state sufficient to invoke personal jurisdiction. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 at 1125. The sliding scale categorizes the websites activities as passive or interactive. Id. Passive websites disseminate information and do not provide the minimum contacts that warrant the exercise of personal jurisdiction. Id. (citing Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.S.N.Y.1996)). On the other side of the scale is the interactive website where business is clearly done through the website. Those websites typically have repeated contacts and transmissions and may also allow participants to enter into contracts. Under those circumstances | ^personal jurisdiction is warranted. Zippo, 952 F.Supp. 1119 at 1125. However, when a website falls somewhere in the midrange of the scale and information is exchanged between the host and user, but not on an ongoing basis, the court must look to the extent of the interactivity and commercial nature of the exchange of information to determine whether personal jurisdiction should be exercised. Id. (citing Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996)).

For instance, in Quality Design & Constr. v. Tuff Coat Mfg., Inc., 05-1712 (La.App. 1st Cir.7/12/06), 939 So.2d 429 and later in Crummey v. Morgan, 07-0087 (La.App. 1st Cir.8/807), 965 So.2d 497, the Louisiana First Circuit Court of Appeal utilized the Zippo sliding scale approach as a guide for determining personal jurisdiction. In both cases the cause of action arose from an allegedly defective product purchased by a Louisiana citizen.

Tuff Coat manufactured a polyurethane coating for cement. Tuff Coat, 989 So.2d at 427. Tuff Coat’s product, Ultra Tuff, was used in a Louisiana water park. Id. The pigment from the Ultra Tuff leaked and damaged the water purification system. Id. The construction company filed suit against Tuff Coat and Tuff Coat excepted on the grounds of personal jurisdiction. Id. Tuff Coat operated a website that provided a telephone number for ordering the products and a list of other Louisiana businesses that had used the products. Id. Tuff Coat argued that their website was purely informational and thus, passive. Id. The First Circuit, using the Zippo sliding scale, found that Tuff Coat’s website was passive and even though Tuff Coat’s products had been purchased by at least five Louisiana businesses, there was no purposeful availment “of Louisiana’s law such that it could expect to be haled into a Louisiana court.” Id., p. 9, at 435.

|fiThe Crummey court was presented with a defendant that used a third-party website to advertise and sell a recreational vehicle. Crummey, 965 So.2d 497. The defendants and the vehicle were located in Texas. Id. The record indicated that Crummey found the vehicle online, had communicated with the seller over the telephone, and used telephone contact to place a deposit on the vehicle with a credit card. Id. The defendants offered to deliver the vehicle to Louisiana, but Mr. Crum-mey chose to travel to Texas to pick it up. Id. The transfer of ownership took place in Texas and Mr. Crummey took possession of the vehicle and began his drive back to Louisiana. Id. Prior to crossing the Texas/Louisiana border, the vehicle stopped running. Id. The defendants refused to submit a full refund for the vehicle and Mr. Crummey filed suit in Louisiana. Id. The defendants filed an exception of lack of personal jurisdiction. Id.

Using the Zippo sliding scale and distinguishing the Tuff Coat decision, the First Circuit found that there were appropriate minimum contacts to exercise personal jurisdiction. Id. The Crummey court found that the repeated contact the defendants had with Louisiana beginning with the advertising of the vehicle over the internet, then the negotiations and the tender of money over the telephone supported its finding that the defendants had purposefully availed themselves to the laws and protections of Louisiana. Id. The court also noted that the defendants had delivered two other vehicles to buyers in Louisiana. In dicta the court raised its concern for online buyers who would have no recourse in their home state against sellers who misrepresent products and/or sell defective products. Id. p. 12, at 504.

Although the Zippo sliding scale is a useful guide when examining the extent to which websites are present in a forum state, it does not eliminate the | necessity of this Court to independently review the relationship among the forum, the defendant, and the litigation when determining personal jurisdiction. See A & L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/29/01), 791 So.2d 1266. As an internet merchandiser, Parody sells playing cards on an interactive website that would fall midrange on the Zippo sliding scale. The record indicates that the playing cards can be purchased directly from the site. Other than the ability of Louisiana residents to access the website and purchase the merchandise, the record is void of any other contact Parody had with Louisiana. Once Parody refused to stop using Mr. Swoboda’s likeness, his attorney purchased a deck of the Mets playing cards over the internet shortly before filing suit against Parody.

The pivotal question in this case is whether the plaintiffs counsel’s purchase from this website or the mere ability of Louisiana citizens to access the merchandise from the website constitutes Parody purposefully availing itself of the benefits and laws of Louisiana for this cause of action. The United States Supreme Court has maintained that “the mere unilateral activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum state.” World Volkswagen, Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. St. 1228, 1239-40). Further, although the cause of action complained of in the plaintiffs petition stems from Parody’s manufacturing and selling of the playing cards, Mr. Swoboda’s cause of action as plead in his petition arose prior to his attorney’s purchase of the Mets cards in Louisiana. Thus, we find that the connexity between Parody’s contact with Louisiana and Mr. Swoboda’s cause of action are too attenuated to constitutionally exercise personal jurisdiction over Parody. Accordingly, under the facts and circumstances of this |scase, extending personal jurisdiction over Parody would not comport with the notions of fair play and substantial justice. Therefore, we affirm the trial court’s ruling.

AFFIRMED.

GORBATY, J., dissents with reasons.

GORBATY, J.,

dissents, with reasons.

_JjAs stated in the majority opinion, the United States Supreme Court first enunciated the due process test in 1945. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Since that time, technology has advanced to such a degree that it is possible for sellers to reach consumers in their homes worldwide. The onset of the internet has created a lapse between the method of doing business in 1945 and the legal system’s ability to keep up with technology-

In affirming a district court judgment granting an exception of lack of personal jurisdiction, the First Circuit explained, “[mjinimum contacts are established when the nonresident defendant ‘purposefully avails itself of the privilege of conducting activities within the forum [sjtate.’ ” Quality Design and Construction, Inc., v. Tuff Coat Mfg., Inc., 05-1712, p. 4 (La.App. 1 Cir. 7/12/06), 939 So.2d 429, 432, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 273, n. 15, 105 S.Ct. 2174, 2182, n. 15 (1985). The “purposeful availment” requirement for the exercise of personal jurisdiction over a nonresident defendant ensures that it will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183; deReyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 (La.1991).

[ gAs in this case, the defendant in Quality Design attested that it was not registered or licensed to do business in Louisiana, nor did it maintain an office, bank account, telephone number, or post office box in Louisiana. Defendant Tuff Coat did maintain an informational website. A consumer could not, however, purchase Tuff Coat products on that website; rather, the consumer had to make contact by telephone or by mail to purchase Tuff Coat’s products.

The First Circuit ultimately decided to employ a “sliding scale” measure to determine if an internet site’s connection to a forum state warrants the exercise of personal jurisdiction. This test, first enunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), has at one end of the spectrum situations where defendants clearly do business over the internet, such as when orders for merchandise can be filled using the website, and the merchandise is shipped into the forum state. At the other end, there are defendants whose contacts with the forum state are passive, for example, informational websites only. In the middle are situations where a defendant has a website that allows a user to exchange information with a host computer. In the “middle,” jurisdiction would be determined by examining “the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Zippo, 952 F.Supp. at 1124.

In Quality Design, the court ruled that Tuff Coat’s website was a passive one, whereby information about its product was provided, but actual sales were arranged via telephone or mail. The court found personal jurisdiction was lacking.

However, in Crummey v. Morgan, 07-0087 (La.App. 1 Cir. 8/8/07), 965 So.2d 497, the First Circuit found that the sale of an RV motor home via eBay satisfied the due process requirements for personal jurisdiction. In that case, a seller in Texas sold a home to a Louisiana buyer. The buyer purchased the RV on the internet with a credit card. Id. at p. 10, 965 So.2d at 503. The Court reasoned that “the defendants did business with Crummey over the Internet. Thus, the use |sof the eBay website to market and sell the RV to a Louisiana buyer is, on the Zippo sliding scale, more akin to those situations for which a finding of personal jurisdiction is proper.” (emphasis added.), Id., also see Williams v. Frank Parra Auto Plex, Inc., 05-0737, pp. 6-7 (La.App. 3 Cir. 3/22/06), 929 So.2d 755, 760-61.

Using the Zippo sliding scale, I find that Hero Decks employed an active website that allowed persons to purchase and pay for merchandise which was subsequently shipped into Louisiana using the United States Postal Service. For these reasons, I would reverse the ruling of the trial court, and find that the actions of Hero Decks created sufficient minimum contacts for the exercise of personal jurisdiction. I respectfully dissent.

      . § 3201. Personal jurisdiction over nonresidents
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.
      (2) Contracting to supply services or things in this state.
      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
      (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
      (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
      (8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices. B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.


author: EDWIN A. LOMBARD, Judge.

text:
    Patricia JACKSON v. BALLY’S LOUISIANA, INC. and XYZ Insurance Company.
    No. 2009-CA-1574.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2010.

      William S. Vincent, Jr., W. Jared Vincent, V. Jacob Garbín, Law Offices of William S. Vincent, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Brett M. Bollinger, Mark W. Verret, Jeff S. Valliere, Allen & Gooch, Metairie, LA, for Defendant/Appellee, Belle of Orleans, LLC.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_[£The plaintiff, Patricia Jackson, appeals the July 30, 2009 judgment denying her motion for new trial from the November 17, 2008 judgment, which granted a motion for summary judgment in favor of the defendant, Belle of Orleans, L.L.C. For the reasons set forth below, we affirm.

Relevant Facts and Procedural History

Ms. Jackson filed a petition for damages alleging that, while a patron of the gaming casino owned by the defendant, she was knocked down and injured by one of the defendant’s employees. The petition alleges that the employee acted in a careless, inattentive, and reckless manner by not watching where he was going. The incident occurred on July 25, 2005; the petition incorrectly states July 25, 2006.

In its motion for summary judgment, the defendant asserts that Ms. Jackson failed to establish the requisite breach of duty, arguing that it is impossible for Ms. Jackson to prove that an employee was negligent in the manner in which he was walking. The defendant maintains that, according to Ms. Jackson’s own deposition | ^testimony, she: (1) could not identify the person who bumped into her; (2) did not see the person prior to the impact; and (3) could not explain how the collision occurred. The defendant points to the following statements made by Ms. Jackson in her deposition: “I was coming from the concession stand and all I know is a gentleman walked off the elevator and the next thing I know, I was down flat on the floor. What happened, it was so fast, I don’t know. He was an employee there. I didn’t see him and evidently he didn’t see me. I definitely didn’t see him. All I know, I was flat on the floor.”

In opposition to the motion for summary judgment, Ms. Jackson asserts that her deposition testimony is enough to defeat summary judgment. Ms. Jackson relies on her statements that an employee knocked her down and admitted it was an accident. Ms. Jackson submits no other documentary evidence.

The trial court rendered judgment on November 17, 2008, granting the motion for summary judgment in favor of the defendant. Thereafter, the trial court issued written reasons for judgment, stating that Ms. Jackson alleged that an employee acted in a careless and reckless manner but that she did not see the individual coming and could not describe what the individual was doing before he hit her. Accordingly, the trial court determined that Ms. Jackson was unable to produce any significant facts and/or evidence to demonstrate that an employee negligently injured her. The trial court further noted that Ms. Jackson had ample opportunity to conduct meaningful discovery (approximately two years) in order to defeat the motion for summary judgment, but failed to propound any formal discovery in connection with this case.

In response to the granting of summary judgment, Ms. Jackson filed a motion for new trial, arguing that the hearing was rushed and that the trial court did |anot consider of the issues of fact raised in her memorandum. More specifically, Ms. Jackson asserted that the trial court did not consider her deposition testimony. The record reveals that Ms. Jackson presented no newly discovered evidence in connection with her motion for new trial. As explained by Ms. Jackson’s attorney at the hearing on the motion for summary judgment, all he had to present to prove the case was Ms. Jackson and her medical records.

The trial court denied Ms. Jackson’s motion for new trial. Ms. Jackson now appeals both the November 17, 2008 ruling, which granted the defendant’s motion for summary judgment, and the July 30, 2009 judgment, which denied her motion for new trial.

Applicable Law

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966 B. When the movant will not bear the burden of proof at trial, his burden on motion for summary judgment is merely to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim; he is not required to negate all essential elements of the adverse party’s claim, action, or defense. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La.Code Civ. Proc. art. 966 C(2). If he fails to do so, there is no genuine issue of material fact and summary judgment is appropriate. Id.

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether Rsummary judgment is appropriate, ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaba v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883.

A new trial shall be granted where: (1) the verdict or judgment appears clearly contrary to law and evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or (3) when the jury was bribed or behaved improperly so that impartial justice was not done. La. Code Civ. Proc. art. 1972. Additionally, Article 1973 provides that a new trial may be granted “in any case if there is good ground therefore, except as otherwise provided by law.” A trial judge has broad discretion in the granting or denying of a Motion for New Trial. The appellate standard of review of the ruling on a motion for new trial is whether the trial judge abused his discretion. Campbell v. Tork, 2003-1341, p. 4 (La.2/20/04), 870 So.2d 968, 971.

Discussion

As the basis for the motion for new trial, Ms. Jackson argued that summary judgment was improperly granted because the trial court failed to consider the factual evidence presented in her deposition testimony, in effect, that the judgment was contrary to the law and evidence. We disagree.

The record reveals that the trial court considered the deposition testimony, but found that it failed to provide significant facts and/or evidence to demonstrate that an employee of the defendant negligently injured her. After our de novo review, we find, as did the trial court, that Ms. Jackson’s deposition testimony was not sufficient to defeat the defendant’s properly supported motion for summary judgment. It is evident from her deposition that Ms. Jackson could not identify the Rperson who knocked her down, could not specifically identify that he wore a uniform of the defendant other than that he wore black and red, and could not explain how the collision occurred. The record further reflects that Ms. Jackson propounded no discovery and produced no incident reports, witness statements, or any other documentary evidence to show that an employee acted in a careless and negligent manner. Finally, any statements made to Ms. Jackson at the time of the incident, ie. the alleged admission by the unidentified employee, would be inadmissible hearsay.

In sum, Ms. Jackson failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Thus, the trial court’s judgment was not contrary to the law and evidence, and there was no basis to grant a new trial.

Conclusion

For the foregoing reasons, we affirm both the motion for summary judgment granted in favor of the defendant and the denial of Ms. Jackson’s motion for new trial.

AFFIRMED.

      . The record on appeal reflects no notice of judgment was sent to parties after the November 17, 2008, judgment was rendered.

      . Bally's Louisiana, Inc., the defendant initially named in the petition for damages, was formerly a member of Belle of Orleans, L.L.C., Bally’s sold its interest in Belle of Orleans, L.L.C., in June 2005, prior to the date of the incident in question. The petition was amended to name Belle of Orleans, L.L.C., as a defendant.