text:
    Earnest WILLIAMS, Individually and on Behalf of Others Similarly Situated v. HOSPITAL SERVICE DISTRICT NO.1 OF TANGIPAHOA PARISH d/b/a North Oaks Medical Center/North Oaks Health System and Louisiana Health Services & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana
    Matthew A. Dephillips, Individually & on Behalf of Others Similarly Situated v. Hospital Service District No.1 of Tangipahoa Parish d/b/a North Oaks Medical Center/North Oaks Health System
    NO. 2018-C-1386
    Supreme Court of Louisiana.
    December 17, 2018
    ON WRITS OF CERTIORARI FROM THE FIRST CIRCUIT COURT OF APPEAL
   PER CURIAM

Writ granted. Pursuant to La. Const. Art. V, § 5 and § 10, appeals are constitutionally guaranteed. This Court has consistently held that appeals should not be dismissed for a mere technicality. See U.S. Fire Ins. Co. v. Swann, 82-1143, (La. 11/29/82), 424 So.2d 240, 244-45 (citing Davidge v. Magliola, (La. 1977), 346 So.2d 177 ; Howard v. Hardware Mutual Company, 286 So.2d 334 (La.1973) ; Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970) ; Favrot v. Favrot, 252 La. 192, 210 So.2d 316 (1968) ; Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967) ).

While a judgment denying a motion for new trial is an interlocutory order and is normally not appealable, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant intended to appeal from the final judgment on the merits, the appeal should be maintained as taken from the judgment on the merits. Byrd v. Pulmonary Care Specialists, Inc. , 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 195.

We find the motion and order for appeal was properly taken from the only final judgment rendered in this consolidated matter, which was the dismissal of the plaintiff Earnest Williams' claims. Accordingly, we reinstate the appeal and remand to the First Circuit for further consideration.

APPEAL REINSTATED AND REMANDED TO THE COURT OF APPEAL FOR FURTHER PROCEEDINGS.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Derrick NELLON v. STATE of Louisiana
    No. 2017-KH-1794
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Treveno Cortez MATHIS v. STATE of Louisiana
    No. 2017-KH-1759
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF FRANKLIN
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Gregory JONES v. STATE of Louisiana
    No. 2017-KH-1807
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE EX REL. Franklin SMITH v. STATE of Louisiana
    No. 2017-KH-1813
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, by pleading guilty unconditionally, relator waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby , 338 So.2d 584, 586 (La. 1976).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant to order an evidentiary hearing on the issue of the ankle monitor report.


author: PER CURIAM

text:
    Jo Schernbeck HODDINOTT v. Reginald Kenning HODDINOTT, III
    No. 2018-C-1474
    Supreme Court of Louisiana.
    December 17, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
   PER CURIAM

Granted. The record in this case does not support a finding that res judicata was precluded by exceptional circumstances. Plaintiff's lawsuit here is based on the same allegations of domestic abuse that she voluntarily dismissed with prejudice in the consent judgment wherein the defendant agreed to provide substantial "rehabilitative support." The language of the consent judgment indicates plaintiff agreed to dismiss with prejudice her claims of physical violence and domestic abuse against her husband and that she received a substantial sum ($4000 for thirty-six months) in the form of "rehabilitative spousal support." As Judge Lombard noted in his dissent at the court of appeal, this compromise was negotiated for Mrs. Hoddinott by competent counsel and she voluntarily entered into the consent judgment. When the language of a consent judgment is clear and explicit, no further interpretation may be made in search of the parties' intent. The ruling of the court of appeal is reversed and the trial court's judgment is reinstated.

WEIMER, J., would grant and docket.

CLARK, J., would deny the writ.


text:
    IN RE: Michael S. SEPCICH
    NO. 2018-OB-1783
    Supreme Court of Louisiana.
    December 17, 2018
    ON APPLICATION FOR READMISSION
   PER CURIAM

This proceeding arises out of an application for readmission to the practice of law filed by petitioner, Michael S. Sepcich, a disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner submitted false billing for work he did not perform in connection with the representation of his clients. He self-reported his misconduct to the Office of Disciplinary Counsel ("ODC") and sought help from the Judges and Lawyers Assistance Program ("JLAP") to treat his alcohol abuse. He then joined with the ODC in submitting a petition for interim suspension, which we granted. After considering a joint petition for consent discipline, we disbarred petitioner, retroactive to July 9, 2010, the date of his interim suspension. In re: Sepcich , 15-0709 (La. 5/22/15), 165 So.3d 914.

In March 2018, petitioner filed an application for readmission with the disciplinary board, alleging he has complied with the readmission criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for readmission. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be readmitted to the practice of law, subject to the condition that he comply with his JLAP recovery agreement and that JLAP provide periodic reports to the ODC. Neither petitioner nor the ODC objected to the hearing committee's recommendation.

DISCUSSION

After considering the record in its entirety, we find petitioner has met his burden of proving that he is entitled to be readmitted to the practice of law on a conditional basis. Accordingly, we will order that petitioner be readmitted to the practice of law, subject to the condition that he comply with his JLAP recovery agreement and that JLAP provide periodic reports to the ODC.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Michael S. Sepcich, Louisiana Bar Roll number 24877, be immediately readmitted to the practice of law in Louisiana, subject to the condition that he comply with his JLAP recovery agreement and that JLAP provide periodic reports to the ODC. Should petitioner fail to comply with this condition of readmission, his conditional right to practice may be terminated immediately, or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-659567
    NO. 2018-BA-1998
    Supreme Court of Louisiana.
    December 17, 2018
    Applying For Joint Petition for Conditional Admission
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of twenty-four months. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by her with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon her by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    STATE EX REL. Jessty REESE v. STATE of Louisiana
    No. 2017-KH-1812
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Michael HARRIS v. STATE of Louisiana
    No. 2017-KH-1733
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-338193
    NO. 2018-BA-1806
    Supreme Court of Louisiana.
    December 17, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

The term of this conditional admission shall be for two years from the date of admission. However, petitioner's conditional admission status shall not be terminated until this court so orders.

I. Within thirty days of petitioner's admission, he shall enter into a formal plan with the Office of Disciplinary Counsel ("ODC") incorporating the following conditions:

A. During the period of this conditional admission, petitioner shall provide evidence to the ODC, on at least a quarterly basis, demonstrating that he has paid his monthly court-ordered child support obligation.
B. During the period of this conditional admission, petitioner shall enter into a payment schedule for the amount of his child support obligation that is in arrears. On at least a quarterly basis, petitioner shall provide evidence to the ODC demonstrating that he has made payments in accordance with the schedule.
C. During the period of this conditional admission, petitioner shall provide evidence to the ODC, on at least a quarterly basis, demonstrating that he is otherwise making a good faith effort to satisfy his financial obligations.
D. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon him by the ODC.

II. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

Guidry, J., would remand to the Committee on Bar Admissions Panel on Character and Fitness, to conduct an investigation into the qualifications of petitioner to be admitted to the Bar.

Clark, J., would remand to the Committee on Bar Admissions Panel on Character and Fitness, to conduct an investigation into the qualifications of petitioner to be admitted to the Bar.

Genovese, J., would remand to the Committee on Bar Admissions Panel on Character and Fitness, to conduct an investigation into the qualifications of petitioner to be admitted to the Bar.


text:
    STATE EX REL. Sylvester J. SULLIVAN, Jr. v. STATE of Louisiana
    No. 2017-KH-1582
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His remaining claim is procedurally barred. See La.C.Cr.P. art. 930.4(c).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant.


text:
    Ashley Dominic LAWRENCE v. Patricher SCHEXNAYDER and Government Employees Insurance Company
    NO. 2018-CC-1296
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. Otis LANDRY
    NO. 2018-KK-1835
    Supreme Court of Louisiana.
    December 17, 2018
    Stay lifted; writ denied.
   CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    STATE of Louisiana v. James Claiborne MAGEE
    KO. 2017-KP-0219
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Antonio Joseph MCKENDALL v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    NO. 2018-CI-1444
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Trisha WARD
    NO. 2017-KP-1770
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Donald SIMS
    NO. 2018-KH-1445
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Perry JACKSON v. James LEBLANC, Secretary of Department of Public Safety and Corrections
    NO. 2018-KH-1415
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Kevin ALEXANDER v. STATE of Louisiana
    NO. 2017-KH-1796
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Alexander v. State, 16-0053 (La. 5/12/17), 219 So.3d 327.


text:
    STATE of Louisiana v. Randy FINCH
    NO. 2017-KP-1898
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely. See La.S.Ct.R. X, § 5.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Herbert A. PIERRE, Jr.
    NO. 2018-KH-1573
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   GUIDRY, J., recused.


text:
    Keith KENNEDY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-KH-1489
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Joe STEPHENS
    NO. 2018-KH-1462
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Lutgardo SELVA v. STATE of Louisiana
    NO. 2017-KH-1454
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    Roberto LLOPIS, D.D.S. v. LOUISIANA STATE BOARD OF DENTISTRY, et al.
    NO. 2018-C-1618
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Bernis T. BROWN v. Darrel VANNOY, Warden, Louisiana State Penitentiary
    NO. 2018-KH-0201
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   GUIDRY, J., recused.


author: CLARK, J., recused.

text:
    STATE of Louisiana v. Leo Franklin LOONEY
    NO. 2018-KO-0298
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   CLARK, J., recused.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018-CC-1643
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Lee Anthony JACKSON
    NO. 2018-KH-1549
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


author: GENOVESE, J., would grant.

text:
    Dewayne MONTGOMERY v. GARRY LEWIS PROPERTIES
    NO. 2018-C-1585
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Jason M. ROE, Joshua A. Watson
    NO. 2018-KO-0562
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Patricia SPANN v. GERRY LANE ENTERPRISES, INC. D/B/A Gerry Lane Chevrolet, ABC and XYZ
    NO. 2018-C-1649
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered; not timely filed. See La.S.Ct.R. X, § 5(a).


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-690183
    No. 2018-BA-1187
    Supreme Court of Louisiana.
    December 17, 2018
    Rehearing denied.
   CLARK, J., would grant.

CRICHTON, L., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Larry LEWIS
    NO. 2018-KH-1497
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he Sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: HUGHES, J., would grant.

text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2018-CC-1427
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Corey TREAS v. Chantal KOERNER
    NO. 2018-CC-1891
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. William Bryant ARLT
    NO. 2018-KH-1439
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Michael HILL
    NO. 2018-KH-1597
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Mark A. CASSON
    NO. 2018-KH-1506
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Terrance MOUTON A/K/A Terrence Mouton v. STATE of Louisiana
    NO. 2017-KH-1927
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


author: WEIMER, J., would grant.

text:
    SUCCESSION OF Mary Lou THRASHER
    NO. 2018-C-0774
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Damien HOLLAND
    NO. 2018-KH-1514
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Corey Angelo WILLIAMS
    NO. 2018-KH-1534
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Dennis Ray DAVIS, Jr.
    NO. 2018-KH-1574
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Jessie Eugene SHELTON
    NO. 2017-KP-1389
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Joseph MORGAN
    NO. 2018-KO-0987
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


author: PERRET, Judge.

text:
    SUCCESSION OF Donald C. HODGE, Sr.
    Common Place Properties, L.L.C. and Ronald Granger v. Estate of Donald C. Hodge, Sr.
    CA 17-228 consolidated with CA 17-229
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017
    Thomas J. Gayle, Gayle Law Firm, L.L.C, P. O. Box 3190, Lake Charles, LA 70602, (337) 494-1220, COUNSEL FOR PLAINTIFFS/APPELLEES: Ronald L. Granger, Common Place Properties, L.L.C.
    Donald Carl Hodge, Jr., Attorney at Law, 4148 Palm St., Baton Rouge, LA 70808, (337) 794-8873, COUNSEL FOR DEFENDANT/APPELLANT: Estate of Donald C. Hodge, Sr.
    Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
   PERRET, Judge.

Defendant, the Estate of Donald C. Hodge, Sr., appeals a judgment of the trial court that granted a Motion to Enforce Judgment filed by plaintiffs, Common Place Properties, L.L.C. and Ronald L. Granger (hereinafter "Plaintiffs"). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

This opinion concerns two consolidated cases that have been before this court previously. In this court's prior opinion, Succession of Hodge , 16-185, 16-186 (La.App. 3 Cir. 6/1/16) (unpublished opinion), this court dismissed the appeals for not being designated immediately appealable, and recited the facts and procedural history, as follows:

These cases involve the succession of Donald C. Hodge, Sr., who died intestate on October 18, 2012. The succession proceeding has been consolidated with a separate lawsuit which Common Place Properties L.L.C. (Common Place), and its manager, Ronald Granger [Plaintiffs], filed against the estate of Donald C. Hodge, Sr..... Plaintiffs allege that Common Place[ ] owns a one-half interest in a rental house and a lot located on Orange Street in Lake Charles, Louisiana, and that the other one-half interest in the property was transferred by Common Place to Mr. Hodge on October 2, 2008. However, Plaintiffs maintain that the sale/transfer of the rent house and lot to Mr. Hodge should be rescinded on the ground that the purchase price was never paid. Plaintiffs also allege that in July of 2011, Common Place obtained a loan secured by the rent house and lot. Further, Plaintiffs allege that although Mr. Hodge was given $25,000.00 out of those loan proceeds, he never repaid any portion of the loan.
Additionally, Plaintiffs allege that in August of 2008, Mr. Hodge entered into a bond for deed contract for the acquisition of a hair salon located on Alamo Street in Lake Charles, Louisiana. Plaintiffs assert that although Mr. Hodge executed the bond for deed in his name personally and made most of the initial down payment for the hair salon, the parties intended that Mr. Hodge would transfer his interest in the salon to Common Place in exchange for Mr. Hodge being given an equity position in Common Place. It is further alleged that Plaintiff, Mr. Granger, managed the hair salon and that the revenue generated from the rental of salon space was supposed to be used to make payments towards a $50,000.00 balance owed under the bond for deed agreement.
Plaintiffs filed their lawsuit against Mr. Hodge's estate on June 9, 2015. By their lawsuit, Plaintiffs seek rescission of the sale of the rent house and lot to Mr. Hodge or, alternatively, an award of the purchase price; repayment of the funds advanced to Mr. Hodge from the proceeds of the 2011 loan; reformation of the 2008 bond for deed contract to reflect the parties' true intentions or, alternatively, payment of management fees for Mr. Granger's services; damages; and costs.
In response to Plaintiffs' lawsuit, the independent administrator of Mr. Hodge's estate filed an answer and a reconventional demand arguing that there is no valid evidence of a $25,000.00 loan being given to Mr. Hodge by Common Place, that Mr. Hodge is the full owner of the hair salon on Alamo Street, and that Mr. Hodge has a one-half ownership interest in Common Place and in the rent house and lot on Orange Street. The administrator also maintains that Mr. Hodge's estate is entitled to have the rent house on Orange Street sold pursuant to a lease-purchase agreement entered into by Common Place and the current occupants of the home. Further, the administrator contends that the estate is entitled to a monetary award from Plaintiffs because Mr. Granger[ ] converted funds and failed to accurately report money earned from the hair salon during his management of the salon. Finally, the administrator alleges that the estate is owed $5,000.00 plus profits from Mr. Granger[ ] as a result of an investment that Mr. Hodge made in a business known as the Cajun Fun Shop in November of 2011. In response to the reconventional demand arising out of the investment in the Cajun Fun Shop, Mr. Granger, filed an exception of prescription.
The administrator of Mr. Hodge's estate filed with the trial court a rule to show cause seeking to have Plaintiffs ordered to show cause why the estate should not be granted the relief requested in its reconventional demand. The administrator also filed some exceptions of prescription in response to Plaintiffs' lawsuit. To the extent that Plaintiffs seek to nullify the 2008 sale of a one-half ownership interest in the rent house and lot to Mr. Hodge and to nullify the 2008 bond for deed contract for the purchase of the hair salon, the administrator argues that Plaintiffs' claims are prescribed under La.Civ.Code art. 2032, which provides for a five-year prescriptive period for having a relatively null contract nullified. With regard to Plaintiffs' attempt to recover for the loan allegedly made to Mr. Hodge in July of 2011, the administrator asserts that Plaintiffs' claims are barred by the three-year prescriptive period set forth in La.Civ.Code art. 3494(3). Further, the administrator contends that the claim by Mr. Granger[ ] for reimbursement pay for management services provided at the hair salon is barred by the three year prescriptive period set forth in La.Civ.Code art. 3494(1).
Plaintiffs' lawsuit against Mr. Hodge's estate was consolidated with Mr. Hodge's succession proceedings on August 15, 2015, and a trial was held on October 13, 2015. On December 4, 2015, the trial court signed a judgment, which granted in part and denied in part the relief sought by Plaintiffs via their lawsuit and the relief sought by Mr. Hodge's estate via its reconventional demand, exceptions, and rule to show cause. The trial court found that the $25,000.00 that was given to Mr. Hodge out of the proceeds from the 2011 loan, which was secured by the rent house and lot, was, in fact, a loan to Mr. Hodge; however, the prescriptive period for Plaintiffs to collect on that debt has lapsed. The exceptions of prescription were denied 1) as to Plaintiffs' claims for nonpayment of the sales price for the rent house and lot on Orange Street; and 2) as to Plaintiffs' relative nullity claim pertaining to the purchase of the hair salon on Alamo Street via the 2008 bond for deed contract. The trial court ordered that, on the ground of mutual error, both the warranty deed for the purchase of the property on Orange Street and the 2008 bond for deed contract for the purchase of the hair salon on Alamo Street be reformed to reflect that the sole owner/purchaser of those properties is Common Place. With regard to the reconventional demand that the administrator of Mr. Hodge's estate filed seeking to have Mr. Granger repay the $5,000.00 investment Mr. Hodge made in the Cajun Fun Shop, the trial court dismissed that claim as prescribed. With regard to the reconventional demand whereby Mr. Hodge's estate seeks an accounting for Mr. Granger's management of the hair salon, the trial court reserved the right to address that issue at a later date and ordered the parties to make a reasonable effort to provide a financial accounting before raising that issue again.
The Administrator filed a motion for appeal on behalf of Mr. Hodge's estate on December 28, 2015. The trial court signed the order of appeal on January 6, 2016. The appeal record was lodged in this court on March 15, 2016.... [U]pon the lodging of the record in this appeal, this court issued a rule for Mr. Hodge's estate to show cause why the appeal should not be dismissed as having been taken from a partial judgment which has not been designated immediately appealable pursuant to La.Code Civ.P. art. 1915(B). The administrator for Mr. Hodge's estate filed a response to this court's rule to show cause order.

While these cases were on appeal, on April 14, 2016, the defendant filed a Motion for Clarification of Judgment requesting the trial court to specifically designate the December 4, 2015 partial judgment immediately appealable pursuant to La.Code Civ.P. art. 1915(B). Thereafter, on May 27, 2016, the trial court amended the December 4, 2015 judgment to include the proper certification language set forth in La.Code Civ.P. art. 1915(B), finding "there to be no just reasons for delay" and designating the judgment as final and immediately appealable. No appeal was taken from this May 27, 2016 supplemental and amending judgment.

Without having any knowledge of the May 27, 2016 supplemental and amending judgment, this court dismissed these appeals on June 1, 2016, and ruled that the December 4, 2015 partial judgment was not properly designated immediately appealable pursuant to La.Code Civ.P. art. 1915(B). In its opinion dismissing the appeals, this court noted, in dicta, "that Mr. Hodge's estate should wait and seek an appeal after the entire case has been adjudicated."

In May 2016, Plaintiffs filed a Motion to Enforce Judgment and Rule for Contempt, alleging that defendant's administrator refused to comply with the December 4, 2015 judgment that ordered it "to transfer, convey and assign any and all interest that the Estate of Donald C. Hodge, Sr.[,] may own in the Bond for Deed contract concerning the property situated at 601 Alamo Street to Common Place Properties, L[.]L[.]C." On November 17, 2016, after a hearing, the trial court granted the motion and ordered "that the Supplemental and Amending Judgment entered into in this matter on May 26 [sic], 2016[,] is a final judgment and susceptible to execution" and that "the Bond for Deed contract on 601 Alamo Street, Lake Charles, LA, has been unconditionally assigned to Common Place Properties, L[.]L[.]C." It is this judgment that is presently on appeal.

On appeal and in its sole assignment of error, defendant contends that the trial court erred in ruling that the May 27, 2016 supplemental judgment was final and susceptible to execution. Defendant argues that this court, in its June 1, 2016 opinion, found "that the partial judgment at issue should not be designated as a final judgment for purposes of an immediate appeal" and that "Mr. Hodge's estate should wait and seek an appeal after the entire case has been adjudicated." Thus, defendant suggests that the ruling of this court became the law of the case despite the trial court's issuance of a supplemental judgment on May 27, 2016.

Plaintiffs filed a Motion to Dismiss the present appeal, urging that defendant is attempting to untimely appeal the May 27, 2016 amended judgment. However, the appeal before us is taken from the November 17, 2016 judgment that addressed Plaintiffs' Motion to Enforce Judgment that was filed in the trial court. Although the issue presented involves matters contained in the May 27, 2016 judgment, the matter before us is from a second judgment on a separate action. Because we find the instant appeal is properly before us at this time, we deny Plaintiffs' Motion to Dismiss.

DISCUSSION:

The issue is whether the trial court erred in granting Plaintiffs' Motion to Enforce Judgment and ordering the May 27, 2016 judgment final and susceptible to execution. Louisiana Code of Civil Procedure Article 1915 B(1) (emphasis added) addresses partial final judgments, and states:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay .

"Once the delays for appeal have expired without action, the judgment is final and definitive." Petitjean v. City of Rayne , 04-768, p. 2 (La.App. 3 Cir. 11/10/04), 886 So.2d 1267, 1269 (citation omitted). Louisiana Code of Civil Procedure Article 1951 governs amendments to final judgments and provides: "[A] final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation." As stated by the Louisiana Supreme Court, "a judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment." Tunstall v. Stierwald , 01-1765, p. 4 (La. 2/26/02), 809 So.2d 916, 920 (citations omitted).

After a final judgment is rendered, "the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to: ... [e]xecute or give effect to the judgment when its execution or effect is not suspended by the appeal." La.Code Civ.P. art. 2088(A)(7). Thus, although " La. C.C.P. art. 1951 does not permit the trial court to substantively alter a final judgment even if the amendment merely expresses the trial judge's actual intention," a trial court does have jurisdiction to " 'give effect' to its prior judgment." Petitjean , 886 So.2d at 1269-70 (quoting McGee v. Wilkinson , 03-1178, p. 3 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554 ).

Applying these principles to the facts before us, we find that the May 27, 2016 partial judgment, which was designated immediately appealable by the trial court, is a final judgment. The parties do not dispute the fact that there was no appeal taken from this judgment. Subsequently, on November 17, 2016, when the trial court considered the Motion to Enforce Judgment, it properly limited the hearing to enforcing the May 27, 2016 judgment. Specifically, the trial court ruled in its November 17, 2016 judgment that the "May 26 [sic], 2016 [judgment] is a final judgment and susceptible to execution" and further noted that the "Bond for Deed contract on 601 Alamo Street Lake Charles" had "been unconditionally assigned to Common Place Properties, L[.]L[.]C." We find the language contained in the November 17, 2016 judgment was merely enforcing the May 27, 2016 judgment and did not substantively amend it. As such, we find no legal error in the trial court's November 17, 2016 judgment that granted the Motion to Enforce Judgment and its ruling that the May 27, 2016 judgment is final and susceptible to execution.

DECREE:

For these reasons, we affirm the November 17, 2016 judgment.

AFFIRMED.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Dustin R. MCGOWAN
    KA 17-623
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Thomas L. Lorenzi, Lorenzi & Barnatt, LLC, 518 Pujo Street, Lake Charles, Louisiana 70601, (337) 436-8401, COUNSEL FOR DEFENDANT/APPELLANT: Dustin R. McGowan
    Annette Fuller Roach, Roach & Roach, APLC, Post Office Box 1747, Lake Charles, Louisiana 70602, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Dustin R. McGowan
    Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, 33rd Judicial District Court, Post Office Box 839, Oberlin, Louisiana 70655, (337) 639-2641, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
   CONERY, Judge.

Defendant, Dustin McGowan, was charged by bill of information with possession of methamphetamine, possession of alprazolam, operating a vehicle while under the influence of alcohol, second offense, two counts of vehicular negligent injuring, and possession of drug paraphernalia. Defendant entered an open-ended plea of nolo contendere to the charge of possession of methamphetamine and the two charges of vehicular negligent injuring, with the remaining charges being dismissed. The trial court ordered a pre-sentence investigation report at the request of counsel and after a sentencing hearing, Defendant was sentenced to serve four years in the Department of Corrections with all but eighteen months suspended for possession of methamphetamine. He was placed on three years of supervised probation, and ordered to pay a $2,000.00 fine, subject to the conditions set forth in La.Code Crim.P. art. 895, and other special conditions. Upon release, Defendant was ordered to be placed on one year of home incarceration . On each charge of vehicular negligent injuring, Defendant was sentenced to serve ninety days in the parish jail to run concurrently with each other and concurrently with the sentence above. Defense counsel filed a motion to reconsider sentence, which was denied by the trial court. Defendant is before this court appealing his sentences. For the following reasons we vacate Defendant's sentences and remand to the trial court for resentencing.

FACTS:

On or about May 13, 2014, a vehicle driven by Defendant struck the rear of a school bus resulting in injuries that formed the basis of two charges of vehicular negligent injuring. Blood testing done pursuant to a search warrant revealed the presence of methamphetamine in Defendant's system. Methamphetamine residue was found in a smoking device in the vehicle.

ERRORS PATENT & PROCEDURAL ISSUE:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. First, there was a misjoinder of offenses in the bill of information. The bill of information charged Defendant with the following: Count (1) possession of methamphetamine, a violation of La.R.S. 40:967(C)(2) ; Count (2) possession of alprazolam, a violation of La.R.S. 40:969(C)(2) ; Count (3) driving under the influence of alcoholic beverages, second offense, a violation of La.R.S. 14:98 ; Counts (4) and (5) vehicular negligent injuring, violations of La.R.S. 14:39.1 ; and Count (6) possession of drug paraphernalia, a violation of La.R.S. 40:1023(C) and 40:1025.

Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances if the offenses joined are triable by the same mode of trial. Counts 1 and 2 were properly joined in the bill of information, but the remaining counts were misdemeanors, and joinder with Counts 1 and 2 was improper. La.Code Crim.P. art. 779. Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses as required by law. La.Code Crim.P. art. 495. Additionally, by entering an unqualified plea of nolo contendere, Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby , 338 So.2d 584 (La.1976) ; State v. Peters, 546 So.2d 829 (La.App. 1 Cir.), writ denied , 552 So.2d 378 (La.1989). Thus, this error is precluded from review.

Next, because the two counts of vehicular negligent injuring were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review rather than an appeal. La.Code Crim.P. art. 912.1.

Defendant specifically raises excessiveness of the misdemeanor sentences, and the two sentences are running concurrently with the felony sentence. Accordingly, this court finds it should not sever the misdemeanor convictions. Rather, in the interest of judicial economy, this court will address the issues involving the misdemeanor sentences as if the issue was before the court on supervisory writs. State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744. Because of the remand order, we will not address the merits of the alleged excessive misdemeanor sentences at this time.

ASSIGNMENT OF ERROR NOS. 1 & 2:

Defendant contends the trial court failed to adequately and sufficiently consider the aggravating and mitigating factors set forth in La.Code Crim.P. art. 894.1 and in failing to particularize the sentences to Defendant. Defendant additionally claims the trial court erred in relying on two prior DWI arrests for which the trial court had scant details and was unable to evaluate and examine the weight of the evidence as to each arrest. He notes that although evidence of unadjudicated criminal conduct can be admitted at sentencing, if useful, a full factual basis for the prior unadjudicated conduct should be presented.

At sentencing, the judge stated the following reasons before imposing Defendant's sentences (emphasis added):

There is [sic] probably a lot of people out there that would enjoy sentencing you under these circumstances to a long time. I don't-I don't get pleasure of it. I have the benefit of having over twenty years experience in doing criminal defense work. I appreciate, I understand that you have support and love for your family. I have read all of these-I have read the letters that were sent, seen the photographs that were submitted. I will make this comment because it was mentioned in here, a lot of people, evidently, on Facebook had some very nasty ugly things to say about you as a result of this. If-this is from the perspective that I also have to consider as well, if it would have been someone else who has-and of course this record shows that this is a fourth arrest for DWI, I know that there has been an expungement and a dismissal and a pre-trial diversion and all of that stuff, I don't know the facts of all that because for the expungement the records have been, I guess, expunged. But the record does show that this is a fourth arrest for DWI. Under those circumstances if somebody else, God forbid, would have run into a school bus with children or even worse maybe strike a kid getting off of the school bus, and if that child would have been a family member of yours, all of these people that are supporting of you would have been-very much assume a different position . My experience is-and I have no doubt I see this, they are all saying that you are a good person, a decent, kind, good person. But that is kind of the usual. And I am not saying anything otherwise. But I have experience that when something like this happens to a family member, you know they are wanting leniency. They want the Court to understand that this person is a good and decent person, where as [sic] everybody else is saying something different. I am gonna [sic] sentence you as follows. I want-this also concerns me, Mr. McGowan, I know that according to these reports and stuff you have changed, it seems like you are maturing, you are growing up. You are 30 years old. But Mr. McGowan, you just-got your girlfriend pregnant, and you don't have a job, you don't have transportation, and you didn't marry her. So, that kind of tells me that you still got [sic] some maturity issues as well, that you might need a little bit more growing up to do. I hope the best for you. The Court was inclined to sentence you, since this is a fourth arrest for DWI, the Court was inclined or considered sentencing you just like you received a fourth offense DWI. And a fourth offense DWI says ten to thirty years. Two years of that is not to be suspended. Five thousand dollar fine. That sentence would be a reasonable sentence under your circumstances, assuming that you were guilty of those other three DWIs that you were arrested for. I don't know that. I am not making a comment whether you were guilty or not. I will make this observation. If this is the fourth time that you have been arrested for a DWI, how many dozens and dozens of time [sic] have you gotten behind the wheel impaired and not gotten caught. The Court is not gonna [sic] sentence you however, as a fourth offense DWI, but the Court will sentence you for the most part as if this were a third offense DWI.

For possession of methamphetamine, the court sentenced Defendant to four years with the Louisiana Department of Corrections with all but eighteen months suspended. Upon release from physical custody, Defendant was ordered to serve three years of supervised probation with one year of home incarceration. He was ordered to pay a $2,000.00 fine and court costs, but no payment schedule was ordered.

Defense counsel objected to the court's reference to Defendant's lack of a job and transportation, and also that he got his girlfriend pregnant without marrying her. Counsel also directed the court's attention to the 1099 forms provided to the court to show that Defendant was in fact employed. The court, after noting that the employment was with Defendant's father, stated, "I may have misspoken." Defense counsel further noted that Defendant has a vehicle, but because his driver's license was suspended, his ability to obtain other gainful employment was adversely affected. Defendant was also unable to pursue out-patient treatment because he had no driver's license. Finally, defense counsel noted that Defendant is in a committed relationship and raising a child with his girlfriend, and there should have been no reason why the two had to marry for Defendant to receive a different sentence from the court.

Counsel further contended it was unreasonable to sentence Defendant as though he were a third DWI offender. First, his DWI charge in this case had been dismissed, as there was no alcohol in his system. Second, even assuming he could have been charged with DWI due to the drugs in his system, at most he would have been a second offender. To this, the court responded:

I am not sentencing him as a third offender. What I am saying is, that based on three prior arrest[s] that has something to do with the sentence he received. The Court did not give him a suspended sentence. And I am try[ing] to articulate some of the reasons why I have not done that. I have taken into consideration prior activities. And the Court does feel that-that perhaps there is a showing of irresponsibility, I know, that by some of his actions since he has been arrested.

Defense counsel then argued that the trial court cited Defendant's lack of responsibility in imposing the sentence and that irresponsibility is not an appropriate sentencing factor under La.Code Crim.P. art. 894.1. Further, for the trial court to follow the sentencing provision of the third offense DWI statute as a basis for the sentence imposed for a small amount of methamphetamine deprives Defendant of the presumption of innocence regarding any of the prior charges for which he was not convicted. Even if the court believed Defendant would not respond favorably to probationary treatment, it disregarded evidence that Defendant went through rehabilitation. Also, counsel noted that some of Defendant's toughest critics were now his biggest supporters. Finally, counsel argued that Defendant should not have been punished based on people's fears, as articulated by the trial court, but only for his actual conduct, which in this case resulted in minimal or negligible injuries for which the damages had been paid. The court responded by noting that an eighteen month sentence is in the lower range and some of the reasons Defendant relied on were aggravating circumstances which did not support a fully suspended sentence. The court gave no additional reasons prior to imposing maximum misdemeanor sentences for the two counts of vehicular negligent injuring, to run concurrent with the felony sentence for possession of methamphetamine.

At the hearing on the motion to reconsider sentence, the court explained that his comment regarding Defendant's irresponsibility stemmed from the irresponsibility of bringing a child into the world when facing pending charges and pleading straight up. Under these circumstances, there is a possibility of jail time which would result in the offender being unavailable to care for the child. The court again noted that it was not sentencing Defendant for a third offense DWI, acknowledging that this case does not require proof of the two prior offenses beyond a reasonable doubt. The judge explained that he was aware that the first DWI was expunged and another was dismissed. However, he felt the DWI penalties take into account the addiction issue when a person continues operating a motor vehicle. Thus, he felt it was fitting that Defendant be sentenced similarly to what is required for a DWI third offense.

Defendant complains of the trial court's following actions: disregarding letters of support because they were written by family and friends; considering negative comments made on Facebook when Defendant had no opportunity to confront those making the comments; discrediting Defendant's wages because they were earned by working for his father; the court's consideration of Defendant's past arrests without a full factual basis for those arrests in the record; the public's "face book outcry" based on concerns of what could have happened; and the court's perception that Defendant was immature and irresponsible due to his lack of transportation, lack of a job, and fathering a child out of wedlock.

Rather, Defendant contends that the trial court should have considered in mitigation the small amount of methamphetamine residue found on a smoking device in Defendant's truck, Defendant's strong family and friends support system, his need to support his infant son, his lack of prior felony convictions, steps taken to obtain treatment for substance abuse, his acceptance of responsibility by entering a plea, the nominal damage and minimal injury to the victims, the lack of a civil suit filed as a result of the accident, and the negative random drug screens between his drug treatment program and sentencing. Defendant contends the trial court erred in considering as aggravating factors the situation concerning Defendant's child and the child's mother instead of viewing them as mitigating factors, i.e., that becoming a father has made Defendant a changed man; that Defendant did not abandon his girlfriend or demand she abort the unborn child; and that he has made a home for his family and takes available work to support his family.

Defendant also points out that the Louisiana Legislature made significant changes in the 2017 regular session to provide that possession of less than two grams of a Schedule II drug was now imprisonment with or without hard labor for not more than two years, reduced from the maximum period of five years at hard labor applicable to Defendant.

In this case, a "near maximum" sentence was imposed for possession of methamphetamine residue found on a smoking device in defendant's vehicle. Defendant argues that the trial court failed to specifically articulate the reasons for the sentences imposed under La.Code Crim.P. art 894.1, and failed to show it gave adequate consideration to the mitigating factors. Defendant contends his sentence should be set aside and the case remanded for resentencing. We agree.

In State v. Spencer , 00-1335, pp. 10-11 (La.App. 3 Cir. 2/28/01), 781 So.2d 780, 788, a case cited by Defendant in his brief, this court stated:

As we stated in our first opinion, the trial court's wide discretion in imposing a sentence within statutory limits is subject to an abuse of discretion standard on review. [ State v. Hopkins , 96-1063, p. 6 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541 ]. Additionally, "[i]f there is an adequate factual basis for the sentence contained in the record, the trial court's failure to articulate every circumstance listed in Article 894.1 will not require a remand for resentencing." Id.
The record before us contains a significant amount of factual evidence for the trial court to consider in sentencing the defendant. However, as is evidenced from our findings in our first opinion, much of that evidence is mitigating in nature. It is simply not clear from the information before us which factors the trial court relied on in determining that this crime justifies imposition of the maximum incarceration sentence. While it can be argued that the effect of the sentence imposed is significantly diluted by the trial court's suspension of all but three years, the defendant still faces its maximum effect if he does not respond affirmatively to supervised probation.
As we stated in [State v. ] Manuel [98-0079 (La.App. 3 Cir. 10/28/98) ], 722 So.2d [31] at 35 :
[C]ompliance with La.Code Crim.P. art. 894.1 is not an academic exercise. Among the benefits of the trial court's compliance is that the reviewing court becomes aware of the trial court's specific factual findings relied upon in the sentencing process. Such awareness provides the reviewing court with the trial court's credibility analysis as well as other factors which may not appear from the cold record. Mere conclusory comments are of no help and cause the reviewing court to evaluate the sentencing issue in a vacuum.
Our obligation on review is not to impose sentence but to remand to the trial court for resentencing. La.Code Crim.P. art. 881.4(A). If we choose to do so, we "may give direction to the trial court concerning the proper sentence to impose." Id. We do find it necessary to again set aside the defendant's sentence and remand this matter to the trial court for resentencing. In doing so, we also feel compelled to give the trial court direction in resentencing. However, we wish to make it clear that we do not necessarily require the trial court to impose a lesser sentence. Rather, we direct the trial court to resentence the defendant to a sentence it considers appropriate and, in doing so, to state for the record both the considerations and factual basis taken into account in the sentencing. We direct the trial court to specifically consider the grounds set forth in La.Code Crim.P. art. 894.1(B) based on the factual basis it determines applicable.

Defendant additionally contends the trial court erred in sentencing him as though he had been convicted of third offense DWI when he did not plead guilty to DWI and neither of the two prior arrests for DWI were proper predicate offenses which would subject him to sentencing as a third offender. In sentencing a defendant, a court may consider prior arrests and nolle prossed offenses. State v. J.S. , 10-1233 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185.

However, in support of his position that consideration of the prior DWI arrests was improper in the absence of a full factual basis for each arrest, Defendant cites the dissent in State v. Daye , 13-1456 (La.App. 3 Cir. 5/7/14), 139 So.3d 670. In Daye, the dissenting judge noted:

Because one of the factors in this case is the relatively minor nature of the crime of possession of marijuana second, in order to withstand constitutional scrutiny, the sentence imposed on remand must be based on evidence that more completely and convincingly demonstrates why this defendant, for comprehensive and clearly articulated reasons, deserves the sentence the trial judge in his discretion may finally impose under the habitual offender law. On remand, the prosecutor, if he chooses to do so, should be given every opportunity to put on legally admissible and relevant evidence of the dangerousness of the defendant, including unadjudicated criminal charges and conduct, the aggravating circumstances of this crime, as well as factual evidence of all the underlying felony convictions upon which the habitual offender charge was based. On remand, the defendant should also be given every opportunity to put on mitigating evidence. The trial judge's decision, as required by law, but especially in a case such as this, should be based on factual findings after a review of all the sentencing factors listed under La.Code Crim.P. art. 894.1, and should include clearly articulated reasons for the sentence eventually imposed within the legislatively approved sentencing range. See State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672 ; State v. Todd , 03-1040, (La.App. 3 Cir. 2/4/04), 866 So.2d 1040, writ denied , 04-588 (La. 7/2/04), 877 So.2d 143.
Under La.Code Crim.P. art. 894.1(B)(7), lack of prior criminal history can be considered as a mitigating factor. As a corollary, in State v. Brown , 410 So.2d 1043 (La.1982), the supreme court held that evidence of unadjudicated criminal conduct can be admissible at sentencing. In this case, the state argued at sentencing that the defendant had been indicted by the grand jury for second degree murder, a factor that could be extremely relevant in sentencing. However, no evidence was introduced at sentencing on this issue and the trial judge said he did not consider that charge. Though evidence of unadjudicated criminal conduct is admissible, in order to be useful and persuasive, a full factual basis for that conduct should be presented, and the trial judge should then closely evaluate and carefully examine the weight of the evidence on that issue.See Brown , 410 So.2d 1043 ; State v. J.S. , 10-1233 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185 ; State v. Turner , 12-[668]688 (La.App. 3 Cir. 12/5/12), 103 So.3d 1258 ; State v. Billingsley , 13-11 (La.App. 3 Cir. 10/9/13), 123 So.3d 336.

Daye , 139 So.3d at 678. (emphasis added). The Louisiana Supreme Court adopted the reasoning of the dissent in its 2015 review and reversal of Daye .

In this case, the trial court considered evidence of prior DWI charges as aggravating factors with no factual basis in the record for these prior charges. The court focused on an expunged DWI with no evidence of the factual basis for the charge. Likewise a DWI offense while Defendant was a minor likewise was considered with no factual basis in the record as to what occurred. Defense counsel argued that particular case had been dismissed in exchange for community service as defendant had a blood alcohol level below the legal limit. We note that the charge of operating a motor vehicle while under the influence of alcohol in this case was also dismissed. Defendant's blood test results showed no alcohol in his system, and there was no expert testimony as to the level of methamphetamine in Defendant's system and what effect, if any, it may have had on Defendant's driving in this case. While the record reflects that Defendant did hit the bus and appeared to the officer to be unsteady on his feet, there was insufficient evidence to determine that Defendant was guilty of driving while intoxicated, and the state dismissed that charge in this case.

In reviewing the sentence in this case, we find that the trial judge may have placed too much emphasis on what "could have happened," and improperly considered prior DWI arrests, one which had been expunged, and one as a minor which was dismissed. There was no proper factual basis as to any of the prior charges as required by State v. Daye , 14-1191 (La. 02/27/15), 162 So.3d 371.

Based on the foregoing reasons, we find that the trial court did not adequately consider and make proper findings as to the aggravating and mitigating factors provided by La.Code Crim.P. art. 894.1. We vacate Defendant's sentences, and remand the case to the trial court for resentencing. In imposing the sentence the trial court considers appropriate, it must state for the record both the considerations and factual basis taken into account at the sentencing for all applicable aggravating and mitigating factors provided by law. The penalty provision in effect at the time of the commission of the offense applies to this case in principle. State v. Wilson , 02-700 (La.App. 3 Cir. 12/18/02), 833 So.2d 560, writ denied , 03-216 (La. 5/2/03), 842 So.2d 1100, cert. denied , 540 U.S. 952, 124 S.Ct. 393, 157 L.Ed.2d 285 (2003). Though not required to do so, the trial court is permitted to consider the ameliorative changes enacted by the 2017 amendment to the penalty provision in keeping with the spirit of the reforms articulated. It may likewise consider as a mitigating factor whether Defendant has been in drug treatment and/or has been drug free since the incident in question.

ASSIGNMENT OF ERROR NO. 3:

Defendant's third assignment of error contends that his sentence for possession of methamphetamine is indeterminate in that conditions of home incarceration were not imposed. We agree. This court notes that at resentencing, if home incarceration is ordered, the trial court must comply with all of the requirements set forth in La.Code Crim.P. art. 894.2.

Defendant additionally claims his sentences are excessive in that they are nothing more than needless infliction of pain and suffering. This claim is rendered moot by our order vacating Defendant's sentences and remanding for resentencing.

CONCLUSION

Defendant's sentences for possession of methamphetamine and vehicular negligent injuring are hereby vacated and this case is remanded for resentencing by the trial court to sentences it considers appropriate in accordance with the views expressed herein, stating for the record both the considerations and factual bases taken into account in the sentencing in accordance with La.Code Crim.P. art. 894.1 and the decision in Daye . Further, if the trial court once again chooses to impose a sentence that includes home incarceration, the trial court must comply with all of the requirements set forth in La.Code Crim.P. art. 894.2. Additionally, we note that if payments of a fine and court costs are imposed as conditions of probation, a payment plan must be established by either the trial court or the Department of Probation and Parole with approval by the trial court. See State v. Arisme , 13-269 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259.

SENTENCES VACATED, REMANDED FOR RESENTENCING.

      Information regarding the presence of methamphetamine in Defendant's system and the residue in his vehicle was obtained from the sentencing transcript. The toxicology report provided in discovery indicated the presence of Diazepam, Nordiazepam, and Methamphetamine.


author: KYZAR, Judge.

text:
    Donna KEEVEN v. WEN-STAR, INC., et al.
    17-453
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Michael W. Robinson, Pucheu, Pucheu & Robinson LLP, P.O. Box 1109, Eunice, LA 70535-1109, (337) 457-9075, COUNSEL FOR PLAINTIFF/APPELLANT: Donna Keeven
    Eric D. Burt, Sidney W. Degan, III, Degan, Blanchard & Nash, 5555 Hilton Avenue, Suite 620, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANTS/APPELLEES: Wen-Star, Inc., Wen-Star of Louisiana, Inc. d/b/a Wendy's, Amtrust North America, Inc.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   KYZAR, Judge.

In this slip and fall liability case, the plaintiff, Donna Keeven, appeals the judgment of the trial court granting summary judgment in favor of the defendants, Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc. For the following reasons, we reverse and remand.

DISCUSSION OF THE RECORD

On August 26, 2013, Ms. Keeven entered a Wendy's fast-food restaurant, located on Ambassador Caffery, in Lafayette, Louisiana. After entering, she turned to the right and walked down the hall in the direction of the ladies' restroom. However, before she reached door, her feet slipped out from underneath her, causing her to fall to the floor. On August 22, 2014, Ms. Keeven filed a petition for damages against Wendy's Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc., as insurer (collectively referred to as "Wendy's"), seeking damages for injuries she suffered as a result of this incident. In her petition, she alleged that she slipped and fell due to "water and/or other liquid(s) on the floor, which she was later informed was condensation from the air conditioning unit, of which condition the employees and/or management were aware or should have been aware."

After answering Ms. Keeven's petition, Wendy's filed a motion for summary judgment, asserting that no genuine issue of material fact existed and that Ms. Keeven could not meet her burden of proving that Wendy's created or had actual or constructive notice of the allegedly unreasonably dangerous condition as required under La.R.S. 9:2800.6. Ms. Keeven opposed the motion. Following a February 6, 2017 hearing on the motion, the trial court granted summary judgment in favor of Wendy's and dismissed Ms. Keeven's claims with prejudice. A written judgment was rendered by the trial court on February 23, 2017. It is from this judgment that Ms. Keeven appeals.

On appeal, Ms. Keeven raises three assignments of error for our review:

1. The trial court erred in granting the Motion for Summary Judgment, dismissing all claims of the Plaintiff-Appellant.
2. The trial court erred in concluding that there was insufficient evidence which created an issue of fact, which should have been determined by the trier of fact, taking into account the credibility of Ms. Keeven, Amanda Bob, persons working for Wendy's and whether there was spot mopping meant to remove the extra slippery substance on the floor prior to Ms. Keeven exiting the restroom, and whether the manager did acknowledge in an admission against interest to Ms. Keeven that the air conditioner had been leaking.
3. The [trial] court erred in imposing the same burden on Ms. Keeven as those persons who cannot identify the substance on the floor, when the issue in this case was not whether a substance on the floor was left by a customer, but was a substance believed to have originated from actions and/or inactions of the defendant store owner (In other words, the trial [court] erred by analyzing the Motion for Summary Judgment as if Ms. Keeven slipped on a foreign substance left by a customer, in requiring her to identify precisely such substance, and provide evidence showing that there had been inadequate inspections and/or inadequate cleanups of such items left by another customer.)

Louisiana Code of Civil Procedure Article 966 provides that summary judgment procedure is favored and that it "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La.Code Civ.P. art. 966(A)(2). It further provides that summary judgment "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Civ.Code art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

In Smitko v. Gulf South Shrimp, Inc. , 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755, the supreme court set forth the governing law relative summary judgment and our appellate standard of review thereof, as follows:

Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910 ; Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 ; Duncan v. USAA Ins. Co. , 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 ). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines , 876 So.2d at 765-66.

In Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam) (alteration in original), the supreme court stated:

We review a district court's grant of summary judgment de novo , viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if "there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law." La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor.

To succeed in a negligence claim against a merchant, La.R.S. 9:2800.6(B) requires that a plaintiff prove that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice [ ] of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wendy's introduced Ms. Keeven's petition and her deposition testimony in support of its motion for summary judgment. In her deposition, Ms. Keeven testified that after entering Wendy's, she turned to the right and was walking down a hall to the ladies' restroom. She stated that she lost her balance when she was in front of the door and fell due to a slippery substance on the floor. Ms. Keeven testified that she yelled as she fell onto her right side. She stated that she sat on the floor for a few minutes and then she got onto her hands and knees and pulled herself up until she was standing. Once she was standing, she stated that she walked into the restroom, feeling disoriented. She said that Ms. Bob came in and checked on her and asked to speak with her after she exited the restroom.

Ms. Keeven testified that when she exited the restroom, she saw a male employee with a mop, a bucket, and a wet floor sign standing in the general area of her fall. As she exited the restroom, she stated that she walked slowly, more aware of the condition of the floor, and that her tennis shoes made a squeaking sound, as though either moisture or a sticky substance was on the floor. When she sat down at a table with Ms. Bob, Ms. Keeven testified that she asked her if there was a solution on the floor. She said that Ms. Bob then volunteered that Wendy's had experienced trouble with the air conditioner, which may have caused moisture to drip on the floor.

Ms. Keenen testified that there was sufficient light in the hallway, although the area was not as bright as the dining room. She stated she was looking at the door of the restroom when she was walking down the hall and that she did not see any water on the floor or a warning cone. Ms. Keeven said that she did not notice anyone mopping when she arrived at the restaurant and that it was only after she exited the restroom that she saw the male employee mopping in the area of her fall. She further stated that she neither knew what substance caused her to fall nor how long it had been on the floor of the restaurant. She said that her clothes did not get wet as a result of her fall.

In opposition to Wendy's motion for summary judgment, Ms. Keeven, in addition to her deposition testimony, introduced her affidavit; Ms. Bob's deposition testimony and handwritten statement; the accident report completed by Ms. Bob; a handwritten statement by Wendy's employee, Ikara Brown; and the interrogatories propounded to Wendy's on October 29, 2015.

Ms. Keeven's affidavit mirrored her deposition testimony. She stated that the accident occurred "when both of her feet suddenly and violently, and without any warning, went out from underneath her, such that causing her to land with great force on the floor." She stated that she slipped on something that was extremely slippery, which she said could not have been water, and that after she exited the restroom, someone was spot mopping in the general vicinity of her fall. She said that this person had finished mopping by the time she finished speaking to Ms. Bob, and did not continue mopping the entire restaurant. Ms. Keeven stated when she asked if the floor had recently been mopped because her shoes squeaked while she was walking, Ms. Bob "volunteered without any prompting that the slippery substance on the floor was probably from the air conditioner unit, which had been leaking in that area[.]"

Ms. Bob testified that Ms. Keeven's accident occurred between 10:00 and 11:00 a.m., while she was outside doing a walk-through of the restaurant's surroundings. She stated that she was notified of Ms. Keeven's accident by Ikara Brown, a Wendy's employee, who was on break. She stated that when she first walked back into the restaurant, she noticed a yellow warning cone at the beginning of the hallway. She stated that the cone, which was waist high and stated "caution, wet floor," had been in place since the floors were mopped between 7:00 and 8:00 a.m. Ms. Bob testified that she, as the general manager of the restaurant, was responsible for mopping the floor after she arrived at work at 7:00 a.m.

Ms. Bob testified that Ms. Keeven was in the restroom, so she knocked on the door and asked her if she was okay. She stated that Ms. Keeven, who was standing near the sink, told her that she had slipped and fallen. When she again asked her if she was okay, she stated that Ms. Keeven said that she was okay, but repeated that she had slipped and fallen. She stated that she then exited the restroom and told Ms. Keeven through the door that she was going to get an accident report and asked her to wait for her in the dining room.

Ms. Bob testified that after she stepped back into the hall, she observed that the hall floor was dry and then knelt and touched the tile floor in the hall and at the entrance to the restroom, both of which, she said, felt normal. While retrieving the accident report, she stated that she called her district manager, Bobby Dunning, to report the incident. Once she returned to the dining room, Ms. Bob testified that she set down with Ms. Keeven and filled out the accident report based on what Ms. Keeven told her. She stated that she did not ask and Ms. Keeven did not say what caused her to fall. She said that she wrote on the report that the floor where Ms. Keeven fell was not wet, which was based on her own observation.

Ms. Bob testified that there was nothing about Ms. Keeven's condition to indicate that she had fallen. She stated that Ms. Keeven was wearing slippers at the time of her fall. She said that the restaurant's floor was made of tile, and she denied that a Wendy's employee spot mopped the floor after Ms. Keeven fell. Ms. Bob testified that she wrote her statement and had Ms. Brown write a statement once Ms. Keeven left. She stated that she asked but that no other employees had witnessed the accident. She said that Ms. Brown, who was in the dining room and heard Ms. Keeven yell, indicated that an unidentified departing customer helped Ms. Keeven up, but that the customer had already left.

Ms. Bob testified that she did not recall discussing the air conditioner unit with Ms. Keeven, nor did she recall there being any leakage from the air conditioner unit in the hall. She explained that there are no air vents in the hall. She stated that if the restaurant experiences air conditioning problems, the manager on duty sends out a work order to a Wendy's maintenance technician. Ms. Bob testified that Wendy's has one maintenance technician in Lafayette, who works on all problems. However, she stated that the district manager or the maintenance technician may decide to use an outside vendor if the maintenance technician is unavailable. Although she first stated that Wendy's experienced no air conditioner problems in the summer of 2013, she then qualified that by stating that she could not recall any problems. She further said that she thought she would have remembered if the air conditioner unit leaked and caused the floor to become slippery.

Ms. Bob testified that as the manager, she completes accident reports using the same form for employees and customers. She stated that she fills in the reports based on what the employee/customer reports and based upon observations she makes from her own investigations. She stated that she also obtains statements from eye-witnesses. Ms. Bob testified that there were no surveillance cameras in the hall where Ms. Keeven fell, and she did not know if there were surveillance cameras in the entrance areas. If there were, she stated that the monitors would be located at the district office. She further admitted that she did not take photographs of the area where Ms. Keeven fell. She said that she only takes photographs of an accident site if told to do so by her district manager. In this instance, she said that she did not consult with her district manager about the need for photographs. Ms. Bob testified that there were no other falls by customers in the summer of 2013.

The August 26, 2013 accident report, prepared by Ms. Bob, describes Ms. Keeven's injury as "Slip down on way to restroom. She said she twisted her back & hurt her knee." The description of the incident states:

Customer come in the restaurant to use restroom, and on her way there, she slip down. She said she twisted her back and hurt her knee. Customer stated she climbed back up on her knees. Floor was not wet.

In her August 26, 2013 statement, Ms. Bob stated that after she was notified of Ms. Keeven's fall, she entered the restaurant to check on her. She stated:

When the customer exited the restroom I asked if she was ok, and if she needed help. She said no, but do an accident report, which I would do anyway. Upon doing the report, customer stated she hurt her back, and her knee. I looked at the area, there was no water on the floor, and a wet floor sign was visible @
the front door entrance. The floor was mopped @ 7:30 AM, and wet floor signs were just left out until after lunch. Customer left, and came back in .... Also during our conversation, the customer told me that this is like a car accident, you don't feel the pain until a few days later. I looked at her knees, and there was no redness or bruising. She said she slid on her hands, but still didn't see any redness or bruising.

In her August 26, 2013 statement, Ms. Brown stated in part:

I was on break and saw the customer walk in the store. She was on the way to the bathroom and I heard her holler. When I looked up the customer was on the floor. I went to assist her, but another customer helped her up then she left. At that time I looked at the floor to see how or why she fell and she went into the bathroom. The floor wasn't wet and she should have saw the yellow wet floor sign that had been there since 7:30 this morning.

In granting judgment in favor of Wendy's, the trial court stated the following during its oral ruling at the hearing on the motion for summary judgment:

I guess my question is, the dispute in facts, if, in fact, the plaintiff can show that they mopped the area, was mopping the area after she comes out of the bathroom, she sits down, and then the dispute is whether the manager says, yes, we had an air conditioner problem, and the plaintiff says she told me she did.
But I guess my concern is just having a conversation with the manager is not enough, [counsel]. But if you can show that there was mopping and/or there was [an] air conditioner problem, then I think it's a different issue. But if you can't, a he said/she said isn't enough in a slip and fall.

After finding that Ms. Keeven had no evidence, other than her own testimony, to show that a Wendy's employee mopped the area of her fall, the trial court granted summary judgment in favor of Wendy's.

In deciding in Wendy's favor, we find that the trial court, rather than finding that no genuine issue of material existed, evaluated the evidence and placed a heightened burden of proof on Ms. Keeven, that of whether she would be successful at trial. However, viewing all reasonable inferences in a light most favorable to Ms. Keeven, a finder of fact could, based on her testimony that she slipped and fell, that the manager told her that there had been an air conditioner leak in that area, and that a Wendy's employee mopped the area immediately after her fall, find that genuine issues of material fact do exist. This is clear based on the trial court's own admission that there was a dispute in the facts and its statement that this was a "he said/she said" issue. Thus, resolving all doubt in favor of Ms. Keenen, we find that the granting of the motion for summary judgement was not warranted. Accordingly, we reverse the judgment of the trial court in favor of Wendy's and remand the matter for further proceedings.

DISPOSITION

For the foregoing reasons, the judgment of the trial court in favor Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc. is reversed, and the matter is remanded for further proceedings. The costs of this appeal are assessed to Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc.

REVERSED AND REMANDED.

      "Constructive notice" requires the plaintiff to prove that "the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La.R.S. 9:2800.6(C)(1).

      Although the interrogatories and requests for the production of documents were submitted in support of Ms. Keeven's opposition, the answers to the interrogatories were not included.