author: COX, J.

text:
    Mary T. "Terry" BAKER, in her Official Capacity as Assessor for Union Parish, Plaintiff-Appellee v. TENNESSEE GAS PIPELINE COMPANY, Defendant-Appellant
    No. 51,756-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    MILLING BENSON WOODARD L.L.P. By: Hilton Sutton Bell, Counsel for Appellant, Southern Natural Gas Company
    BRIAN ANDREW EDDINGTON, Counsel for Appellee, Mary T. "Terry" Baker, in her official capacity as Assessor for Union Parish
    ROBERT W. HALLACK, Counsel for Appellee Dodie Eubanks, Clerk of Court
    ROBERT D. HOFFMAN, JR., Counsel for Amicus Curiae Louisiana Tax Commission
    Before WILLIAMS, STONE, and COX, JJ.
   COX, J.

Appellant, Southern Natural Gas Company ("Southern"), appeals a judgment from the Third Judicial District Court, Parish of Union, State of Louisiana, wherein the trial court rendered a judgment in favor of Appellee, Mary T. Baker ("Baker"), granting the Clerk of Court's motion to impose court costs in the amount of $49,516.28, and an additional $6,000 in attorney fees. Southern prays that the district court's ruling be reversed and vacated, as it argues that the assessment of costs and attorney fees was an abuse of discretion. Southern contends that the costs of this appeal should be assessed against the Union Parish Tax Assessor. For the following reasons, we affirm the rulings of the district court.

FACTS

Southern is a corporate affiliate that provides natural gas storage, transportation, and balancing services in Louisiana and in interstate commerce. Its property is classified as "public service property" under La. R.S. 47:1851 and is thus subject to assessment at 25% of fair market value.

In the 1990s, ANR (Administration of Natural Resources) filed suits alleging that the Louisiana Tax Commission ("LTC") was treating other competing pipelines as though they were not public service property, i.e., assessing their property at only 15% and applying depreciation. Tennessee Gas Pipeline and Southern joined the suits in 2000 through 2003. The cases were later consolidated.

After a trial on the merits in 2005, the 19th Judicial District Court found that the LTC violated the taxpayers' rights to uniform taxation; however, the court rejected the taxpayers' claims for refunds. Instead, it ordered that the taxpayers' property be reassessed by parish assessors at 15% of fair market value, employing the same method used for the preferred companies.

Southern appealed, claiming it was entitled to a refund, not an assessment. The First Circuit Court of Appeal affirmed the district court's ruling, and both the Louisiana and United States Supreme Courts denied writs. When this judgment became final, the LTC formally ordered assessors to reassess the taxpayers' property.

On May 17, 2006, Southern filed its reassessment returns with the assessors of Ouachita, Union, and Lincoln Parishes. Southern reported the depreciated replacement cost of its property and requested a reduction in value for obsolescence. After a hearing in October 2009, the LTC ruled that the assessors had failed to adjust the fair market value for obsolescence, resulting in incorrect valuation and an abuse of discretion. The LTC ordered the assessors to reduce the valuations. Southern lodged an appeal in the 19th Judicial District Court.

On November 23, 2009, the assessors of Ouachita, Union, and Lincoln Parishes filed petitions for judicial review pursuant to La. R.S. 47:1998(A) and (D). Southern then filed the following exceptions: lis pendens, improper venue, lack of subject matter jurisdiction, no right of action, no cause of action, and prematurity. The district courts denied all exceptions. Southern applied for writs and a stay order, which this Court consolidated and denied on June 17, 2010. The Louisiana Supreme Court also denied writs and the stay.

A hearing was held on August 5, 2010, and the Third Judicial District Court found that there was no basis for the LTC to conclude that Baker, the Assessor for Union Parish, abused her discretion in denying Southern's request for reduction in value for obsolescence. The district court stated that the LTC exceeded its authority and reversed the previous rulings.

Southern appealed, challenging the ruling on the merits and re-urging its earlier exceptions. On April 13, 2011, this Court affirmed the decision on both the merits and exceptions in Jones v. Southern Natural Gas Co., 46,347 (La. App. 2 Cir. 4/13/11), 63 So.3d 1080, and the Louisiana Supreme Court denied writs on September 23, 2011, and reconsideration on November 4, 2011.

On August 18, 2011, the Union Parish Clerk of Court filed a motion to impose court costs, including attorney fees. On November 17, 2011, the Third Judicial District Court orally assessed costs against Southern. It did not hear the issue of attorney fees, as one party was not prepared to proceed on the issue at that time. The parties agreed that the issue would be submitted through filings without the necessity of a court hearing.

The parties submitted the judgment assessing courts costs, but, before the district court could sign the judgment, the Louisiana Supreme Court issued a stay across the State in all of these types of tax proceedings. At a conference call thereafter, all parties agreed that the judgment as to costs would not be signed nor any action taken with respect to the issue of attorney fees until the stay was lifted.

The district court was not notified that the stay was lifted and was unable to locate anything filed in the record indicating that the stay was lifted; however, all parties to the action agreed that the stay had been lifted. On June 27, 2016, the district court entered its order and written reasons assessing costs against Southern, but ordered additional briefs on the issue of attorney fees.

On October 27, 2016, the district court entered a final judgment ordering Southern to pay the Clerk of Court $49,516.28 in costs, and an additional $6,000 in attorney fees. In its reasons for judgment, the district court stated that it found Southern's arguments to be without merit. It noted that the prior rulings and judgments in favor of the Assessor were final judgments.

Southern now appeals, setting forth seven assignments of error: (1) the district court failed to recognize it lacked subject matter jurisdiction to adjudicate the Assessor's action for judicial review and later failing to hold that its judgment in favor of the Assessor was an absolute nullity; (2) the district court failed to recognize that Southern did not incur the costs it was ordered to pay; (3) the district court failed to find that Southern was, in the end, the prevailing party; (4) the district court failed to recognize that the Clerk's claim for costs had been abandoned and was prescribed; (5) the district court failed to find that the imposition of costs upon Southern was inequitable and unjust; (6) the district court failed to find that the Clerk's claim for costs was grossly excessive; and, (7) the district court erred in finding that the Clerk was entitled to an award of attorney fees.

DISCUSSION

Subject Matter Jurisdiction

Southern alleges that the Third Judicial District Court lacked subject matter jurisdiction to adjudicate the Assessor's action for judicial review. Southern's exception of subject matter jurisdiction has been repeatedly denied by the district court, as well as this Court. Southern has challenged these rulings by writ application, which were denied by this Court and the Louisiana Supreme Court. Although this Court does not ordinarily reconsider matters after the denial of a writ, pursuant to URCA 2-18.7, we will briefly address the exception.

As stated, in November 2009, Baker filed a petition for appeal (judicial review) in the Third Judicial District Court appealing the LTC's final determinations. Baker presented herself as a tax-recipient body affected by the ruling under review who was in accordance with the provisions of La. R.S. 47:1998, which states:

Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment.

In Martin v. ANR Pipeline Co., 2011-2079 (La. 5/8/12), 93 So.3d 575, the Louisiana Supreme Court found the case to be "procedurally similar in posture" to Gisclair v. Louisiana Tax Com'n , 10-0563 (La. 9/24/10), 44 So.3d 272 (" Gisclair II "). Citing Gisclair II , the Court stated that the right to bring an "as applied" challenge regarding the tax valuation of public service property belonged to the public service taxpayer alone. Under this rationale, the assessors could not "circumvent the constitutional and statutory framework relating to the assessment of public service properties by filing petitions for judicial review in their home parishes pursuant to La. R.S. 47:1998 in connection with the reassessment valuations in question." Martin, supra .

However, in ANR Pipeline Co. v. Louisiana Tax Com'n , 2011-2078 (La. 5/8/12), 94 So.3d 734, the Louisiana Supreme Court stated that Gisclair II was "not determinative of whether the assessors have a right to assert a cross-appeal against the taxpayers[.]" The Court recognized that in Gisclair II , an assessor filed suit against the LTC to challenge the application of the relevant laws governing the tax valuation of public service properties.

In ANR Pipeline Co. , however, the assessors did not initiate the action. Instead, they "sought to participate in the action that had been filed by the taxpayers." ANR Pipeline Co., supra at 749.

Like ANR Pipeline Co. , we find that the instant case is distinguishable from the facts of Gisclair II . Baker sought to participate in a suit that had already been filed by Southern against the LTC, as she, too, disagreed with the LTC's final determinations. At the time Baker filed her petition for judicial review, she was not a party to the taxpayers' action. However, by the time of the hearing on the taxpayers' exception of no right of action, numerous assessors had been named by Southern as defendants to the action. Baker was among the assessors named.

Southern filed its supplemental petition under La. R.S. 47:1856(G), which governs this case. The statute reads, in part:

Any taxpayer asserting that a law or laws, including the application thereof, related to the valuation or assessment of public service properties is in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state shall file suit in accordance with the provisions of R.S. 47:2134(C) and (D). The provisions of R.S. 47:1856(E) and (F) shall be applicable to such proceedings; however, the tax commission and all affected assessors and the officers responsible for the collection of any taxes owed pursuant to such assessment shall be made parties to such suit.

(Emphasis added).

Even if the Assessor's right prior to being named as a party defendant was limited to intervention, once she was named as a defendant in the action, as required by La. R.S. 47:1856(G), Baker "could not be deprived of a right to also challenge the LTC's final determination of the reassessment valuations by way of cross-appeals." ANR Pipeline Co., supra at 749,. Therefore, any question regarding the Assessor's procedural status in this case was rendered moot when the taxpayers' pleadings were amended to expressly name Baker as a defendant. We thus find that the district court properly denied the taxpayers' exception.

La. R.S. 47:1856(G) further states:

If such suit affects assessments of property located in more than one parish, such suit may be brought in either the district court for the parish in which the tax commission is domiciled or the district court of any one of the parishes in which the property is located and assessed.

(Emphasis added).

This statute gave the Assessor the option to file suit in the district court of any one of the parishes in which the property was located and assessed. Southern has pipelines located and assessed all over Louisiana. A portion of Southern's pipelines were located and assessed in Union Parish. Therefore, Baker's suit filed in Union Parish at the Third Judicial District Court was proper.

Additionally, Southern argues that the district court's lack of subject matter jurisdiction resulted in its judgment being an absolute nullity. As we have already determined the district court had subject matter jurisdiction, this argument lacks merit.

Costs

Incurred Costs

Southern first argues that the costs were incurred by the Assessor, and it would be unjust to require Southern to pay them. Specifically, Southern contends the costs were incurred by the Assessor "because she improperly brought the action for judicial review that necessitated the filing of the LTC administrative record[.]"

We have already determined that, because she was named a defendant by Southern, Baker's suit challenging the LTC's final determination was proper.

The parties to this suit reached a settlement, but it appears from the record that the settlement did not address who would pay court costs, despite it being an outstanding issue. For this reason, the district court entered a judgment assessing costs as previously awarded against Southern.

Under La. C.C.P. art. 1920, costs shall be paid by the party cast, unless the judgment provides otherwise. La. R.S. 13:4533 sets out the expenses that are allowed to be taxed as costs, which include "the costs of the clerk, sheriff, witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court." The trial court has great discretion in awarding costs, and its assessment of costs can be reversed only upon a showing of abuse of discretion. Curry v. Healthsouth N. Rehab. Hosp.-Homer Campus , 46,-15 (La. App. 2 Cir. 3/11/11), 58 So.3d 1143, 1150.

Both the judgment from this Court in 2011 and the Third Judicial District Court in 2016 imposed costs against Southern. The prior rulings and judgments in favor of the Assessor are final judgments.

Baker and the LTC stated that the entire record was filed because "attorneys for the involved pipeline companies had taken the position that the [LTC] was concealing evidence in other parishes[.]" In its Amicus Curiae brief, the LTC added that counsel for Southern did not deny that statement nor did they object to the filing of the entire record at that time. Further, the LTC stated it agreed with the positions taken by the Assessor and Clerk of Court regarding the outcome of this suit.

From the record, it appears Southern required the entire record to be filed under the suspicion that the LTC was concealing evidence. By its own admission, Southern stated in its brief that the LTC attempted to lodge a reduced administrative record to which Southern objected because it included only three of the taxpayers' exhibits, all of the assessors' exhibits, and a compact disc containing the transcript of the proceeding. Southern was obviously not satisfied with the reduced record, leading the LTC to lodge the entire record.

Although Southern was not responsible for filing the record, it required the entire record to be filed in this proceeding, and it was the party cast in judgment with costs. The district court did not abuse its discretion in imposing court costs against Southern based on the record before this Court.

Prevailing Party

Next, Southern contends that it was, in the end, the prevailing party since the Louisiana Supreme Court dismissed the cases of other assessors who brought home-parish judicial review suits. The Louisiana Supreme Court did not, however, dismiss Baker's home-parish judicial review suit.

It is apparent from the record that Southern was not the prevailing party. Southern's numerous exceptions were denied by the district court in 2010. Its writ applications to this Court and the Louisiana Supreme Court were denied. In Jones v. Southern Natural Gas Co. , supra , this Court again found that the district court did not err in denying Southern's exceptions and assessed all costs against ANR Pipeline Co., Tennessee Gas Pipeline Co., and Southern. In October 2016, the district court again rendered judgment against Southern and imposed court costs and attorney fees.

This argument lacks merit.

Abandoned/Prescribed Claim

Southern asserts that the Clerk of Court's claim for costs was abandoned. Southern contends that nothing was done between a conference call on March 5, 2012, and the Clerk of Court's ex parte letter to the court on October 22, 2015.

La. C.C.P. art. 561(A)(1) states:

An action, except as provided in subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in a trial court for a period of three years, unless it is a succession proceeding.

On August 18, 2011, the Clerk filed a motion to impose court costs requesting either the plaintiff or defendant pay all court costs in the underlying suit. After the motion was filed, neither the Assessor nor Southern moved to have the Clerk named as a party. It is clear from the record that the Clerk is not and has never been a party to this suit. La. C.C.P. art. 561(A)(1) is not applicable. The Clerk's claim was not abandoned.

Southern also points to La. R.S. 13:843.1, which states in pertinent part:

Not later than ninety days after receipt of written verification of final termination of a civil suit, the clerk of each district court shall comply with either of the following:
(1) Refund to the plaintiff or plaintiffs any unused balance remaining in the clerk's advance deposit fund to the credit of the particular suit.
(2) Issue to the party primarily liable a demand for payment of any accrued costs in excess of the advance deposit supported by an itemized account of these accrued costs.

On December 16, 2011, the Louisiana Supreme Court entered a stay of all court proceedings pertaining to reassessments resulting from the decision in ANR Pipeline v. Louisiana Tax Com'n , 2005-1142 (La. App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied , 05-2372 (La. 3/17/06), 925 So.2d 547, cert. denied , 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed. 2d 38 (2006), pending further orders of the Court. In its reasons for ruling on June 27, 2016, the district court noted that it was not notified that the stay was lifted and was unable to locate anything filed in the record indicating that the stay was lifted or when the stay was lifted. However, the district court stated that all parties agreed that the stay had been lifted.

With nothing in the record from the Louisiana Supreme Court stating that the stay was lifted, it would have been impossible for the Clerk to know that the suit was finally terminated. It is clear, however, that the stay was lifted, as the Court made a final ruling in ANR Pipeline Co. v. Louisiana TaxCom'n, supra , in 2012. Without any written verification, the Clerk's 90-day period to demand payment would not have commenced. Thus, the Clerk's motion to impose court costs filed on August 18, 2011 was timely.

Imposition of Costs was Inequitable and Unjust

Even if properly characterized as the party cast, Southern argues it would still be inequitable to have the company pay costs because it did not bring the "baseless" underlying suit. Southern also contends that the LTC was a losing party and should be responsible for a portion of the costs.

As an exhibit to her motion to impose costs, the Clerk filed a 16-page ledger report that breaks down each individual cost in this suit. The exhibit shows that the Assessor's office had a balance of $48,790.06; the Clerk's office had a balance of $6; and, Southern had a balance of $358.80. However, La. R.S. 13:4521(A)(1) states, in part:

[W]hen a final judgment is rendered dismissing all claims against the state, a political subdivision, or agent, officer, or employee thereof and when the judgment taxes costs of the state, political subdivision, or agent, officer, or employee thereof against the opposing party in accordance with the provisions of Code of Civil Procedure Article 1920, the opposing party shall be condemned to pay the temporarily deferred court costs.

Both the LTC and the Assessor are not required to pay court costs under this statute, unless ordered to do so by the court. This Court and the district court have already imposed court costs against Southern. There is nothing inequitable or unjust about casting Southern, the losing party, with costs, as required under La. C.C.P. art. 1920. As such, these arguments lack merit.

Claim for Costs was Grossly Excessive

Finally, Southern insists that the Clerk's claim for costs was grossly excessive. It states that the balance of costs claimed by the Clerk do not reflect the actual cost of the services provided by her office.

La. R.S. 13:4533 allows the Clerk of Court to have its costs in a suit taxed as court costs. The Clerk notes that the cost for filing the record was done in accordance with La. R.S. 13:841(A)(2), which states that the Clerk may be entitled to demand and receive $6 for the first page and $4 for each subsequent page.

In its brief, Southern contends that the costs are "out of proportion to the value of [the Clerk's] services." As shown by the facts contained in the record, the Clerk filed a 16-page ledger report breaking down each individual cost incurred in this suit. By letter dated September 13, 2010, and addressed to Southern, the Clerk's office advised Southern that the balance of the Clerk's costs were $48,899. In her motion, the Clerk asked that all court costs for this suit be paid.

In its 2016 ruling, the district court ultimately imposed $49,516.28 in court costs against Southern. The LTC's record contained 359 consolidated appeals. Based on the record and exhibits, there is nothing grossly excessive about this award. We thus affirm the district court's imposition of court costs against Southern in the amount of $49,516.28.

Attorney Fees

Southern argues that because the award of costs was without legal basis, there was no basis for the district court's award of legal fees. La. R.S. 13:843(B)(3) provides:

The clerk may employ an attorney at law to assist him in filing and trying said rule or rules, and the fee of the attorney employed for that purpose shall be fixed by the district judge before whom the rule is tried and shall be taxed as costs along with the cost of hearing the rule.

As we have already determined that there was a legal basis for the awarding of costs, this argument is without merit.

Southern does not contest the amount of attorney fees, only whether the attorney fees are costs. In its brief, Southern stated it did not contest the amount of attorney fees awarded if this Court found that the right to costs assessed against the company was to be enforced. As this Court has found that the costs imposed against Southern be enforced, the district court's award of $6,000 in attorney fees is affirmed.

CONCLUSION

For the foregoing reasons, we affirm the rulings of the district court. We find that the Third Judicial District court had subject matter jurisdiction to adjudicate the Assessor's action for judicial review, which was correctly brought under La. R.S. 47:1856(G). Because the district court had subject matter jurisdiction, the judgment in favor of the Assessor was not an absolute nullity.

As the Clerk of Court was not a party to this suit, we find that the claim for costs was not abandoned or prescribed.

We recognize Southern as the losing party in this case, as exhibited by the judgments in the record. The imposition of costs upon Southern was not inequitable or unjust since it was cast as the losing party under La. C.C.P. art. 1920. Additionally, the LTC and the Assessor are exempted from the payment of court costs in this suit by statute.

Furthermore, the Clerk's claim for costs was not grossly excessive. The record filed by the LTC was extremely large. As of 2010, the case ledger report showed each cost incurred in this suit, which equaled $48,437.26.

We, therefore, affirm the district court's 2016 ruling, imposing court costs against Southern in the amount of $49,516.28. Additionally, we affirm the award of attorney fees in the amount of $6,000, as Southern did not contest the amount if the court costs were enforced. Costs associated with this appeal are assessed to the appellants.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Calvin WALKER, Plaintiff-Appellant v. HIXSON AUTOPLEX OF MONROE, L.L.C., Defendant-Appellee
    No. 51,758-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 29, 2017 Rehearing Denied January 4, 2018
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellant
    VILAR & GREEN, LLC, By: Mark F. Vilar, Aaron L. Green, Alexandria, Counsel for Appellee
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, C.J.

Plaintiff, Calvin Walker, a psychiatrist, appeals from a judgment dismissing his claim for deceptive and unfair trade practices under the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPA") against defendant, Hixson Autoplex of Monroe, L.L.C. ("Hixson"). Dr. Walker purchased a 2015 Mustang GT Anniversary Edition from Hixson. Plaintiff alleges that at the time of the sale, defendant led plaintiff to believe that the Mustang he purchased was the more valuable collector's Limited Edition. Defendant filed a reconventional demand for attorney fees and costs, alleging that plaintiff was in bad faith in bringing his LUTPA claim. The trial court denied both Dr. Walker's claim and Hixson's reconventional demand. Plaintiff has appealed, and defendant filed an answer to the appeal reasserting its claim for attorney fees and costs. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The original Mustang was first manufactured in 1964. To honor the car's 50th anniversary, Ford Motor Company ("Ford") manufactured two special editions of the Mustang in 2014, the "Limited Edition" and an "Anniversary Edition."

In recognition of the original Mustang's manufacture in 1964, only 1,964 Limited Edition Mustangs were manufactured in 2014 and were intended to be a collector's car. Each Mustang included a special trim package and had a plaque on the passenger's side dash with the particular number assigned to the vehicle out of the 1,964 produced. The Limited Edition came in either "Wimbledon White" or "Kona Blue" and had either an automatic or manual transmission. In anticipation of the release of the Limited Edition Mustang, Ford promoted the car, which included newspaper articles written about the Limited Edition. The Anniversary Edition Mustang also came with the same special trim package, but Ford manufactured the Anniversary Edition in much larger numbers.

Whether a dealership would get one of the 1,964 Limited Edition Mustangs was based on a lottery, with not every Ford dealership receiving a Limited Edition to sell. In April 2014, Dr. Walker visited Hixson to inquire about purchasing a Mustang. Dr. Walker spoke with Anthony Onebene, Jr., a Hixson sales representative. At that time, neither the Limited Edition nor the Anniversary Edition was available to purchase at any dealership, and Onebene took Dr. Walker's card and told him that he would contact him if Hixson received a car.

Dr. Walker testified that he first heard of the Limited Edition Mustang when promotional newspaper articles were published in the Monroe News Star . Dr. Walker was not aware of the Anniversary Edition. He testified, "[M]y intent was to buy the Limited Edition because I didn't know there was such a thing as a package (Anniversary) Mustang. I couldn't possibly have inquired truthfully about the package Mustang since I didn't know it existed ..."

Dr. Walker claims that he showed the articles about the Limited Edition Mustang to Onebene at the April 2014 meeting. Defendant's attorney showed Dr. Walker his deposition testimony, wherein, when asked whether he showed the articles to Onebene, Dr. Walker responded, "I'm not sure." Dr. Walker then explained that because he had mentioned showing the articles to Onebene in a letter he wrote to the attorney general, mailed approximately two months after the Hixson sale, that must have been true, because his memory of the events giving rise to the case was clearer at that time than at the time of his deposition testimony. Onebene testified that Dr. Walker did not show him the article about the Limited Edition and only said that he wanted a GT Mustang.

After speaking with Onebene at Hixson, Dr. Walker continued to contact other dealerships. In April 2014, Dr. Walker had a telephone conversation with Walter Downey, the sales manager at Rountree Ford ("Rountree"), in Shreveport. Downey communicated that Rountree had received notification from Ford that it would get one of the Limited Edition Mustangs. Dr. Walker asked Rountree to hold the Limited Edition Mustang ("Rountree Mustang") for him, and he paid a $10,000 nonrefundable advance deposit to the dealership and agreed to pay $15,000 above the Manufacturer's Suggested Retail Price ("MSRP") when the vehicle was available for purchase.

Several months later, on October 15, 2014, Onebene contacted Dr. Walker. Onebene testified that he told Dr. Walker, "I have a GT with the 50th anniversary package." Dr. Walker testified that Onebene said, "I have a car you might be interested in," which Dr. Walker understood to mean that Hixson had a Limited Edition Mustang.

On that day, because Dr. Walker was seeing patients, he sent his wife and daughter to Hixson to view the Mustang Onebene had said Dr. Walker would be interested in. The wife and daughter both testified that Dr. Walker's wife asked what number the car was. Onebene testified that he did not recall being asked that question by either of Dr. Walker's relatives. While at Hixson, the women learned that a tornado hit the daughter's house, and both mother and daughter quickly left.

Later that same day, Dr. Walker went to the dealership, inspected and rode in the vehicle, reviewed the window sticker ("Monroney sticker"), which included the MSRP (suggested price and certain official specifications of the car). Dr. Walker negotiated the purchase price at $3,000 above MSRP, with the total price of the vehicle being $51,698.19. What Dr. Walker purchased was a blue 2015 Anniversary Edition Mustang GT ("Hixson Mustang").

Shortly thereafter, Dr. Walker contacted Downey to get back his deposit, stating that he had purchased a Limited Edition Mustang GT from Hixson. Downey told Dr. Walker that he could not have purchased a Limited Edition Mustang because none of the Limited Editions had been delivered to any dealerships. Downey checked the VIN and Dr. Walker then realized that he had purchased an Anniversary Edition Mustang from Hixson. In November 2014, Dr. Walker contacted Hixson to have the sale rescinded. However, Dr. Walker was told that because a title to the Mustang had been issued, the car would have to be sold as a used vehicle at a lower price than a new vehicle, meaning Dr. Walker would have had to suffer an "$11,000 loss" on the vehicle if he sold the car back to Hixson. Dr. Walker sent his wife to buy the Limited Edition Mustang from Rountree. Dr. Walker has kept the Anniversary Edition Mustang he bought from Hixson in storage, washing and driving it periodically.

Dr. Walker contacted the Louisiana Attorney General's Fraud Division about Hixson's conduct, but got no relief. Dr. Walker then filed the instant action claiming that "[d]efendant's conduct constitutes deceptive and unfair trade practice toward a consumer involving misrepresentations which were clearly unconscionable and deliberate conduct contrary to the provisions of [LUTPA]." Dr. Walker sought return of the purchase price of the Anniversary Edition Mustang and damages for mental anguish and reasonable attorney fees. Defendant answered on June 17, 2015, and pled the affirmative defenses of plaintiff's failure to mitigate his damages, estoppel, offset, superseding and/or intervening causes, and comparative fault and/or comparative negligence.

Defendant filed a motion for summary judgment and a reconventional demand seeking reasonable attorney fees and costs upon a finding by the court that plaintiff brought his claim for unfair trade practices in bad faith and for the purposes of harassment. The trial court denied the motion for summary judgment. The case proceeded to a bench trial, and the trial court provided oral reasons for its judgment denying plaintiff's claim and the reconventional demand. The instant appeal ensued, with both parties assigning errors.

DISCUSSION

Dr. Walker argues on appeal that the trial court erred in deciding the case without reading Rountree sales representative Walter Downey's deposition and in failing to find that there was no meeting of the minds as required for a valid contract of sale.

Hixson asserts that the trial court's ruling was correct, and this Court should not consider plaintiff's argument about there being no "meeting of the minds" because plaintiff did not raise this claim in any of his pleadings. Defendant answered the appeal, assigning as error the trial court's failure to award attorney fees for defending plaintiff's unfair trade practices claim, which was allegedly brought in bad faith and for the purposes of harassment.

Plaintiff argues that the trial court should have read and considered the deposition testimony ("Rountree deposition") of Downey. We agree. Downey was unable to testify, and plaintiff entered the Rountree deposition testimony into the record. Defense counsel objected on the grounds of relevancy. The trial judge stated he would read the Rountree deposition and determine what was relevant. In the court's oral reasons for judgment, however, the judge stated that he did not read the Rountree deposition because he did not believe it was relevant to plaintiff's claim. We have read this deposition and disagree with the trial court, finding that it was highly relevant to Dr. Walker's claim.

In April 2014, Dr. Walker visited Hixson and spoke with Onebene. Hixson did not have either the Limited or Anniversary Mustang. Within a month, Dr. Walker called other dealerships, specifically Rountree Ford in Shreveport. Dr. Walker spoke with Walter Downey at Rountree. In his testimony, Downey stated that Dr. Walker clearly wanted the Limited Edition. Several months later, in October 2014, Onebene called Dr. Walker and sold him an Anniversary Edition. When Dr. Walker contacted Downey to get his deposit back, Downey told plaintiff that the Limited Edition had not yet been built and what he got was actually an Anniversary Edition. This testimony shows that Dr. Walker was unequivocally intent on buying the Limited Edition Mustang.

The only question is whether Onebene knew or was aware of that motive.

La. C.C. art. 1949 provides:
Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and the cause was known or should have been known to the other party.
The comments under art. 1949 state:
When only one party is in error, that is, when the error is unilateral, there is theoretically no meeting of the minds, but granting relief to the party in error will unjustly injure the interest of the other party if he is innocent of the error. Louisiana courts have often refused relief for unilateral error for this reason. See Hello World Broadcasting Corp. v. International Broadcasting Corp., 186 La. 589, 173 So. 115 (1937) ; Kirkland v. Edenborn , 140 La. 669, 73 So. 719 (1916) ; Scoggin v. Bagley , 368 So.2d 763 (La. App. 2 Cir. 1979). Yet, expanding the rule stated in C.C. Art. 1826 (1870), they have granted relief for unilateral error in cases where the other party knew or should have known that the matter affected by the error was the reason or principal cause why the party in error made the contract. See Marcello v. Bussiere , 284 So.2d 892 (La. 1973) ; Jefferson Truck Equipment Co. v. Guarisco Motor Co. , 250 So.2d 211 (La. App. 1 Cir. 1971). As expressed in Nugent v. Stanley , 336 So.2d 1058, 1063 (La. App. 3 Cir. 1976) : "The jurisprudence ... establishes that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause."
...
At civil law, a party's knowledge of the other's error at the time of making the contract constitutes fraud (dol ) see revised C.C. Art. 1953 (Rev.1984), infra ; C.C. Arts. 1832 and 1846(6) (1870). Under this revised Article, it is not necessary that the other party have known of the mistake; it suffices that he knew or should have known that the matter affected by the error was the reason that prompted the party in error to enter the contract.

Whether a defendant has violated LUTPA is a factual determination. Cupp Drug Store, Inc. v. Blue Cross & Blue Shield of La., Inc. , 49,482 (La. App. 2 Cir. 01/7/15), 161 So.3d 860, writ denied , 15-0571 (La. 5/22/15), 171 So.3d 249. An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. Where there is more than one allowable view of the evidence, the fact finder's choice among them cannot be manifestly erroneous or clearly wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole v. Department of Public Safety & Corrections , 01-2123 (La. 09/04/02), 825 So.2d 1134.

If the exclusion of evidence, here the Rountree deposition, taints a trial court's findings, this Court steps into the shoes of the fact finder and conducts a de novo review of all the admissible evidence to ensure a fair trial and a fair judgment.

Nonetheless, a de novo review should not be undertaken for every evidentiary exclusion error. Rather, a de novo review should be limited to consequential errors; that is, the error prejudiced or tainted the trial court's finding with regard to a material factual issue. Evans v. Lungrin , 97-0541 (La. 02/06/98), 708 So.2d 731, 735 ; Wingfield v. State Department of Transportation and Development , 01-2668 (La. App. 1 Cir. 11/08/02), 835 So.2d 785, 799, writs denied , 03-0313, 03-0339, 03-0349 (La. 05/30/03), 845 So.2d 1059, 845 So.2d 1060, cert denied , 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003).

In some cases where exclusion of evidence taints a trial court's findings, a preliminary de novo review can be limited to a determination of the impact of the excluded evidence on the overall findings. In our case, it is clear from the initial limited de novo review that the excluded evidence, the Rountree deposition, does not change the ultimate findings of the trier of fact.

LUTPA is set forth in La. R.S. 51:1401 et seq. Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. La. R.S. 51:1405(A). A private right of action is provided in La. R.S. 51:1409(A) :

Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs[.]

Acts constituting unfair or deceptive trade practices are not specifically defined in LUTPA, but are determined by the courts on a case-by-case basis. Cheramie Services, Inc. v. Shell Deepwater Production, Inc. , 09-1633 (La. 04/23/10), 35 So.3d 1053. In general, acts which comprise unfair trade practices involve fraud, deception, misrepresentation, breach of fiduciary duty, or other unethical conduct. Id. To succeed on a LUTPA claim, the plaintiff must show that the alleged conduct offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious. Cupp, supra . The span of prohibited practices under LUTPA is extremely narrow. Cheramie, supra .

It is therefore up to the courts to determine what conduct falls within the ambit of practices prohibited by LUTPA. Prior cases involving consumer sales transactions are sparse and mostly involve wrongful possession and/or conversion of plaintiff's property. See Wilson v. T & T Auto Repair & Towing, L.L.C. , 50,095 (La. App. 2 Cir. 9/30/15), 180 So.3d 437 ; see also Johnson Construction Co. v. Shaffer , 46,999 (La. App. 2 Cir. 04/05/12), 87 So.3d 203 ; Tyler v. Rapid Cash, L.L.C. , 40,656 (La. App. 2 Cir. 05/17/06), 930 So.2d 1135.

This Court found a LUTPA violation warranting damages in Gandhi v. Sonal Furniture and Custom Draperies, L.L.C. , 49,959 (La. App. 2 Cir. 07/15/15), 192 So.3d 783, writ denied , 15-1547 (La. 10/23/15), 184 So.3d 19. In Gandhi , plaintiffs contracted with defendant to buy high quality custom furniture. Defendant's agent represented the company as being culturally and religiously like-minded with plaintiffs, which is why plaintiffs sought out the company. Plaintiffs visited defendant's showroom and show house, where they saw only high quality furniture. The defendant promised that the plaintiffs would receive the same quality furniture, and any pieces that were not approved would be removed or repaired.

Upon delivery, the plaintiffs noticed several problems with the furniture, which the defendant said he would remedy at a later date. Over the course of several weeks following delivery, however, the plaintiffs noticed that every piece of furniture was damaged. The plaintiffs initiated a stop payment on their final check to defendant. The defendant presented to the court a final invoice that defendant's agent said was given to the plaintiffs with handwritten notes stating the plaintiffs were 100% satisfied with the furniture after a seven-day inspection. The plaintiffs stated they received the invoice from the defendant, but there were no handwritten notes on it.

The plaintiffs sued the defendant for violating the Louisiana Racketeering Act and LUTPA and also asserted a redhibition claim. At trial, the plaintiffs' expert testified that the furniture delivered to the plaintiffs home was "shoddy," not actually intended for functional use, and was like movie set furniture. Gandhi , 192 So.3d at 787. The expert stated that the quality of the furniture had been misrepresented, and the furniture had been previously repaired prior to delivery.

The trial court, in its oral reasons for judgment, stated that the defendant had used "bait and switch" tactics, misrepresented the quality of the furniture, and preyed on the cultural and religious heritage of the plaintiffs. Id. The trial court also determined that the defendant's final invoice including the handwritten notes was fraudulently submitted to the court. The trial court stated that the "extortive conduct of [defendant's agent] was outrageous and abhorrent and the multiple violations of [LUTPA] were shocking." Id. at 787-88. This Court agreed with the trial court's decision and affirmed the judgment. Id. at 794.

A second case, McFadden v. Import One, Inc. , 10-952 (La. App. 3 Cir. 02/09/11), 56 So.3d 1212, involved the particularly egregious behavior of a car dealership which tried to coerce the plaintiff into buying a new car. The plaintiff traded in her car and was allowed to drive the new car while the dealership sought financing for her. The financing did not come through, so the dealership changed the financing terms, which the plaintiff did not agree to. The plaintiff wanted to return the new car, but the dealership refused and threatened that if she did not agree to the new financing terms, the dealership would report that the new car was stolen. The dealership also refused to return the plaintiff's trade-in car to her.

The dealership then falsely reported the new car as stolen, and the police went to the plaintiff's place of employment and repossessed the car in front of her coworkers and clients. The dealership still did not relinquish the vehicle to the plaintiff until months later. The Third Circuit called the dealership's actions "disgraceful conduct," and said that the dealership was "essentially holding [plaintiff's] vehicle hostage in an attempt to coerce a sale from her." Id. at 1221. The appellate court affirmed the trial court's judgment in favor of the plaintiff and found that the conduct warranted treble damages under LUTPA. Id. at 1221-23

In Jeter v. M & M Dodge, Inc. , 93-908 (La. App. 3 Cir. 03/02/94), 634 So.2d 1383, the vehicle involved in the case sustained damage to the hood while being transported from the manufacturer to the dealership. The car's hood was repaired and repainted, and the dealership was aware of the work done. After the car was sold to the plaintiff, the plaintiff discovered defects or overspray on the hood, roof, and bumper of the car. Two dealership employees told the plaintiff that the overspray was a result of a substance applied to the vehicle prior to transport or due to acid rain. The plaintiff discovered the true reason for the overspray from a collision center that did an inspection of the car, and it was only then that one of the dealership employees acknowledged the repair work done to the hood of the car prior to the sale. The appellate court affirmed, finding no error in the trial court's judgment that the dealership was in bad faith and committed an unfair trade practice.

The final applicable case, Gour v. Daray Motor Co., Inc. , 373 So.2d 571 (La. App. 3 Cir. 1979), involved the sale of an Oldsmobile car. The plaintiff believed that he was buying an Oldsmobile with an Oldsmobile engine; however, the vehicle contained a Chevrolet engine. The sales invoice listed the engine only by part number, and the engine itself had a decal which stated that it was an Oldsmobile engine. The dealership salesman testified that he told the plaintiff that the engine was a Chevy engine. The trial court determined that the fact that the car had a Chevy engine was not effectively communicated to the plaintiff. The appellate court called this a "reasonable evaluation of the credibility of the witnesses," and affirmed the trial court's judgment that LUTPA had been violated. Id. at 575.

These cases show clear deceptive or coercive behavior on the part of the defendants. A violation of LUTPA can only be found in the instant case if Hixson engaged in egregious fraudulent or deceptive conduct. At the very least, this would require that Hixson knew that Dr. Walker wanted only a Limited Edition Mustang, and the dealership tried to trick him into buying an Anniversary Edition instead. However, with regard to whether Hixson knew which edition plaintiff wanted, there is conflicting testimony.

The trial court found that Hixson's conduct did not involve fraud or unfair trade practices, but rather showed negligence on Dr. Walker's part in not specifying the vehicle he wanted. The trial court stated that this was an arms' length transaction between a willing buyer and a willing seller; Dr. Walker should have known that he was not getting a Limited Edition Mustang because the Hixson markup over MSRP was only $3,000, when the markup Rountree proposed was $15,000 over MSRP. Dr. Walker looked at the Hixson Mustang and its Monroney sticker and was presumed to know what he was buying.

This is a case in which there was unilateral error regarding a fact which was the principal cause for the contract. But, unilateral error invalidates the contract only when the other party knew or should have known of the error. In this case Dr. Walker did not know there were two editions and never told the salesman that he wanted anything other than a GT Mustang. He did not ask if the Hixson vehicle was the Limited Edition. On the other hand, he specifically spoke to a Rountree sales person about the Limited Edition. This was inexcusable neglect not sufficient to vitiate his consent. Degravelles v. Hampton , 94-0819 (La. App. 1 Cir. 03/03/95), 652 So.2d 647, writ denied , 95-0826 (La. 05/05/95), 654 So.2d 332.

Defendant argues that the trial court erred when it failed to conclude that plaintiff's unfair trade practices claim was brought in bad faith or for the purposes of harassment. Defendant asserts that when Dr. Walker contacted the Attorney General he alleged that there were audio tapes proving defendant's "fraud." Defendant asserts that at trial Dr. Walker admitted he never made or heard any audio recordings. Defendant urges that this puts Dr. Walker in bad faith in bringing his LUTPA claim against Hixson. Plaintiff responds that he never inaccurately represented to the trial court that he had audio recordings of defendant's alleged misrepresentations, and therefore, Dr. Walker's claim that he had tapes is not relevant to the instant appeal.

LUTPA provides that upon a finding by the court that an action under this section was groundless and brought in bad faith or for the purposes of harassment, the court may award to the defendant reasonable attorney fees and costs. La. R.S. 51:1409(A). This provision is penal in nature and is subject to reasonably strict construction. Double-Eight Oil & Gas, L.L.C. v. Caruthers Producing Co., Inc. , 41,451 (La. App. 2 Cir. 11/20/06), 942 So.2d 1279. The court has discretion in determining whether to award attorney's fees under the statute. Id. The trial court denied defendant's reconventional demand for attorney's fees under La. R.S. 51:1409, finding that the plaintiff did not act in bad faith or for the purposes of harassment. We see no reason, after reviewing the record, to disturb the trial court's decision.

CONCLUSION

The judgment of the trial court dismissing plaintiff's claim and denying defendant's reconventional demand is affirmed. Costs of this appeal are assessed equally between plaintiff and defendant.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, MOORE, GARRETT and STEPHENS, JJ.

Rehearing denied.

      Dr. Walker could not drive a manual transmission so he was a passenger.


author: WILLIAMS, J.

text:
    Deborah KENNEDY, Plaintiff-Appellant v. RED RIVER ENTERTAINMENT OF SHREVEPORT, LLC d/b/a Sam's Town Hotel and Casino, Defendant-Appellee
    No. 51,760-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered December 13, 2017
    LAW OFFICE OF ALAN STEGALL, By: Patrick Alan Stegall Counsel for Appellant
    WEINER, WEISS & MADISON, APC, By: Reid A. Jones, John M. Madison, Jr. Counsel for Appellee
    Before WILLIAMS, STONE, and COX, JJ.
   WILLIAMS, J.

The plaintiff, Deborah Kennedy, appeals a summary judgment in favor of the defendant, Red River Entertainment of Shreveport, L.L.C. d/b/a Sam's Town Hotel & Casino. For the following reasons, we affirm.

FACTS

The defendant, Red River Entertainment of Shreveport, L.L.C. d/b/a Sam's Town Hotel & Casino ("Sam's Town"), owns and operates a casino and 514-room hotel in Shreveport, Louisiana. On January 17, 2015, the plaintiff, Deborah Kennedy, was a guest in Room 1723 at the hotel. The plaintiff slipped and fell in the bathroom of her hotel room when she was startled by the presence of ants in and around the shower.

On December 16, 2015, the plaintiff filed a lawsuit against Sam's Town, alleging that she was seriously injured as a result of her fall. More specifically, in her petition for damages, the plaintiff alleged as follows: the "hotel room and its bathroom were infested with ants, and ants were crawling in and around the shower area while [she] was in the shower"; the condition of the bath area presented an unreasonable risk of harm to her; the risk of harm was known, caused by and reasonably foreseeable to Sam's Town; Sam's Town "had actual notice and/or constructive notice of the dangerous condition of guestroom 1723"; and Sam's Town failed to exercise reasonable care in the maintenance of its premises, which constituted a violation of La. C.C. arts. 2317, 2317.1 and/or 2322.

On November 29, 2016, Sam's Town filed a motion for summary judgment, contending the plaintiff was unable to meet her burden of proving that it knew, or should have known, about the presence of ants in the hotel room and that it failed to exercise reasonable care. In support of its motion, Sam's Town attached excerpts from the plaintiff's deposition, in which she testified as follows: she did not see any ants in her hotel room or bathroom prior to getting into the shower; she entered the shower, turned the water on and turned around with her back facing the faucet and showerhead; when she turned back around, she noticed ants "everywhere"; she estimated that she had been in the shower for less than five minutes when she noticed the ants; she did not know how the ants entered the shower/bathtub; the shower wall and bathtub were "covered" with ants; she panicked and tried to exit the shower/bathtub; she slipped because she was wet and was "scrambling" to get out of the shower; after she fell, she got dressed and alerted housekeeping that she "had slipped and fell [sic] and to look at the ants in the bathroom and on the bed and everywhere"; the hotel assigned her to another room; she told the hotel staff that she was "in pain, kind of stiff"; the staff called emergency medical services ("EMS"); she allowed EMS to examine her, but she declined their offer to transport her to the hospital; the hotel staff assisted her in moving her belongings to another room; the hotel staff did not indicate that they were aware of any prior issues with ants; after she moved to her new room, she heard "several people" talking about "a bed bug infestation or something"; later that day, she left the hotel and continued with her "normal activities"; and she returned to the hotel later that night and "stayed the night there."

Sam's Town also attached excerpts from the affidavit of Gary Thomas, its Security and Risk Manager, who attested as follows: the hotel's housekeeping staff was trained to inspect the hotel rooms for various conditions, including the presence of pests and/or insects; according to hotel policy, if any pests/insects were observed, the housekeeping staff was required to submit a "request for treatment"; at the time of the incident, Sam's Town had a pest control contract with Terminix; Sam's Town employees notified Terminix whenever a pest control issue was detected; when the plaintiff reported the presence of ants in her room, Sam's Town reported the issue to Terminix and reassigned the plaintiff to a different room; Terminix treated the room for insects/pests after the plaintiff moved to another room; there were no prior reports of ants in Room 1723; three days before the plaintiff's incident, Terminix had inspected Room 1723, in connection with an issue with Room 1823; and Terminix did not report any findings of insects or ants in Room 1723.

Additionally, Sam's Town attached a report that Terminix had completed on January 14, 2015. The report did not contain any indication that pests or insects were detected during the inspection of Room 1723. Sam's Town also attached an email from Paris Rainey, an employee of Terminix. In the email, Rainey stated that if Terminix had detected ants in Room 1723, the matter would have been reported to the management at Sam's Town.

Further, Sam's Town attached a report submitted by Mitch Schenck, its Director of Facilities. In the report, Schenck stated, "I was never informed of any issue in regards to Room 1723 by Terminix. This room was inspected as a surrounding room for [Room] 1823 treatment."

In her opposition to the motion for summary judgment, the plaintiff attached excerpts from her deposition. In addition to the testimony noted above, the plaintiff testified that after she fell, she saw ants crawling on the beds in her hotel room.

The plaintiff also attached excerpts from the two depositions of Gary Thomas. In the first deposition, Thomas testified as follows: during his investigation of the incident, he interviewed Schenck, Derrick Parker, the housekeeping manager, and Latonya Patterson, the manager of the food and beverage department; Patterson reported that there was no record that Sam's Town delivered food to the plaintiff's room; Schenck reported that he had not received any notice of any issue regarding ants prior to the plaintiff's incident; Parker reported that he did not have any records regarding any issues with Room 1723; the hotel security team that responded to the plaintiff's complaint observed the presence of ants in the room; he does not know how the ants entered Room 1723; the hotel had a contract with Terminix to perform pest control services on an "as needed" basis; when the hotel staff detected a pest control issue, the hotel contacted either its maintenance department or Terminix; the contract with Terminix did not provide for routine, monthly pest control treatment; and Terminix inspected Room 1723 three days before the incident, but did not treat the room for insects/pests.

During his second deposition, Thomas testified as follows: approximately 18 months before plaintiff's incident (August 5, 2013), the hotel received a report of ants in Room 1722 (located across the hall from Room 1723); three days before the plaintiff's incident, Room 1723 was inspected for pests in connection with a report of bed bugs in Room 1823; whenever bed bugs were reported, all surrounding rooms were inspected, including the rooms above and below the suspected room; when ants were reported, only the suspected room was inspected and treated; surrounding rooms were inspected in response to a bed bug issue because "bed bugs are more known to spread, you know, and create other issues in other rooms in a pretty quick time span"; and the day after the plaintiff's incident, ants were reported in Room 1623 and Room 1823, the rooms directly above and below Room 1723.

Following a hearing, the district court granted summary judgment in favor of Sam's Town, stating, "[I]nasmuch as the room on the 18th floor [was treated] for bed bugs and then later we have an ant problem, after inspection, I think [Sam's Town] did act reasonably and I will grant your motion for summary judgment."

The plaintiff appeals.

DISCUSSION

The plaintiff contends the district court erred in granting summary judgment in favor of Sam's Town. She argues that La. R.S. 2800.6 does not apply to this case because she did not slip and fall in a common area in the hotel. Rather, she slipped in the bathroom of her hotel room after she became startled by the presence of ants in her shower. According to the plaintiff, the district court should have adopted a duty-risk analysis, and summary judgment should not have been granted because breach of duty is a question of fact.

The law pertaining to motions for summary judgment is well settled. A hotel owes a duty to its patrons to exercise reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition. Johnson v. Super 8 Lodge-Shreveport , 47,081 (La. App. 2 Cir. 4/25/12), 92 So.3d 519 ; Spencer v. Red River Lodging , 37,930 (La. App. 2 Cir. 2/5/04), 865 So.2d 337. Although the keepers of inns, lodging houses, or restaurants are not the insurers of the safety of their guests, they are under an obligation to exercise, at least, ordinary or reasonable care to keep them from injury. Id.

The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such reasonable care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove the following: (1) the thing was in the defendant's custody; (2) the thing contained a defect which presented an unreasonable risk of harm to others; (3) the defective condition caused the damage; and (4) the defendant knew or should have known of the defect. Johnson v. Super 8 Lodge-Shreveport , supra ; Pamplin v. Bossier Parish Community College , 38,533 (La. App. 2 Cir. 7/14/04), 878 So.2d 889, writ denied , 2004-2310 (La. 1/14/05), 889 So.2d 266.

In Searile v. Ville Platte Med. Ctr., LLC , 2015-1183 (La. App. 3 Cir. 6/1/16), 194 So.3d 1205, two days after the plaintiff was admitted into the hospital's intensive care unit, a nurse noticed ants crawling on the plaintiff's arm and in her bed. The nurse removed the ants and administered medications to alleviate pain and itching from the ant bites. The plaintiff filed a lawsuit, alleging, inter alia , that the hospital failed to maintain a clean and safe facility. In response, the hospital moved for summary judgment, alleging the plaintiff would be unable to meet her burden of proof under La. C.C. art. 2317.1, and that she would be unable to prove that the hospital was "negligent in any way" and/or that it "breached any duty owed to her, i.e. , fault." The district court granted summary judgment; the court of appeal affirmed, finding that the plaintiff had failed to present any evidence to show that she could satisfy her burden of proof at trial. The Court stated:

[T]here was evidence that Mercy Regional regularly surveyed the hospital and had a pest control contract in place for the eradication of pests. [T]he Director of Plant Operations *** testified that Mercy Regional maintained a pest control service contract which provided monthly services for the eradication of pests. Additionally, *** [the director of plant operations] and [Quality Director and Assistant Director of Nurses] attested that notwithstanding [the plaintiff's]
incident, there were no complaints of ants in and around the facility prior to [the date of the claimant's injury]. We, therefore, agree with the trial court's finding that [the plaintiff] failed to present evidence showing that she could satisfy her burden of proof at trial[.]
***

Id. at 1212. The Court also rejected the plaintiff's general negligence claim, finding that she failed to produce factual support sufficient to establish that she could be able to satisfy her evidentiary burden of proof at trial. The Court stated:

Specifically, and despite that lapse of two years between the filing of suit and the filing of the instant Motion for Summary Judgment, [the plaintiff] failed to produce background information in this case. For example, there is no evidence regarding the nursing staff's actual conduct, the job duties assumed by the ICU nurses and employees, and whether those duties were breached. Further, as the trial court noted, [the plaintiff] failed to provide evidence indicating how quickly the ant situation could have occurred so as to consider whether the nursing staff's hourly visits were adequate.

Id. at 1213.

In the instant case, Sam's Town presented evidence that its housekeeping department regularly inspected the hotel for any issues, including the presence of pests/insects, and no issues with ants had been reported. Further, Sam's Town presented evidence that the hotel had a pest control contract with Terminix and Room 1723 had been inspected for pests ( i.e. , bed bugs) three days prior to the plaintiff's incident; Terminix did not report any issues with regard to ants. Moreover, the defendant's risk manager, housekeeping manager and director of facilities maintained that there were no reports of ants in and around the hotel prior to the plaintiff's incident.

Contrarily, the plaintiff presented evidence that approximately 18 months before her accident, Room 1722, which was located across the hall from Room 1723, was treated for ants. Further, the plaintiff presented evidence that Room 1823 had been treated for bed bugs one week before the incident and Room 1723 had been inspected for bed bugs but was not treated.

However, the plaintiff did not present any evidence to establish that Sam's Town had received any reports of ants anywhere in the hotel since August 5, 2013. The plaintiff argues that Room 1723 should have been treated for bed bugs when Room 1823 was treated. However, the plaintiff did not present any evidence to establish that the ants would not have entered her bedroom and bathroom if the room had been treated for bed bugs . Therefore, we find that the district court did not err in finding that the plaintiff failed to present evidence showing that she would be able to satisfy her burden of proof at trial. Consequently, we see no error in the district court's grant of summary judgment in favor of Sam's Town with regard to the plaintiff's premises liability claim.

The plaintiff also contends the district court erred in failing to utilize the duty-risk analysis in her general negligence claim. At the hearing on the motion for summary judgment, the plaintiff questioned the adequacy of the hotel's practice of having the hotel treated for pests on an "as needed" basis. She argued that if the hotel had treated Room 1723 for bed bugs when it was inspected, the ants would not have been present in her shower.

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315. Under the duty-risk analysis, a plaintiff must prove that the defendant owed a duty to conform his conduct to a specific standard of care (duty element); defendant failed to conform his conduct to the appropriate standard of care (breach of duty element); defendant's substandard conduct was a cause of plaintiff's injuries; and damages. Daigle v. City of Shreveport , 46,429 (La. App. 2 Cir. 10/5/11), 78 So.3d 753, writ denied , 2011-2472 (La. 2/3/12), 79 So.3d 1027 ; Pamplin , supra .

As stated above, it is a well-settled principle of law that an innkeeper owes a duty to exercise reasonable care. Johnson v. Super 8 Lodge-Shreveport , supra . However, the plaintiff did not present any evidence to establish that Sam's Town failed to conform to the appropriate standard of care. During the hearing on the motion for summary judgment, the following colloquy took place:

THE COURT: The room above had bed bugs, as I recall reading the memos.
[PLAINTIFF'S COUNSEL]: Yes, sir, it was bed bugs.
THE COURT: Bed bugs not ants. Right?
[PLAINTIFF'S COUNSEL]: Yes, sir, it was bed bugs[.]
THE COURT: They had notice of bed bugs not ants?
[PLAINTIFF'S COUNSEL]: Yes, sir. The notice was of bed bugs not ants, but it's-
THE COURT: A pest is a pest.
[PLAINTIFF'S COUNSEL]: Yeah. I mean, it's a different issue, I suppose, but I'm not that familiar with bed bugs so I don't know if you actually see them or not.
THE COURT: *** [S]ince they treated the room above for bed bugs, if they had treated the room below, which is where your client was, for bed bugs, would that have taken care of the ants? They did not have any notice of ants, they had notice of bed bugs.
[PLAINTIFF'S] COUNSEL: I think if they would have treated [Room] 1723 *** if they would have treated that one, I think , like I said, I think -yeah I think so[.]
THE COURT: I don't know the answer to the question. If they had treated your client's room the same as they did [the room] above, would that have taken care of ants or just the bed bugs, I don't know the answer to that question.
[PLAINTIFF'S] COUNSEL: I suspect it would have taken care of pretty much anything would be my guess .
***

(Emphasis added).

Our review of this record reveals that neither Sam's Town nor the plaintiff was able to ascertain how or why the ants entered in Room 1723. Additionally, the plaintiff did not present any affidavits or deposition testimony to establish that the hotel's pest control plan was insufficient. Nor did she present any evidence to show that the ants would not have been present in her room if the room had been treated for bed bugs three days prior to the incident. Accordingly, we find that the plaintiff failed to present any evidence to establish that she would be able to meet her burden of proving general negligence at trial.

CONCLUSION

For the reasons set forth herein, we affirm the district court's grant of summary judgment in favor of Red River Entertainment of Shreveport, L.L.C. d/b/a Sam's Town Hotel & Casino. Costs of the appeal are assessed to the plaintiff, Deborah Kennedy.

AFFIRMED.

      There had been a report of bed bugs in Room 1823. According to the defendant, as was its normal procedure, Terminix inspected the surrounding rooms, including Room 1723, which was located directly below Room 1823.

      In some portions of the record, "Schenck" is spelled "Schnick."

      At the time the instant lawsuit was filed, La. C.C.P. art. 966(B)(2) provided, in pertinent part:
      [A motion for summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law[.]
      La. C.C. P. art. 966(D)(1) provides:
      ***
      D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
      ***
      Appellate courts review summary judgments de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Garrison v. State Farm Fire & Cas. Co. , 51,245 (La. App. 2 Cir. 4/5/17), 217 So.3d 586 ; Argonaut Great Central Ins. Co. v. Hammett , 44,308 (La. App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied , 2009-1491 (La. 10/2/09), 18 So.3d 122.

      The plaintiff did not name Terminix as a party-defendant.


author: BLEICH, J. (Ad Hoc )

text:
    STATE of Louisiana, Appellee v. Chadric L. GREEN, Appellant
    No. 51,784-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018 Rehearing Denied February 22, 2018
    LOUISIANA APPELLATE PROJECT, BY: Peggy J. Sullivan, Counsel for Appellant
    GARY V. EVANS, District Attorney, KENNETH PATRICK HAINES, GEORGE WINSTON, III, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, STONE, and BLEICH (Ad Hoc ), JJ.
   BLEICH, J. (Ad Hoc )

Following a jury trial, Chadric Green was found guilty as charged of possession of a firearm by a convicted felon and sentenced to 14 years at hard labor, without benefit of probation, parole, or suspension of sentence and a $1,000 fine. Green appeals his conviction. We affirm.

FACTS

On October 29, 2014, the Mansfield Police Department received a walk-in complaint from the victim of events that involved a man firing a gun into the air in a pasture located in Mansfield, Louisiana, and subsequently engaging in a physical altercation with the victim. The victim and other witnesses identified Chadric Green as the individual who pulled a weapon out of his back pocket and fired five or six times into the air; the witnesses also saw a gun fall out of Green's pocket as he fought with the victim. Police recovered six .380 automatic shell casings from the scene. A warrant for Green's arrest was obtained and he was arrested in the late hours of October 29, 2014.

On July 7, 2016, Green was charged by third amended bill of information with one count of possession of a firearm by a convicted felon or carrying a concealed weapon, in violation of La. R.S. 14:95.1, after having been previously convicted of simple burglary in DeSoto Parish in Docket No. 08-CR-17320, on January 14, 2009.

In four pretrial court appearances in 2016, Green refused appointed counsel and asserted his constitutional right to represent himself. The trial court ultimately assigned standby counsel to assist Green as needed. On the day of trial, however, Green insisted that standby counsel was not going to be of any help to him because he did not trust him. Thereafter, Green proceeded to trial on July 27, 2016, and conducted voir dire and questioned the state's four witnesses on his own behalf.

These four witnesses were present at the gathering of people in or near the pasture on October 29, 2014. The victim, Billy Layton, heard five gunshots, saw Green put a gun in his back pocket, point a gun at him after the two fought, and carry the gun in his hand after the altercation. Layton also heard Green threaten to "pop" another individual. Jasmine Green and Treshawn Walker both testified they saw Green with a gun. Davonte Murphy saw Green fire a handgun multiple times into the air and a gun fall out of Green's pocket as he scuffled with Layton.

On the second day of trial, the trial court was notified that Green was absent from court and that standby counsel had unsuccessfully attempted to reach him. The trial judge issued an arrest warrant. Upon Green's absence for approximately another hour, the trial judge ruled that trial would proceed in accordance with La. C. Cr. P. art. 832. The trial judge allowed standby counsel to leave, but ordered that he be available until a verdict was reached.

The trial judge informed the jury of Green's absence, explaining that it was assumed to be voluntary as he was present for the first day of trial and failured to notify anybody that he would be late. The trial judge apprised the jury that officials continued to search for Green. The trial judge read La. C. Cr. P. art. 832 as authority for the trial to proceed and reminded the jury that Green's absence did not change the presumption of innocence.

The state completed its case with the testimony of four additional witnesses, including the investigating police officer who found the six shell casings at the crime scene and collected statements from eyewitnesses. A firearms instructor with the DeSoto Parish Sheriff's department confirmed that the markings on the shell casings were fired from a firearm and not an air pistol. The state's final two witnesses offered proof of Green's identity in the prior felony conviction. After a short deliberation, the jury returned a unanimous verdict of guilty.

Following his return to custody on January 6, 2017, Green filed a pro se motion for post-verdict judgment of acquittal on the grounds of insufficient evidence to convict him, which was denied by the trial court on February 23, 2017. Green appeared for and represented himself at sentencing on March 1, 2017, without standby counsel, when the trial court denied his oral pro se motion for new trial on the grounds of insufficient evidence to convict him. Green did not request the assistance of counsel. After hearing arguments from the state and Green regarding sentencing, and considering a presentence investigation report, the trial court sentenced Green to 14 years at hard labor without benefits and imposed a $1,000 fine. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In his first assigned error, Green argues that the evidence was insufficient to convict him, solely on the grounds that the state failed to prove his identity as the same person previously convicted of simple burglary, a necessary element of the charged offense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Stephens , 49,680 (La. App. 2 Cir. 05/20/15), 165 So.3d 1168 ; State v. Crossley , 48,149 (La. App. 2 Cir. 06/26/13), 117 So.3d 585, writ denied , 2013-1798 (La. 02/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Stephens, supra ; State v. Crossley, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

La. R.S. 14:95.1 provides that it is unlawful for any person who has been convicted of simple burglary to possess a firearm or carry a concealed weapon. To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense. State v. Castor , 50,512 (La. App. 2 Cir. 04/13/16), 194 So.3d 668.

The burden is on the state to prove the existence of the prior felony convictions. In the area of establishing a defendant's previous conviction identity, courts have recognized various methods that may be used to carry this burden of proof, such as testimony of witnesses, expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, photographs contained in a duly authenticated record, or evidence of identical driver's license numbers, sex, race and date of birth. State v. Westbrook , 392 So.2d 1043 (La. 1980) ;

State v. Jones , 41,429 (La. App. 2 Cir. 09/27/06), 940 So.2d 131, writ denied , 2006-2769 (La. 09/14/07), 963 So.2d 394 ; State v. Blackson , 38,044 (La. App. 2 Cir. 01/28/04), 865 So.2d 272. The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. State v. Watson , 40,059 (La. App. 2 Cir. 09/21/05), 911 So.2d 396 ; State v. Blackson, supra.

However, the jurisprudence holds that photographs contained in duly authenticated court records is sufficient proof of identity in themselves without the evidence of fingerprints. State v. Curtis , 338 So.2d 662 (La. 1976) ; State v. Hardy , 174 La. 458, 141 So. 27 (1932) ; State v. Callier , 39,650 (La. App. 2 Cir. 07/27/05), 909 So.2d 23, writ denied , 2006-0308 (La. 09/01/06), 936 So.2d 196. See also, State v. Hongo , 625 So.2d 610 (La. App. 3 Cir. 1993), writ denied , 631 So.2d 1163 (La. 1994). Further, the quality and content of time the trier of fact has to observe the defendant and compare him with the photograph is a factor to consider in determining whether the state has met its burden of proof. State v. Curtis, supra ; State v. Hongo, supra. See also, State v. Thomas , 27,504 (La. App. 2 Cir. 11/01/95), 662 So.2d 798.

The rule of idem sonans is that absolute accuracy in spelling names is not required in a legal document or proceedings either civil or criminal. If the name, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name there given is a sufficient designation of the individual referred to, and no advantage can be taken of the clerical error. State v. Bennett , 517 So.2d 1115 (La. App. 1 Cir. 1987), writ denied , 523 So.2d 1335 (La. 1988). See also, State v. Foster , 164 La. 813, 114 So. 696 (La. 1927) ; State v. Hattaway , 180 La. 12, 156 So. 159 (La. 1934) ; State v. Gipson , 28,113 (La. App. 2 Cir. 6/26/96), 677 So.2d 544, writ denied , 1996-2303 (La. 1/31/97), 687 So.2d 402 ; State v. Leboeuf , 2016-0810 (La. App. 1 Cir. 10/28/16), 2016 WL 6330439, writ denied , 2016-2126 (La. 9/15/17), 225 So.3d 477.

In this case, in order to satisfy the burden of proof regarding Green's identity, the state presented the testimony of Sydney Sparks, a clerk with the criminal division of the DeSoto Parish Clerk of Court's office, the official custodian of public records. Sparks identified State's Exhibits S-2 and S-3, which were certified copies of the March 19, 2008 bill of information and case minutes from Green's prior conviction for simple burglary in DeSoto Parish Docket No. 08-CR-17320. Sparks read the redacted bill of information and the full case minutes aloud to the jury. According to Sparks, the bill of information, dated March 19, 2008, listed the name Chadric L. Green, with an address of 174 James Lane, Mansfield, Louisiana 71052, and date of birth of September 24, 1976. The case minutes for case No. 08-CR-17320, show that on March 19, 2008, Chadric L. Green appeared and was represented by counsel. Green was advised of his rights, pled guilty to simple burglary and was sentenced to one year at hard labor. The minutes state that pursuant to a plea agreement, a second charge was dismissed and the state declined to charge Green as a habitual offender. Both exhibits were admitted into evidence. Sparks testified that these documents were "the same" with a case on another incident on "this bill of information."

Lieutenant Phillip Daniels, with the patrol division of the DeSoto Parish Sheriff's Department, testified that he maintained the booking process records that included the booking cards containing fingerprints and photographs completed upon an arrest of an individual. Lt. Daniels identified State's Exhibit 4 as a certified copy of a booking card for an individual named Chadric L. Green. The card contained social security number XXX-XX-XXXX, a date of birth of September 24, 1976, and described Green as a black male, 5'7?, weighing 166 lbs., with brown eyes and black hair. According to Lt. Daniels, the card contained digital fingerprints and a photo of the defendant who was arrested on January 9, 2008, for a charge of simple burglary. State's Exhibit S-4 was admitted into evidence and published to the jury.

Based upon the jurisprudence noted above, we find that in this case, Green's photograph is alone sufficient to prove his identity. Green's representation of himself during both voir dire and the first day of trial gave the jury a unique opportunity to view him, focus on his features and compare his photograph from the prior offense with his appearance at the present trial. Even so, we find that the record otherwise sufficiently links Green to the previous offense. Green's date of birth and address appear on the present charging instrument and are identical to the information provided through Sparks' testimony relating to the predicate conviction. Despite the prosecutor's inartful examination of Sparks regarding the prior case and "this bill of information," Sparks clearly identified the information as being "the same." Any different spelling of Green's forename is merely idem sonans because the addition of the silent "k" at the end of Chadric does not change the sound thereof and is a proper designation. State v. Foster, supra, State v. Hattaway, supra ; State v. Gipson, supra ; State v. Leboeuf, supra ; State v. Bennett, supra. For these reasons, we find that the totality of proof provides a sufficient link between the two offenses and establishes the necessary element of possession of a firearm by a convicted felon. Thus, this assignment of error is without merit.

Green next argues that the trial court erred by not declaring a mistrial due to his absence from the second day of trial when Sparks referenced other crimes evidence, including the fact that a second charge was dismissed and that the state declined to charge Green as a habitual offender. Green contends that there was no one to act on his behalf or to protect his right to a fair trial by objecting to these prejudicial remarks and moving for a mistrial.

A defendant has a Sixth Amendment right to conduct his own defense by making a knowing and voluntary waiver of his right to counsel and thereby asserting his right to represent himself. Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975). The trial court may, but is not required to appoint standby counsel, who may assist the pro se defendant. Id.

La. C. Cr. P. art. 831 states that a defendant charged with a felony shall be present at all proceedings when the jury is present, when the court is determining and ruling on the admissibility of evidence, and at the rendition of the verdict or judgment, unless he voluntarily absents himself.

Further, La. C. Cr. P. art. 832 provides:

A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and he voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial.

The admissibility of other crimes or bad acts is governed by La. C.E. art. 404(B). State v. Prieur , 277 So.2d 126 (La. 1973). A defendant who makes no contemporaneous objection to the introduction of evidence of other crimes and fails to move for mistrial waives the right to cite introduction of evidence of other crimes as error on appeal. State v. Smith , 535 So.2d 786 (La. App. 2 Cir. 1988). Likewise, a defendant who fails to object to other crimes evidence introduced during trial, waives the error on appeal. State v. Ruiz , 06-1755 (La. 04/11/07), 955 So.2d 81 ; State v. Lilley , 43,467 (La. App. 2 Cir. 09/17/08), 996 So.2d 348, writ denied , 2008-2514 (La. 05/15/09), 8 So.3d 582.

In this matter, Green exercised his Sixth Amendment right to waive his right to counsel and represent himself at trial. Thus, he assumed the burden to make any necessary contemporaneous objections on his behalf, including an objection to prejudicial remarks made during his absence, or move for a mistrial based upon that evidence. Green's choice to voluntarily absent himself from trial when the alleged error occurred created a situation of his own choosing that included the release of standby counsel and the continuation of trial without him. Because no contemporaneous objection to the alleged other crimes evidence was made or mistrial sought, the issue was not preserved for review on appeal. This assignment is also without merit.

Error Patent

In this case, Green was sentenced immediately following the denial of his oral motion for new trial. There is no showing on the record that he waived the 25-hour delay required by La. C. Cr. P. art. 873. Nevertheless, the maximum sentence was not imposed and a presentence investigation report was ordered, of which the defendant was notified, and reviewed by the trial court. Further, considering the substantial amount of time that elapsed between Green's conviction and sentence, and because Green does not complain about the error or raise an excessive sentence claim, we find the error to be harmless. State v. Kisack , 2016-0797 (La. 10/18/17), --- So.3d ----, 2017 WL 4681356 ; State v. Augustine , 555 So.2d 1331 (La. 1990) ; State v. White , 404 So.2d 1202 (La. 1981).

CONCLUSION

For the foregoing reasons, Green's conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, MOORE, GARRETT, STONE and BLEICH, JJ.

Rehearing denied.

      The waiver of counsel at trial carries through to subsequent proceedings unless the defendant expressly requests that counsel be appointed for subsequent proceedings. State v. Carpenter , 390 So.2d 1296 (La. 1980) ; State v. Franklin , 43,173 (La. App. 2 Cir. 9/17/08), 996 So.2d 387, writ denied , 2008-2371 (La. 5/22/09), 9 So.3d 138.

      The eyewitness testimony was sufficient to prove Green's possession of a firearm.

      State's Exhibit S-3, which was published to the jury, is a redacted version of Exhibit S-2 that excluded reference to a charge that was later dismissed. The exhibits spell Green's first name as "Chadrick," but the trial transcript shows his name as "Chadric," the name utilized here.

      State's Exhibit 4 also lists Green's forename as "Chadrick" and actually lists the date of Green's arrest as January 19, 2008.