author: Judge Roland L. Belsome

text:
    Thomas HANDY, Jr., Sandra Handy and Thomas Handy, III v. OWENS CORNING CORPORATION, et al
    NO. 2018-CA-0491
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    Caleb H. Didriksen, III, Erin Bruce Saucier, Jeremy J. Pichon, DIDRIKSEN SAUCIER WOODS & PICHON, PLC, 3114 Canal Street, New Orleans, LA 70119, Tony M. Clayton, ATTORNEY AT LAW, 3741 Highway 1 South, Port Allen, LA 70767, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Lawrence G. Pugh, III, Donna M. Young, PUGH ACCARDO HAAS RADECKER & CAREY, LLC, 1100 Poydras Street, Suite 3300, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown )
   Judge Roland L. Belsome

This appeal is taken from the verdict rendered by the jury in which the defendant was found free of fault for the injuries sustained by the plaintiffs. For the following reasons, the jury verdict is affirmed.

Facts and Procedural History

Thomas Handy, Jr. died of lung cancer at the age of 79. Prior to his death, he, his wife Sandra Handy, and his son Thomas Handy, III (collectively referred to as "the plaintiffs") filed suit against multiple defendants. The plaintiffs' allegations maintained that Mr. Handy's exposure to asbestos-containing products during his many years of employment was the cause of his lung cancer.

At the time of trial, Ferguson Enterprises, Inc. was the only remaining defendant. The allegations against Ferguson Enterprises, Inc. were that it was the successor corporation of Louisiana Utility Supply Co. (hereafter referred to as "Ferguson/LUSCO"). It was further alleged, that Ferguson/LUSCO supplied and/or distributed asbestos-containing cement pipe to Mr. Handy's employer, C. J. Calamia Construction. Additionally, it was alleged that Mr. Handy was exposed to asbestos that was airborne due to the cutting of that asbestos-containing cement pipe.

This matter was tried before a jury. After trial, the jury returned a verdict that found: 1) Mr. Handy's exposure to asbestos-containing products were a substantial contributing factor in causing his lung cancer ; 2) That Ferguson Enterprises Inc. was a successor to Louisiana Utilities Supply Co. ("LUSCO"); and 3) the products supplied and/or distributed by LUSCO were not a substantial contributing factor in causing Mr. Handy's lung cancer. Subsequent to the verdict, the plaintiffs filed a motion for new trial which was denied. This appeal followed.

Assignments of Error

The plaintiffs claim that the jury's verdict in defendant's favor was contrary to the law and evidence. Next, the plaintiffs contend that the trial court erred in charging the jury with incorrect law and in failing to give additional instructions to the jury when asked. Also raised on appeal, is the trial court's denial of the motion for new trial.

Verdict

On appeal, the plaintiffs maintain that the jury's verdict was contrary to the law and evidence presented at trial. The long-standing jurisprudence on appellate review of jury verdicts is that a court of appeal may not set aside the jury's finding unless it is clearly wrong or manifestly erroneous. So, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Even if an appellate court considers its own evaluations and inferences to be more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Therefore, if the record reveals a reasonable basis for the jury's determinations, the verdict must stand.

To be successful in this case, the plaintiffs had to prove that Mr. Handy "had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury." Here, the plaintiffs' allegations against Ferguson/LUSCO arise out of claims that the company sold asbestos-containing cement pipe to Mr. Handy's employer. Thus, the plaintiffs had to prove that the specific cement pipe supplied and/or distributed by Ferguson/LUSCO was a substantial contributing factor in causing Mr. Handy's lung cancer.

Even though Ferguson/LUSCO argued that Mr. Handy's lung cancer was caused by smoking three packs of cigarettes a day for decades, the jury found that Mr. Handy's exposure to asbestos-containing products was a substantial contributing factor in causing his lung cancer. However, the jury also found that the cement pipe sold by Ferguson/LUSCO was not a substantial contributing factor and Ferguson/LUSCO bore no fault in Mr. Handy contracting lung cancer. As stated above, our inquiry is whether the jury was reasonable in that finding given the entirety of the record.

During Mr. Handy's employment with Calamia Construction he cut asbestos-containing cement pipe. At trial, the jury heard conflicting testimony regarding the supplier of that pipe. Some testimony indicated that Calamia Construction used CIMSCO, Inc. as its primary supplier of cement pipe. This was confirmed by the testimony of a CIMSCO sales representative. That witness recalled Mr. Handy cutting cement pipe on CIMSCO's premises. In a search for documentation to prove that Ferguson/LUSCO was also a consistent supplier of the cement pipe for Calamia Construction, only one document was found that linked Ferguson/LUSCO to a delivery for Calamia Construction. The document was an invoice indicating that on one occasion Johns Manville Corporation, the cement pipe manufacturer, shipped pipe directly to Calamia Construction on behalf of Ferguson/LUSCO. The parties also presented competing expert evidence regarding the level of asbestos exposure that is necessary to increase the risk of contracting lung cancer.

This case was highly contested and the jury was presented with contradictory testimony and evidence. As the factfinder, the jury can accept or reject, in whole or in part, any witness's testimony including expert witnesses. Even though this record contains evidence that could lead a reasonable person to find differently, this court cannot substitute its view of the evidence for that of the jury. Where there are two permissible views of the evidence, the jury's choice between the two cannot be manifestly erroneous or clearly wrong. Thus, given the parameters under which we review a jury's verdict and the record in the instant case, this Court cannot find that the jury's determinations were so unreasonable that they were manifestly erroneous or clearly wrong.

Jury Charges

The plaintiffs assign as error the trial court's refusal to give certain requested instructions to the jury. Also, the plaintiffs contend that the trial court incorrectly charged the jury on the issue of causation and further erred by not answering a question posed by the jury. Ferguson/LUSCO contends that the plaintiffs are precluded from raising any issues concerning the jury instruction on causation or the failure to answer the jury question because they did not make timely objections.

When reviewing assignments of error regarding jury charges, this Court must determine if the complained of charges were met with a timely objection. La. C.C.P. art. 1793(C) provides:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

Upon a thorough review of the record, there were no timely objections made regarding the trial court's jury instructions. As such, we find that the plaintiffs did not preserve their right to appellate review on that issue. What the record does reflect is that the plaintiffs did timely object to the exclusion of several proposed charges that were submitted to the trial court but not incorporated into the final jury charges. Since the plaintiffs maintain that the excluded charges were essential jury instructions to explain "substantial contributing factor," this Court will review the excluded charges to see if they would have aided the jury in better understanding the law.

There is no requirement that a trial court give the precise instructions submitted by either party, but it must give instructions that properly reflect the law that is applicable to the pleadings and facts of the case. "Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions." "Trial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law." On review, the appellate court's duty is to assess the error alleged in the context of the jury charges as a whole to determine if the charges adequately provide the correct principles of law.

Reviewing the jury charges, that were excluded and properly met with a timely objection, together with the full set of charges given to the jury, we do not find that the proposed charges declare any applicable principle of law that applies to this case and that was not already included in the trial court's jury charges. For that reason, we find no error in the trial court's exclusion of the plaintiffs' proposed jury charges. Thus, this Court finds that the trial court's jury charges were legally correct and additional charges were not warranted.

Jury Question

La. C.C.P. art. 1796 provides that a jury, after retiring to deliberate, may ask for additional information, and the court, after giving notice to the parties, may give additional instructions. But, the trial court is not obligated to supplement the jury with additional information. As for the question posed by the jury, the jury asked for a definition for "substantial." The trial court informed the parties of its intent to refer the jury back to the jury charges. The parties did not object and have therefore waived any right to appellate review on the issue.

Motion for New Trial

Lastly, the plaintiffs contend that the trial court abused its discretion by not granting a new trial based on juror misconduct. As stated by La. C.C.P. art. 1972, a new trial shall be granted "[w]hen the jury...has behaved improperly so that impartial justice has not been done." The plaintiffs' motion for new trial alleged that Alisa Bright, the jury foreperson, had out of court communications during the trial with a past associate of the law firm representing the plaintiffs. The motion filed with the trial court stated nothing else and was not accompanied by any supporting evidence.

Prior to the date of the hearing for the motion, the plaintiffs submitted the affidavit of lead plaintiffs' counsel, Caleb Didriksen, III. The affidavit made it clear that the affiant had no personal knowledge of any communications. Primarily, the affidavit contained suspicions about what could have transpired between the foreperson and former associate. It was asserted that Mr. Didriksen's co-counsel, Erin Saucier, was the person that was informed of the communications. Yet, Ms. Saucier did not submit an affidavit and her testimony was not proffered for the record.

In the absence of any competent corroborating evidence, the trial court did not abuse its discretion in denying the motion for new trial.

Conclusion

Based on record before this Court, we affirm the jury's verdict and the judgment entered by the trial court.

AFFIRMED

      The appellee also answered the appeal seeking review of the jury's finding that Ferguson Enterprises, Inc. was a successor corporation to Louisiana Utilities Supply Company. Given this Court's determinations on appeal, there is no need for a discussion of that assignment of error.

      Rosell v. ESCO , 549 So.2d 840, 844 (La.1989).

      Id.

      Stobart v. State, Department of Transportation and Development , 617 So.2d 880, 882 (La.1993).

      Rando v. ANCO Insulations Inc. , 08-1163, 08-1169, p. 35 (La. 5/22/09), 16 So.3d 1065, 1091 (quoting Asbestos v. Bordelon, Inc. , 96-0525 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 948 ).

      The lawsuit originally included numerous defendants including Mr. Handy's employers, manufacturers of asbestos-containing products, and distributors of asbestos-containing products.

      CIMSCO, Inc. was a non-party defendant.

      At trial, the testimony stated that Ferguson/LUSCO's records were subject to a flood and later a fire. It is unknown what those documents may have contained.

      Johns Manville Corporation was a non-party defendant.

      McInnis v. Bonton , 17-0088, pp. 6-7 (La.App. 1 Cir. 9/21/17), 232 So.3d 22, 26-27 (citations omitted).

      Rosell , 549 So.2d at 844.

      The following proposed jury charges were provided by the plaintiffs, but not included in the trial court's final charges:
      PLAINTIFFS' JURY CHARGE NUMBER 6
      It is settled in Louisiana jurisprudence that one who causes injury to another takes his victim as he finds him. Thus, even if you find that Mr. Handy had a preexisting physical condition making him more susceptible to an injury, he can still be compensated. LUSCO is responsible for all the natural consequences of its wrongdoing, so long as there is a causative link between the conduct and Plaintiffs' injury. If you find that Defendant aggravated Mr. Handy's condition, Plaintiffs should be compensated for the aggravation of his condition. The Defendant's conduct need not be the sole cause of the Mr. Handy's injury and death. It must only be a substantial contributing factor in the cause of Mr. Handy's injury.
      PLAINTIFFS' JURY CHARGE NUMBER 10
      "The effect of exposure to asbestos dust is cumulative, that is, each and every exposure may result in an additional and separate injury."
      PLAINTIFFS' JURY CHARGE NUMBER 11
      If a plaintiff suffered a relatively short asbestos exposure and he had other longer exposure working, the relatively short exposure may still be a substantial cause of his injury.
      PLAINTIFFS' JURY CHARGE NUMBER 12
      A plaintiff is not required to provide an exact dose of asbestos as to a particular defendant to establish causation.
      PLAINTIFFS' JURY CHARGE NUMBER 15
      Asbestos has been determined by the Louisiana Supreme Court to be a product which is "unreasonably dangerous per se."
      Therefore, if you find that Mr. Handy was exposed to asbestos from LUSCO and that this asbestos caused or contributed to his asbestos-related cancer then you must find for the Plaintiffs and against LUSCO.
      PLAINTIFFS' JURY CHARGE NUMBER 21
      "Asbestos is a substance that creates an unreasonable risk of harm when inhaled."

      Adams v. Rhodia, Inc. , 07-2110, p. 6 (La. 5/21/08), 983 So.2d 798, 804 ; La.C.C.P. art. 1792(B).

      Adams , 07-2110, p.6, 983 So.2d at 804.

      Id.

      Adams , p. 7, 983 So.2d at 804.

      La.C.C.P. art. 1796 (A) and (B).

      In the motion for new trial, the plaintiffs sought a new trial or a judgment notwithstanding the verdict.

      The former law associate was identified as Matthew Greig. The affidavit filed by Mr. Didrikson claimed that Mr. Greig worked on the Handy case and had been friendly with Mr. Handy prior to his death.

      The trial court denied the plaintiffs' motion for new trial without taking testimony.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    Jose Maria RIVERA ROSALES v. MICHELIN NORTH AMERICA, INC., et al.
    NO. 2018-C-0116
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 28, 2018
    J. Bart Kelly, III, Roderick Alvenia, Jeanne K. Demarest, Amy C. Fontenot, Kurt A. Offner, Law Office of Alvenia, Kelly & Demarest, 909 Poydras Street, Suite 1625, New Orleans, Louisiana 70112, COUNSEL FOR RELATOR/PLAINTIFF
    Andrew D. Weinstock, Joseph G. Glass, Hope A. Phelps, Duplass, Zwain, Bourgeois, Pfister, Weinstock & Bogart, 3838 N. Causeway Blvd., Suite 2900, Metairie, Louisiana 70002, COUNSEL FOR RESPONDENT/DEFENDANT
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Daniel L. Dysart )
   Judge Daniel L. Dysart

This writ application is before this Court on remand by the Louisiana Supreme Court for briefing, argument and full opinion. The concise issue to be decided is whether venue is proper in Orleans Parish as to defendant, Carmax Auto Superstores, Inc., an alleged tortfeasor, along with other named defendants. For the following reasons, we reverse the ruling of the district court, and remand this matter for further proceedings.

BACKGROUND:

Plaintiff, Jose Maria Rivera Rosales ("Mr. Rosales"), was severely injured on May 25, 2016, in Tangipahoa Parish, when the truck in which he was a passenger was involved in a rollover accident, the result of an allegedly defective tire which delaminated. Mr. Rosales filed suit in Orleans Parish on May 5, 2017, naming, among others, Michelin North America, Inc. ("Michelin"), Carmax Auto Superstores, Inc. ("Carmax"), ONG Motorsports, Inc. ("ONG"), and CarsforSale.com, Inc ("CarsforSale"). Michelin and Carmax were both alleged to be foreign corporations authorized to do and doing business in Louisiana. ONG was alleged to be a foreign corporation authorized to do and doing business in Texas, and CarsforSale was alleged to be a foreign corporation authorized to do and doing business in South Dakota.

In his petition filed on May 9, 2017, and amended and supplemental petition filed on May 24, 2017 in Orleans Parish, plaintiff alleged that his domicile since the date of the accident was Orleans Parish. Plaintiff further alleged that ONG and CarsforSale are foreign corporations not licensed to do business in Louisiana, and which do not have agents for service of process in Louisiana.

Defendants Carmax and Michelin each filed an exception of improper venue, on or about June 8, 2017, arguing that La. C.C.P. art. 74 provides that a suit brought to recover damages for an offense may only be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. As the accident occurred in Tangipahoa Parish, defendants maintained that venue is improper in Orleans Parish. Further, as plaintiff did not allege any facts to support why venue is proper in Orleans Parish, the suit should be transferred to Tangipahoa.

In response to defendants' exceptions, plaintiff argued in the trial court that venue is proper in Orleans Parish pursuant to La. R.S. 13:3203, which states, "A suit on a cause of action described in R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue." Additionally, plaintiff argued that jurisdiction is personal to the party and may not be raised by another party. He argued that since ONG and CarsforSale never filed exceptions to jurisdiction, Michelin and Carmax cannot except on their behalf.

The record reveals that ONG and CarsforSale did not file exceptions objecting to the lack of personal jurisdiction of the Orleans Parish Court. The only action taken by ONG and CarsforSale was on June 28, 2017, when they filed a motion for extension of time to answer the petition. Neither party filed an answer or any other exception. On November 21, 2017, a Partial Motion to Dismiss was entered, dismissing ONG and CarsforSale.

The original hearing on Michelin's and Carmax's exceptions was held on June 21, 2017. The hearing was continued to December 15, 2017 so that the parties could conduct discovery; however, during that period of time between the hearings, no exceptions or answers were filed by ONG and CarsforSale.

On December 15, 2017, the third hearing on the matter, the court granted Michelin's and Carmax's exceptions of improper venue.

Plaintiff filed a writ application in this Court, which we granted, finding that venue was proper in Orleans Parish pursuant to La. C.C.P. art. 42(5). Michelin and Carmax applied for writs of certiorari to the Louisiana Supreme Court, which were granted. The Supreme Court remanded the matter to this Court with instructions to order briefing and oral argument, and to render a full opinion.

DISCUSSION:

In his Petition for Damages, the plaintiff alleged:

21.
Seller Defendants, ONG MOTORSPORTS, INC. D/B/A ONGMOTORSPORTS.COM, CARSFORSALE.COM, and CARMAX AUTO SUPERSTORES, INC. regularly marketed their inventory of vehicles nationally, including to Louisiana residents, via the internet.
22.
Seller Defendants, ONG MOTORSPORTS, INC. D/B/A ONGMOTORSPORTS.COM, CARSFORSALE.COM, and CARMAX AUTO SUPERSTORES, INC. specifically marketed the 2004 Nissan Frontier nationally, including to Louisiana residents and Bernal, and were made aware that MISAEL BERNAL resided in Louisiana and intended to use the Frontier as vehicular transportation in Louisiana.
Defendants, MICHELIN NORTH AMERICA, INC., ONG MOTORSPORTS, INC. D/B/A ONGMOTORSPORTS.COM, CARSFORSALE.COM, and CARMAX AUTO SUPERSTORES, INC. may have also engaged in other acts of negligence which may be determined through discovery.

Since an exception of no cause of action was never raised, it is presumed a proper cause of action was stated against ONG and CarsforSale and further that they were transacting business in the State of Louisiana, which allegations met the requirements of La. R.S. 13:3201 A (1), the Long Arm Statute.

ONG and CarsforSale were foreign corporations not licensed in the State of Louisiana and had not appointed agents for service of process. As a result, the plaintiff filed suit in Orleans Parish, his domicile pursuant to the provisions of La. C.C.P. art. 42(5) which provides as follows:

The general rules of venue are that an action against:

* * * *
(5) A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in the parish of the plaintiff's domicile or in a parish where the process may be, and subsequently is, served on the defendant.

Defendant, Carmax, is a foreign corporation licensed to do business in Louisiana. Therefore, the provisions of La. C.C.P. art. 73 A apply. The article provides:

A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff's domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.

Accordingly, at the time the petition was filed, venue was proper in Orleans Parish as to Carmax pursuant to the provisions of La. C.C.P. arts. 42(5), 73 A, and La. R.S. 13:3201 and 3203. As indicated previously ONG and CarsforSale settled without making any other filing but the Motion for Extension.

The well-defined issue presented by this case is whether Carmax has standing to raise an objection to the lack of personal jurisdiction on behalf of ONG and CarsforSale.

Johnson v. Williams, 49,749 (La.App. 2 Cir. 4/15/15), 163 So.3d 880, is a Second Circuit case where the plaintiff, Donald Johnson, sought a declaratory judgment in a Louisiana court, seeking to have the final payment due from an annuity acquired as a result of an automobile accident made to him instead of to his ex-wife. Mr. Johnson's ex-wife and his son were residents of Maryland. Mr. Johnson continually failed to pay child support, and after years of litigation in Maryland, his ex-wife eventually obtained an injunction prohibiting Mr. Johnson from selling, transferring, or otherwise alienating the annuity payments, and further ordering Symetra, the insurance company which maintained and administered the annuity, not to transfer, relinquish, make any payments on, or make any distributions from the annuity pending further orders of the Maryland court. Thereafter, the Maryland court periodically ordered payments to be made to Mr. Johnson's ex-wife. At no time did Mr. Johnson challenge the jurisdiction of the Maryland court.

When his son reached the age of majority, Mr. Johnson contacted Symetra and requested that the final annuity payment be made to him. Symetra refused based on the injunction. Mr. Johnson, although at the time a resident of Florida, filed pleadings in the original Franklin Parish personal injury suit, seeking a declaratory judgment against Symetra to force it to make the final payment to him. He argued that the Maryland court did not have personal jurisdiction over Symetra and therefore could not subject it to an injunction.

The Second Circuit explained:

Personal jurisdiction is a waivable right. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ; Lovering v. Lovering , 38 Md.App. 360, 380 A.2d 668 (1977). Unlike subject matter jurisdiction, personal jurisdiction represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ; Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). As a result, it is waivable by the affected parties, and therefore cannot be raised on their behalf by anyone else. Seven Arts Pictures, Inc. v. Jonesfilm, 2011 WL 2461701 (E.D.La. 2011).

Johnson, 49,749, p. 15, 163 So.3d 880 at 888-89.

In Seven Arts Pictures, Inc. v. Jonesfilm , 09-4814 (E.D. La. 6/17/11), 2011 WL 2461701, the court was asked to rule on a challenge to jurisdiction and venue raised by defendant, Seven Arts Pictures. Seven Arts Pictures was one of several judgment debtors who were cast in judgment, jointly and severally, in the State of California. After the judgment became final, the plaintiff conducted debtor discovery and learned that Seven Arts Pictures was the owner of a limited liability company and a member of three other limited liability companies in the State of Louisiana. The plaintiff registered the California judgment in the Eastern District Court of Louisiana and obtained orders against the judgment debtors' membership interest in the Louisiana limited liability companies. Seven Arts Pictures countered with a Motion to Dismiss, arguing that there was no personal jurisdiction over them because of a lack of sufficient minimum contacts. It also made arguments as to why the Louisiana court could not exercise personal jurisdiction over the other judgment debtors. The court addressed whether Seven Arts Pictures could raise a challenge to jurisdiction and venue on behalf of other judgment debtors. Quoting Jenkins v. Smead Mfg. Co., No. 09-CV-0261-IEG (BLM), 2009 WL 3628100 (S.D.Cal. October 28, 2009), the court explained:

Unlike subject matter jurisdiction, personal jurisdiction and venue represent a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (personal jurisdiction); Interior Const. & Imp. Co. v. Gibney, 160 U.S. 217, 219-20, 16 S.Ct. 272, 40 L.Ed. 401 (1895) (venue). As a result, both are waivable by the affected parties, and therefore cannot be raised on their behalf by anyone else. See Sayles v. Pac. Eng'rs & Constructors, Ltd., No. 08-CV-676S, 2009 WL 791332, at *7 (W.D.N.Y. Mar. 23, 2009) (citation omitted) (defendant lacks standing to contest personal jurisdiction over a co-defendant); Smithkline Beecham Corp. v. Geneva Pharmaceuticals, Inc., 287 F.Supp.2d 576, 580 n. 7 (E.D.Pa.2002) (citation omitted) (same); Vance Trucking Co. v. Canal Ins. Co., 338 F.2d 943, 944 (4th Cir. 1964) (citing Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997 (1919) ) (defendant cannot raise the defense of improper venue on behalf of a co-defendant); Schoen v. Mountain Producers Corp., 170 F.2d 707, 713 ( [3rd] Cir. 1948) (citing Camp, 250 U.S. at 316, 39 S.Ct. 478 ) (same); Pratt v. Rowland, 769 F.Supp. 1128, 1132 (N.D.Cal. 1991) (citing Camp, 250 U.S. at 316, 39 S.Ct. 478 ) (same).

The court went on to rule:

For the reasons stated above, Seven Arts lacks standing to challenge the personal jurisdiction and/or venue with respect to the other judgment debtors. See Jenkins v. Smead Mfg. Co. , 2009 WL 3628100 at *3.

Id., at *4.

Applying the foregoing principles, the court found that Seven Arts Pictures lacked standing to challenge personal jurisdiction and/or venue with respect to whether jurisdiction and/or venue existed as to the other judgment debtors.

In the instant matter, therefore, we find that Carmax has no standing to raise the exception of venue, which is grounded in a jurisdictional question, on behalf of ONG and CarsforSale. We further find that ONG and CarsforSale were party defendants and alleged joint obligors at the time Michelin and Carmax filed their exceptions. As such, venue was proper as to them in accordance with La. C.C.P. art. 42(5), and as to Carmax in accordance with La. C.C.P. art. 73.

For the reasons set forth herein, we grant the writ application filed on behalf of plaintiff. We reverse the ruling of the trial court, and remand the case for further proceedings.

REVERSED AND REMANDED

      After the filing of the original exceptions of improper venue and prior to the September 15, 2017 hearing on the exceptions, ONG and CarsforSale settled with the plaintiff.

      Subsequent to the filing of this suit in Orleans Parish, plaintiff filed an identical suit in Tangipahoa Parish. See La. C.C.P. art. 121.

      La. R.S. 13:3201 is commonly referred to as the Louisiana Long-Arm Statute.

      While this matter was pending before the Supreme Court, Michelin settled all claims with the plaintiff. Therefore, only Carmax remains as a relator in this writ application and accordingly, the remainder of this opinion is addressed solely to Carmax.

      La. R.S. 13:3201 provides, in pertinent part, as follows:
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.

      La. R.S. 13:3201 (A) provides that "[a] suit on a cause of action described in R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue. La. Stat. Ann. § 13:3203."


author: JUDGE SANDRA CABRINA JENKINS

text:
    Cassandra SMITH v. STATE of Louisiana, et al.
    NO. 2018-CA-0197
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 9, 2019
    William R. Mustian, III, STANGA & MUSTIAN, APLC, 3117 22nd Street, Suite 6, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Jeff Landry, Attorney General, Taylor M. Simon, Assistant Attorney General, LOUISIANA DEPARTMENT OF JUSTICE, LITIGATION DIVISION, 1450 Poydras Street, Suite 900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

This appeal arises out of a trip and fall accident. Plaintiff/Appellant Cassandra Smith alleges that she was entering the Crescent City Connection building in New Orleans, when she tripped over the rug at the entrance and fell. Ms. Smith appeals the trial court's January 12, 2018 judgment granting a Motion for Summary Judgment filed by the State of Louisiana through the Department of Transportation and Development ("DOTD"), which dismissed Ms. Smith's suit, with prejudice. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has a lengthy procedural history. On February 27, 2009, Ms. Smith filed a Petition for Damages against the DOTD, alleging that she tripped and fell on a rug as she was entering the Crescent City Connection building on March 14, 2008. According to Ms. Smith, she sustained serious injuries from the fall, including shoulder and neck injuries. The Petition sought damages for pain and suffering, disability and mental anguish, lost earnings and earning capacity, and medical and related expenses.

On March 17, 2015, the DOTD filed a Motion for Summary, seeking dismissal of Ms. Smith's suit on the grounds that the DOTD had no actual or constructive knowledge of the allegedly unreasonably dangerous rug, which Ms. Smith asserted was too close to the door, was unusually thick, and had a turned up corner.

After an evidentiary hearing, the trial court rendered a judgment on June 16, 2015 granting the DOTD's Motion for Summary Judgment and dismissing this action, with prejudice. On June 24, 2015, Ms. Smith filed a Motion for Appeal, which the trial court granted on June 25, 2015.

On January 14, 2016, this Court issued a sua sponte order directing the parties to show cause in writing why the appeal should not be dismissed because the June 16, 2015 judgment did not contain decretal language, and thus was not a final appealable judgment. On January 19, 2016, the DOTD filed an unopposed Ex Parte Motion to Amend Judgment in the trial court. The Amended Judgment, signed by the trial court on January 20, 2016, added the proper decretal language. On that date, the trial court ordered that the record be supplemented with the Amended Judgment. On January 21, 2016, Ms. Smith and the DOTD each filed responses to this Court's order to show cause, and attached the Amended Judgment.

On February 17, 2016, this Court issued an opinion dismissing Ms. Smith's appeal without prejudice on the grounds that the record could not be supplemented with the Amended Judgment because it was an entirely new judgment that must be appealed. This Court remanded the matter, stating that "[o]nce a final appealable judgment is rendered, a new appeal may be filed with this Court."

On January 12, 2018, the trial court rendered a second judgment granting DOTD's Motion for Summary Judgment, and dismissing the lawsuit, with prejudice. Ms. Smith timely filed a Motion for Appeal on February 8, 2018.

DISCUSSION

Standard of Review

"Appellate courts review summary judgments under the de novo standard of review, using the same standard applied by the trial court in deciding the motion for summary judgment; as a result, we are not required to analyze the facts and evidence with deference to the judgment of the trial court or its reasons for judgment." Orleans Parish Sch. Bd. v. Lexington Ins. Co. , 12-0095, p. 5 (La. App. 4 Cir. 8/28/13), 123 So.3d 787, 790. "We therefore look at the record before us and make an independent determination regarding whether there are genuine issues of material fact that would preclude granting summary judgment." Id.

Burden of Proof

"[I]n reviewing summary judgments, we remain mindful of which party bears the burden of proof." Orleans Parish Sch. Bd. , 12-0095 at p. 6, 123 So.3d at 790. "Although the burden of proof on a motion for summary judgment remains with the moving party, the mover's burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment." Id. at p. 6, 123 So.3d at 790-91. "[I]f the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 Acts, No. 422, effective January 1, 2016). Article 966(C)(2) further provides that "if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." La. Code Civ. P. art. 966(C)(2). For purposes of a motion for summary judgment, a "genuine issue" is a "triable issue." Bd. of Comm'rs of Port of New Orleans v. City of New Orleans , 13-0881, p. 6 (La. App. 4 Cir. 2/26/14), 135 So.3d 821, 825 (citation omitted). "If reasonable persons could disagree after considering the evidence, a genuine issue exists." Id. If, however, reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id. "In determining whether an issue is 'genuine,' courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Id. (quoting Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ).

Ms. Smith identifies a single assignment of error. She contends that the trial court erred in granting the DOTD's Motion for Summary Judgment when there were genuine issues of material fact in dispute regarding the DOTD's actual or constructive notice of the rug hazard.

La. R.S. 9:2800 : Limitation of Liability for Public Bodies

La. R.S. 9:2800 provides, in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
* * *
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

In order to recover under La. R.S. 9:2800, the plaintiff must prove that: (1) the thing which caused the damage was owned or in the custody of the public entity; (2) the thing was defective due to a condition creating an unreasonable risk of harm; (3) the entity had actual or constructive notice of the defective condition yet failed to take corrective action within a reasonable period of time; and (4) the defect was the cause of the plaintiff's harm. Bridgewater v. New Orleans Regional Transit Auth. , 15-0922, p. 8 (La. App. 4 Cir. 3/9/16), 190 So.3d 408, 413 (citation omitted).

The DOTD moved for summary judgment solely on the grounds that it had no actual or constructive notice of the allegedly defective rug. In support of its motion, the DOTD introduced the affidavits of DOTD employees Jo Ann Fernandez and Margaret Hepting. Ms. Fernandez attested that, as safety coordinator, she maintained a set of log books that documented any accidents that occurred in the Crescent City Connection building. Ms. Fernandez reviewed the log books spanning the period from 1987 to April 2008, and attested that there was only one slip and fall in the building, which did not involve a rug. Ms. Hepting, who is a loss prevention/safety officer, attested to the accuracy of the log books, and corroborated Ms. Fernandez's statements about the single prior slip and fall.

In opposition to the DOTD's Motion for Summary Judgment, Ms. Smith introduced the following deposition testimony of Lynell Parker, who was a receptionist at the front desk near the entrance to the building. Ms. Parker described her experience with the rug as follows:

Q. Now, you said that - I think you read something from the summary of the statement that - observing the rug being flat that day.
A. Um-hmm.
Q. Were you specifically looking at the rug for any particular reason that day?
A. I always pass by that rug and look at that rug.
Q. Why do you look at it?
A. Because I'm always straightening it up.
Q. You're always straightening it up?
A. Yes.
Q. Why - why is that?
A. Because if it's - if it's more over to the left or more over to the right or they have trash on it, I'm picking it up.
Q. Okay. Do those rugs have a tendency to move?
A. Not really, no.
Q. Okay. Did you - did you sometimes have to - it would have a - get - the top part might get bent up and you have to put that back down flat? Would that happen?
A. If somebody walks over it like that.
Q. Okay. So you've seen that happen before?
A. Yes.

Ms. Parker continued:

Q. Okay. So sometimes people would - would come in and - and like the edge of the rug would get puckered up a little bit?
A. Yes.
Q. And you would have to straighten that out?
A. Not - not often.
Q. Okay. But it happened before - certainly you had that experience before Ms. Smith's - the day she fell.
A. Before that, yes.

A public entity may not be found liable under Article 2317 unless it is also shown that the entity had actual or constructive notice of the defect yet failed to correct it within a reasonable period. La. R.S. 9:2800(B). Actual notice is given under La. R.S. 9:2800 by "reporting the defect to a governmental employee who has a duty 'either to keep the property involved in good repair or to report dangerous conditions to the proper authorities.' " Hanson v. Benelli , 97-1467, p. 15 (La. App. 4 Cir. 9/30/98), 719 So.2d 627, 636. Given that the DOTD's two safety officers, Ms. Fernandez and Ms. Hepting, testified that they never received reports that the rug was a safety hazard, Ms. Smith cannot show that the DOTD had actual notice of the allegedly defective rug.

"Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury." Gardner v. Louisiana Superdome , 13-1548, p. 6 (La. App. 4 Cir. 5/7/14), 144 So.3d 1105, 1109 (citation omitted).

With respect to the temporal element of constructive notice, Ms. Parker testified that she began working as a receptionist in the DOTD building one month before Ms. Smith's accident. Ms. Parker's testimony establishes that, in the one-month period prior to Ms. Smith's slip and fall, the rug at the entrance to the DOTD building had a tendency to bend or "pucker," and that Ms. Parker would sometimes have to straighten or flatten the rug. With Ms. Parker's testimony, we find that Ms. Smith has presented factual support sufficient to establish the existence of a genuine issue of material fact on the element of notice. We find that reasonable persons could reach differing conclusions as to whether the DOTD had constructive notice of the defective rug, i.e. , whether it existed for such a period of time that, by the exercise of reasonable care, the DOTD should have known of its existence. Cf. Lewis v. Jazz Casino Co. , 17-0935, p. 12 (La. App. 4 Cir. 4/26/18), 245 So.3d 68, 76 (under La. R.S. 9:2800.6, "whether the period of time was sufficient to create constructive notice is a factual question reserved for the jury"), writ denied , 18-0757 (La. 9/21/18), 252 So.3d 877.

We, therefore, conclude upon our de novo review that the trial court erred in granting summary judgment in favor of the DOTD.

CONCLUSION

For the foregoing reasons, we reverse the trial court's January 12, 2018 judgment granting the DOTD's Motion for Summary Judgment, and remand for further proceedings.

REVERSED AND REMANDED

      The legislature expressly provided that the 2015 amendment did not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. Jones v. Stewart , 16-0329, p. 7 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389 n.5. Because the DOTD's Motion for Summary Judgment was filed before the 2016 effective date of the Act, we apply the former version of the article in this case.

      The trial court, however, erroneously granted summary judgment to the DOTD based on the testimony of a DOTD employee that the rug was flat right before Ms. Smith fell. This testimony relates to the causation element of La. R.S. 9:2800, not the notice element, which was the sole basis for the DOTD's Motion for Summary Judgment. Under La. C.C.P. art. 966(F), "[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time."


author: CHAISSON, J.

text:
    Jennifer A. LOYOLA v. James A. LOYOLA
    NO. 18-CA-554
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, JENNIFER A. LOYOLA, Robert C. Lowe, Marynell L. Piglia, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, JAMES A. LOYOLA, Rachel L. Moss
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

In this case arising from divorce proceedings, Dr. James Loyola appeals an April 26, 2018 judgment denying his Motion for New Trial following a November 30, 2017 judgment of the trial court granting a Petition to Enforce a Compromise Agreement filed by Ms. Jennifer Loyola. For the following reasons, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

The parties argued the merits of the Motion for New Trial at an April 9, 2018 hearing, during which the trial court denied the motion in open court. The judgment denying the Motion for New Trial was signed on April 26, 2018, and the clerk of court mailed notice of the judgment on May 1, 2018.

On May 23, 2018, Dr. Loyola filed a Notice of Intent to Apply for Supervisory Writ wherein he sought review of the trial court's November 30, 2017 judgment and subsequent denial of his Motion for New Trial. An Application for Supervisory Writ was never filed with this Court.

On July 11, 2018, counsel for Dr. Loyola filed a Motion for Appeal of the November 30, 2017 and April 26, 2018 judgments wherein counsel argued that the clerk of court mailed the notice of judgment to the incorrect address. The trial court granted the Motion for Appeal on July 11, 2018. Ms. Loyola has filed a Motion to Dismiss Dr. Loyola's appeal as untimely.

DISCUSSION

The rules establishing the time delays applicable in this case are set forth in La. C.C.P. articles 3942, 3943, and 2087. Under these articles, an appeal from a judgment awarding custody, visitation, or support of a person can be taken within thirty days of either: 1) the expiration of the delay for applying for a new trial, if no application has been timely filed; or 2) the date of the mailing of the notice of the court's refusal to grant a timely filed application for a new trial. Accordingly, Dr. Loyola had thirty days from May 1, 2018, when the clerk of court mailed notice of the April 26, 2018 judgment to file his appeal, which makes his July 11, 2018 Motion for Appeal untimely on its face.

In his Motion for Appeal, Dr. Loyola stated that his motion was timely filed because the clerk of court mailed the notice of judgment to an incorrect address located at 406 Magazine Street, which is contrary to the requirements set forth in La. C.C.P. art. 1913. In his Motion for Appeal, Dr. Loyola did not argue that he had never received the notice of judgment, though he does make this claim for the first time before this Court in his opposition to the Motion to Dismiss.

When an appellant fails to timely file an appeal, the appellate court lacks jurisdiction to consider the appeal.

Morice v. Alan Yedor Roofing & Constr. , 16-532 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1076 (citing Alexander v. Maki , 15-517 (La. App. 5 Cir. 1/4/16), 183 So.3d 821, 823 ). This Court has previously held that the plain wording of La. C.C.P. art. 1913 clearly requires the clerk of court to mail notice of the signing of a final judgment to the counsel of record for each party. Hacienda Constr., Inc. v. Newman , 10-18 (La. App. 5 Cir. 6/29/10), 44 So.3d 333, 336. The purpose of the requirement that the clerk of court mail notice of final judgment is to give parties notice of judgment in order to timely move for a new trial or appeal. Albitar v. Albitar , 16-167 (La. App. 5 Cir. 6/30/16), 197 So.3d 332, 340. In a few reported cases, this Court has held that actual knowledge of the signing of the judgment outside of the record and absent compliance with the mailing or service requirement is not sufficient to cause new trial and appeal delays to commence. Morice , supra ; 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C. , 13-588 (La. App. 5 Cir. 2/26/14), 136 So.3d 313, 316 ; Hacienda Constr.,Inc. , supra . However, this Court has also recognized that a party may file motions on the record in the trial court by which he may be deemed to either have notice or waive notice of the judgment. Albitar , supra .

The record in this case shows that Dr. Loyola was aware of the judgment denying his Motion for New Trial: the transcript of the April 9, 2018 hearing where the motion was considered shows that the motion was denied in open court, and the filing of the Notice of Intent to Seek Supervisory Writ on May 23, 2018, in which Dr. Loyola sought supervisory review of the April 26, 2018 judgment denying the Motion for New Trial. While it is unclear from the record whether the notice of judgment mailed by the clerk's office was sent to the incorrect address, Dr. Loyola had actual notice of the judgment at least as soon as May 23, 2018. Even calculating the delay for filing a motion for appeal thirty days from this date still places Dr. Loyola's July 11, 2018 filing of the Motion for Appeal as untimely. Accordingly, this Court lacks jurisdiction to hear this appeal, and the Motion to Dismiss is granted.

DECREE

Because Dr. Loyola's Motion for Appeal was untimely filed, this Court lacks jurisdiction to hear this appeal. Ms. Loyola's Motion to Dismiss this appeal is granted.

APPEAL DISMISSED

      Here we note that Dr. Loyola's Motion for New Trial was timely filed, as it was filed within seven days of the signing of the judgment granting the petition to enforce the compromise agreement. See La. C.C.P. 1974.


author: COX, J.

text:
    Reginald D. BROWN, Plaintiff-Appellant v. MONROE MUNICIPAL FIRE AND CIVIL POLICE SERVICE BOARD, Hardeman Cordell, Sr., Chairperson Billy Woods, Alfred Rayford, Benjamin Baw, Defendants-Appellees
    No. 52,537-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered December 17, 2018
    PLEASANT, WILLIAMS & BANKS-MILEY LAW GROUP, LLC, By: Jessica W. Williams, Rocky Mount, Kristen B. Pleasant, Monroe, Donecia Banks-Miley, Counsel for Appellant
    HAMMONDS, SILLS, ADKINS & GUICE, LLP, By: Elmer G. Noah, II, Justin N. Myers, Monroe, Counsel for Appellees
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   COX, J.

Corporal Reginald D. Brown filed suit against the Monroe Municipal Fire and Police Civil Service Board ("Board"), Hardeman Cordell, Sr., Billy Woods, Alfred Rayford, and Benjamin Baw on October 25, 2017, alleging a violation of the Open Meetings Law. The trial court granted the Board's exceptions of no cause of action and lack of subject matter jurisdiction, dismissing the suit. Cpl. Brown has appealed the trial court's ruling. For the following reasons, we affirm.

FACTS

Cpl. Brown submitted his application to the Board to take the examination for the position of Chief of Police for the City of Monroe, Louisiana ("exam"). At a public meeting on October 17, 2017, the Board determined that Cpl. Brown did not qualify to take the exam and rejected his application.

On October 25, 2017, at 4:10 p.m., Cpl. Brown's counsel emailed the Board's attorney, informing him that she intended to file "a preliminary injunction against administering the police chief exam and a hearing to show cause on other matters." The Board's attorney responded at 4:28 p.m. that he had been trying to reach her office since 8:30 a.m. to notify her that a special meeting had already been scheduled earlier that day for October 31, 2017, to discuss the reconsideration of Cpl. Brown's application to sit for the police chief exam. Cpl. Brown's petition was then filed at 4:30 p.m.

Cpl. Brown alleged in his petition that the Board violated the Louisiana "Open Meetings Law" ( La R.S. 42:11 et seq. ) on October 17, 2017, by asking members of the public to leave the meeting without a formal motion and vote by two-thirds of the members. He further alleged the Board violated the Open Meetings Law by discussing his competency without notifying him, in writing, within 24 hours of the meeting.

At the Board's meeting on October 31, 2017, the members reconsidered Cpl. Brown's application. The Board determined that Cpl. Brown did, in fact, meet one of the qualifications through his education and unanimously voted to allow him to sit for the exam. Cpl. Brown sat for the police chief exam on November 16, 2017, on its originally scheduled date.

The Board filed exceptions to Cpl. Brown's petition. The first was an exception of subject matter jurisdiction/mootness. The Board argued that if there were violations of the Open Meetings Law, those violations were cured when the special meeting was held. It stated that in the absence of a controversy, the lawsuit was moot. In the alternative, the Board argued three additional exceptions: no cause of action, improper cumulation of actions, and insufficiency of service of process. Judgment was rendered in open court on May 10, 2017. The district court granted the Board's exceptions of lack of subject matter jurisdiction/mootness and no cause of action. Cpl. Brown's petition was dismissed with prejudice at his cost.

DISCUSSION

First, Cpl. Brown argues that the district court erred and incorrectly granted the exception of lack of subject matter jurisdiction/mootness. Cpl. Brown argues the first meeting violated the Open Meetings Law because the Board asked members of the public to leave before voting on all the candidates. He alleges the violation was not cured at the second meeting because the Board revoted only on his application and not the other candidates.

This argument was not made at the trial court. Cpl. Brown's petition alleged that his application and competency were discussed and voted on during an illegally closed session and that he was not properly notified. His petition did not mention voting on the other applicants as a problem. It is improper for Cpl. Brown to raise new arguments on appeal that were not pled at the trial level. We limit our review to the issues properly before us.

The jurisprudence of this State is well settled that courts will not decide abstract, hypothetical, or moot controversies. In order to avoid deciding abstract, hypothetical, or moot questions, courts require cases submitted for adjudication to be justiciable, ripe for decision, and not brought prematurely. Cat's Meow, Inc. v. City of New Orleans Through Dep't of Fin. , 98-0601 (La. 10/20/98), 720 So.2d 1186. A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id. ; Caddo Fed'n of Teachers & Support Pers. v. Caddo Par. Sch. Bd. , 47,489 (La. App. 2 Cir. 9/26/12), 106 So.3d 603.

We agree with, and adopt, the trial court's reasons for determining the case is moot:

Now, ultimately Mr. Brown got everything he could have gotten from the board. He was allowed to sit for the exam. To take the exam. [G]iven at least two weeks to do so and ultimately did take the exam. He got everything he could have asked for. Everything he could have asked for and everything that would have [given] him consideration for chief of police... Everything else is moot because he's gotten everything that he could have asked for and the injunctive relief, of course, became moot when he was given the opportunity to sit for the exam.

Given that Cpl. Brown was allowed to sit for the exam, we find there is no remaining practical relief and the issue is moot. This assignment lacks merit.

Second, Cpl. Brown argues the trial court erred and incorrectly granted the exception of no cause of action. He asserts that his petition alleges specific facts that would support his claim that there was a violation of the Open Meetings Law. He claims the trial court looked outside of his petition to conclude there was no violation.

We do not agree with Cpl. Brown's argument. There is no indication that the trial court looked at evidence outside of the pleadings and attachments. The trial court stated that even if it were to hold that there was a violation of the Open Meetings Law, that violation would have been cured at the second meeting, citing Delta Dev. Co., Inc. v. Plaquemines Par. Comm'n Council , 451 So.2d 134 (La. App. 4 Cir. 1984), writ denied , 456 So.2d 172 (La. 1984).

La. R.S. 42:24, entitled "Voidability," states that any action taken in violation of the Open Meetings Law "shall be voidable by a court of competent jurisdiction" and that a "suit to void any action must be commenced within sixty days of the action." A simple reading of this section compels the conclusion that an action taken by a public body without compliance with the Open Meeting Law is not an absolute nullity. Delta Dev. Co., Inc. v. Plaquemines Par. Comm'n Council, supra . General law and common sense dictate that a resolution which is not absolutely null and void, which came into being and existence when adopted, but which may be subsequently declared void because of technical violations of the law, may be corrected by ratification, provided the ratification is adopted after full compliance with the law. Id. The court in Delta Dev. Co., Inc. , stated that if the Council's original action was a violation, the injury or harm to the public was cured when the action was ratified at a second meeting.

We find this case to be similar to Delta Dev. Co., Inc., supra. Cpl. Brown concedes that the second meeting held by the Board was in compliance with the Open Meetings Law. Therefore, if there was any violation of the Open Meetings Law at the first meeting, it was cured at the second meeting. There was no reason for the trial court to reach a conclusion whether there was a violation at the first meeting because the second meeting was in compliance and ratified the first meeting. The trial court correctly granted the exception of no cause of action. This assignment lacks merit.

In his final argument, Cpl. Brown argues that the trial court erred in denying his request for attorney fees and costs. He argues that by filing suit, he provoked the Board to reverse itself thereby allowing him to sit for the exam. He points out that although the Board argues it was going to call the meeting regardless of the lawsuit, he was not notified of the second meeting until after the lawsuit was filed.

La. R.S. 42:26 provides:

If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof. If the court finds that the proceeding was of a frivolous nature and was brought with no substantial justification, it may award reasonable attorney fees to the prevailing party.

The trial court concluded, as supported by the record, that after the decision had been made to reconsider Cpl. Brown's application, the lawsuit was filed. Correspondence between legal counsel is included in the record. As noted above, the time stamps on the emails and petition indicate the Board had already decided to hold a special meeting regarding Cpl. Brown's application before the suit was filed. The meeting notice mailed to Cpl. Brown's counsel was postmarked October 25, 2017, although it was not marked "received" until October 27, 2017.

Based on the record, we do not find that Cpl. Brown prevailed in his suit, which would have possibly allowed an award of attorney fees. Further, we do not agree with Cpl. Brown's argument that his suit provoked the Board to reconsider his application as a meeting had already been scheduled before the suit was filed. We conclude that the trial court did not err in denying Cpl. Brown's request for attorney fees and costs. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's granting of the Board's exceptions of no cause of action and lack of subject matter jurisdiction. Costs associated with this appeal are assessed to the Appellant, Reginald D. Brown.

AFFIRMED.


author: JUDE G. GRAVOIS, JUDGE

text:
    Charles Henry JACKSON v. Simona D. MORTON
    NO. 18-CA-263
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CHARLES HENRY JACKSON, Tonya S. Johnson
    COUNSEL FOR DEFENDANT/APPELLEE, SIMONA D. MORTON, Christy M. Howley, Gretna, M. Elizabeth Bowman, New Orleans
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
   JUDE G. GRAVOIS, JUDGE

Appellant, Charles Henry Jackson, appeals a final judgment rendered on March 15, 2018 in favor of appellee, Simona D. Morton, on her Motion to Withdraw Funds from the Registry of the Court. At issue is the parties' entitlement to the proceeds from the sale of their co-owned home made pursuant to a previous judgment on Mr. Jackson's Petition for Judicial Partition signed on November 17, 2016. Mr. Jackson argues on appeal that the trial court erred in awarding Ms. Morton the entirety of the funds deposited into the registry of the court ($59,287.72), after previously ruling that she was entitled to half of the proceeds from the sale of the home. For the following reasons, we affirm the judgment in favor of Ms. Morton.

PROCEDURAL HISTORY AND FACTS

This is the parties' second appeal before this Court. Previously, this Court summarized the relevant facts as follows:

Mr. Jackson and Ms. Morton were a co-habiting, unmarried couple for numerous years. Two children were born from their relationship: Kaelin Jackson and Joshua Jackson. On March 27, 2003, Mr. Jackson purchased the property located at 2716 Conor Court in Marrero, Louisiana, and mortgaged the property in his name. On the same day, Mr. Jackson placed Ms. Morton into unconditional and irrevocable possession of one-half interest of the property pursuant to an act of inter vivos donation in consideration of love and affection he had for Ms. Morton.
The parties resided together until November 11, 2014, when Mr. Jackson was arrested for domestic abuse battery and had a temporary restraining order issued against him. Mr. Jackson did not return to the home while Ms. Morton was present, even after the restraining order had expired.
On August 27, 2015, Mr. Jackson filed a "Petition for Judicial Partition." In his petition, Mr. Jackson alleged that Ms. Morton failed to contribute to the mortgage, taxes or homeowner's insurance, and that Ms. Morton should be held accountable to him for the expenses of the mortgage, maintenance, management and repairs of the property pursuant to La. C.C. art. 806. He averred that he was also entitled to his share of rental reimbursements from the time of Ms. Morton's exclusive use of the property until the time of the partition. Ms. Morton answered Mr. Jackson's petition, denying any liability for the mortgage or rent for the property, and filed a reconventional demand, asserting that she was entitled to exclusive use of the property and reimbursement of all funds she expended towards the upkeep, mortgage, taxes and insurance on the property.
The parties entered into a Consent Judgment on February 29, 2016, agreeing that Mr. Jackson would enjoy exclusive use of the property and would be solely responsible for the expenses and upkeep of the home pending the partition of the property.
The matter proceeded to a bench trial on November 4, 2016. At the conclusion of Mr. Jackson's presentation of his case, Ms. Morton orally moved for a motion for involuntary dismissal which was granted in part by dismissing Mr. Jackson's claims for mortgage reimbursement, off-set for taxes and rental reimbursement. In open court, the trial court ordered that the property be sold by private sale and the proceeds be split between Mr. Jackson and Ms. Morton. The trial court further ordered reimbursement to Mr. Jackson by Ms. Morton in the amount of $1,460.31 for improvements to the home. A written judgment to that effect was rendered on November 17, 2016. All other claims were dismissed, and each party had to bear his/her own costs.

Jackson v. Morton , 17-194 (La. App. 5 Cir. 11/15/17), 232 So.3d 685, 686-87.

In his Petition for Judicial Partition, Mr. Jackson had sought reimbursement from Ms. Morton for one-half of "all expenses from the purchase of the home," claiming that she owed him reimbursement for one-half of all of the mortgage payments he had made since the purchase of the home on March 27, 2003. At the hearing on the Petition for Judicial Partition on November 4, 2016, the trial court explicitly found that Ms. Morton was not liable for the mortgage encumbering the home, it being a nonpossessory obligation entered into solely by Mr. Jackson, and thus she did not owe him reimbursement for mortgage payments made by him, notwithstanding his inter vivos donation to her, also on March 27, 2003, of an undivided one-half co-ownership interest in the home. Thereafter, on November 17, 2016, the trial court issued a written judgment granting the Petition for Judicial Partition, ordering that the home be sold by private sale, and ordering that the proceeds of the sale be divided evenly between the co-owners (Ms. Morton and Mr. Jackson).

Mr. Jackson appealed the judgment. In the first appeal, Mr. Jackson's sole assignment of error was that the trial court erred in failing to award him reimbursements from Ms. Morton for mortgage payments made by him from November 2014 through February 29, 2016, the time during which Ms. Morton had exclusive use of the co-owned home. This Court affirmed the trial court's judgment in its opinion dated November 15, 2017. Jackson v. Morton , supra , 232 So.3d at 688.

Meanwhile, according to the record of this proceeding, during the pendency of the first appeal, the house was sold for $150,000.00, which after deducting $14,802.28 in closing costs and other adjustments attributable to the sellers (excluding the mortgage payoff), left "gross" proceeds of $135,197.72. The balance due at the time of the closing on the mortgage encumbering the home in the amount of $75,910.00 was then deducted from the gross proceeds at the closing, leaving net closing proceeds of $59,287.72.

On July 31, 2017, Ms. Morton filed a Motion and Order to Deposit Funds into the Registry of the Court, asserting that the parties had agreed to deposit the funds from the sale of the home into the registry of the court until the appeal had concluded. Pursuant thereto, the sum of $59,287.72 was deposited into the registry of the court.

On February 9, 2018, the Supreme Court denied Mr. Jackson's writ application seeking review of this Court's November 15, 2017 opinion. Jackson v. Morton , 17-2094 (La. 2/9/18), 236 So.3d 1263. On February 15, 2018, Ms. Morton filed a Motion to Withdraw Funds from the Registry of the Court, contending that pursuant to this Court's judgment of November 15, 2017, she was entitled to half of the gross proceeds of the sale, or $70,098.46, and therefore she was entitled to the entirety of the funds deposited into the registry of the court ($59,287.72), plus accrued interest.

Mr. Jackson opposed the motion, arguing that the trial court judgment (which had previously been affirmed by this Court) denied only his claim for reimbursement of mortgage payments he made between November 2014 through February 29, 2016, and that the judgment awarding each of them half of the proceeds meant the proceeds after the mortgage had been satisfied, not the proceeds as calculated before subtracting the amount due on the mortgage.

The trial court heard the Motion to Withdraw on March 15, 2018. At the hearing, the trial judge noted that he remembered the case, and that his previous judgment awarding the parties each one-half of the proceeds meant that Ms. Morton's half interest in the home was to be satisfied from the proceeds deposited into the registry of the court. Accordingly, the trial judge signed a judgment dated that same day awarding Ms. Morton the entirety of the funds deposited into the registry of the court ($59,287.72). Mr. Jackson now appeals.

On appeal, Mr. Jackson raises two assignments of error, to-wit:

1. The trial court erred when it ruled that Ms. Morton is entitled to the entirety of the proceeds of the sale via a Motion to Withdraw, when the original judgment was clear and unambiguous that proceeds of the sale should be split equally between the parties; and
2. The trial court committed manifest error when it did not consider that the property acquired by Ms. Morton was property donated to her by Mr. Jackson subject to the charges as set forth in Louisiana Civil Code article 1549.

ANALYSIS

Essentially, the issue to be determined in Mr. Jackson's first assignment of error is what did the trial court mean in the statement contained in its November 17, 2016 judgment that "[t]he proceeds of said house are to be divided equally between the co-owners."

The Closing Disclosure statement pertaining to the sale of the home contained in the record reflects that the sale price of the home was $150,000.00, and that the closing costs and other adjustments attributable to Mr. Jackson and Ms. Morton as sellers (excluding the mortgage payoff) was $14,802.28, leaving $135,197.72 as the gross proceeds of the sale to be divided equally between Mr. Jackson and Ms. Morton (or $67,598.86 each). However, the amount due on the mortgage on the home ($75,910.00) was paid out of the gross proceeds of the sale at the closing, leaving net proceeds from the closing of only $59,287.72, which is the amount that was subsequently deposited into the registry of the court.

Upon review, considering that the trial court found in its November 17, 2016 judgment that Ms. Morton was not responsible for the mortgage payments on the home (which finding was affirmed by this Court on appeal), we find that when the trial court stated that "[t]he proceeds of said house are to be divided equally between the co-owners," it is clear that the trial court intended that the gross proceeds of the sale remaining after the closing costs and other adjustments attributable to the sellers were deducted (excluding the mortgage payoff) ($135,197.72) would be divided equally between Mr. Jackson and Ms. Morton (or $67,598.86 each). In reality, Mr. Jackson's entire share of the gross proceeds of the sale ($67,598.86), plus a portion of Ms. Morton's share of the gross proceeds of the sale ($8,311.14), were used to satisfy Mr. Jackson's mortgage indebtedness encumbering the property ($75,910.00), leaving the entirety of the net proceeds of the sale ($59,287.72) to be due and payable to Ms. Morton. We thus find no merit to Mr. Jackson's argument that the judgment under review is inconsistent with the trial court's judgment of November 17, 2016 as affirmed by this Court in the prior appeal. This assignment of error is without merit.

In his second assignment of error, Mr. Jackson argues that in awarding Ms. Morton the entirety of the amount held in the registry of the court, the trial court erred in not holding Ms. Morton liable for the balance of the mortgage due on the property at the time it was sold in July of 2017. He argues that under La. C.C. art. 1549, Ms. Morton accepted the donation of half ownership of the home subject to the mortgage, and thus the trial court erred in awarding her all of the money in the registry of the court, rather than half.

In the proceedings below preceding the partition judgment of November 17, 2016, the issue of whether Ms. Morton was liable for the mortgage was squarely at issue and was resolved in Ms. Morton's favor. Prior to the partition judgment of November 17, 2016, Mr. Jackson's arguments to the trial court included citation of La. C.C. art. 1549 that Ms. Morton had accepted the donation of the home subject to the mortgage obligation. The trial judge rejected that argument and it was explicit in the transcript of the hearing on November 4, 2016 that he found Ms. Morton was not responsible for the mortgage on the property.

In the first appeal, this Court held:

A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares. La. C.C. art. 806. The law is settled that under La. C.C. 806, a co-owner who has incurred necessary expenses is entitled to reimbursement from the other co-owners; however, a mortgage is not such an expense. Slimp v. Sartisky , 11-1677 (La. App. 4 Cir. 9/17/12), 100 So.3d 901, 921, rehearing granted and amended on other grounds, (La. App. 4 Cir. 10/11/12); Roger v. Roger , 99-765 (La. App. 5 Cir. 1/12/00), 751 So.2d 354, 356, writ denied, 00-442 (La. 3/31/00), 759 So.2d 73, citing Roque v. Tate , 93-389 (La. App. 5 Cir. 2/9/94), 631 So.2d 1385, 1386. The mortgage is "a nonpossessory right created over property to secure the performance of an obligation." Id. , citing La. C.C. art. 3278.
In this matter, Mr. Jackson entered into a mortgage with Standard Mortgage Corporation for the property in question for $105,183. It is unclear whether the mortgage was signed before or after the act of donation; however, Mr. Jackson was the only person who signed and obligated himself to paying the mortgage. Because he and Ms. Morton were co-owners of the property and a mortgage is not an expense subject to reimbursement under La. C.C. 806, Mr. Jackson did not and could not prove that he was entitled to mortgage reimbursement from Ms. Morton. See , Slimp , supra . Therefore, we find that the trial court properly granted the motion for involuntary dismissal, in part, at the conclusion at Mr. Jackson's case-in-chief on the issue of mortgage reimbursement.

Jackson v. Morton , supra , 232 So.3d at 687-88. Considering this Court's holding in the previous appeal, it is clear that the issue of mortgage reimbursement from Ms. Morton to Mr. Jackson has previously been determined, and thus, that issue is res judicata. As such, the trial court's judgment granting Ms. Morton's Motion to Withdraw Funds and awarding her the entirety of the funds in the registry of the court is legally consistent with its prior judgment, as affirmed by this Court, that Ms. Morton is not liable for the mortgage obligation. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment granting Ms. Morton's Motion to Withdraw Funds from the Registry of the Court.

AFFIRMED

      Throughout the trial and in briefs to this Court, the parties referenced the motion as a motion for directed verdict. However, this matter was tried before a judge, not a jury; thus, the applicable motion was a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B). Motions for involuntary dismissal are applicable to cases tried in a bench trial. Because this matter was tried in a bench trial, we will address the granting of the motion for involuntary dismissal. (This footnote was contained in the original opinion. )

      As noted in the statement of relevant facts from the first appeal, the court granted Mr. Jackson's claims for maintenance reimbursement in the amount of $1,460.31, but denied his claim for mortgage reimbursement, off-set for taxes, and rental reimbursement.

      The term "gross" proceeds is used herein to describe the sale price minus closing costs and other adjustments attributable to the sellers (excluding the mortgage payoff), which deductions are not in dispute.

      Although in her Motion and Order to Withdraw Funds from the Registry of the Court Ms. Morton asserts that the proceeds from the sale to be divided between her and Mr. Jackson after deducting costs was $140,196.93 (or $70,098.46 each), the Closing Disclosure statement pertaining to the sale of the home contained in the record reflects that the actual closing costs and other adjustments attributable to Mr. Jackson and Ms. Morton as sellers of the home (excluding the mortgage payoff) was $14,802.28, leaving $135,197.72 as the gross proceeds of the sale, rather than $140,196.93 as asserted by Ms. Morton.

      The judgment also awarded Ms. Morton "interest from the date of judicial demand."

      Should Ms. Morton proceed to attempt to collect such funds from Mr. Jackson, it appears that she would owe him a credit of $1,460.31 for maintenance reimbursement as ordered by the trial court following the trial on the merits of Mr. Jackson's Petition for Judicial Partition, as noted above.

      La. C.C. art. 1549 provides: "The donee acquires the thing donated subject to all of its charges, even those that the donor has imposed between the time of the donation and the time of the acceptance." It is noted that at the time of the donation in 2003, the applicable article was La. C.C. art 1551, which provided: "The property given passes to the donee with all of its charges, even those which the donor has imposed between the time of the donation and that of the acceptance."

      Mr. Jackson also claimed Ms. Morton should reimburse him for property taxes and insurance, which claims were also rejected by the trial court on an evidentiary basis.


text:
    Joseph SIMMONS, Jr. v. Cornell JACKSON and the Parish of Jefferson, State of Louisiana
    NO. 18-CA-141
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    PLAINTIFF/APPELLANT, JOSEPH SIMMONS, JR., In Proper Person
    COUNSEL FOR DEFENDANT/APPELLEE, CORNELL JACKSON AND THE PARISH OF JEFFERSON, STATE OF LOUISIANA, Michael S. Futrell, Metairie
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

In this case arising out of an automobile accident, Joseph Simmons, Jr. appeals a December 6, 2017 judgment in favor of Cornell Jackson and the Parish of Jefferson. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On November 8, 2013, Mr. Jackson, a Jefferson Parish employee, was driving east on the Westbank Expressway Service Road in Marrero when his vehicle collided with a vehicle driven by Mr. Simmons, who was attempting to cross the service road at its intersection with Robinson Avenue. At this intersection, there is no traffic control device for the service road, but there is a stop sign controlling traffic traveling on Robinson Avenue.

On June 24, 2014, Mr. Simmons filed a petition for damages in which he alleged that Mr. Jackson, who was acting in the course and scope of his employment with the Parish, was negligent in failing to yield the right of way, failing to maintain control of his vehicle, reckless and negligent operation of his motor vehicle, failing to see what should be seen, and other acts of negligence which caused the accident. Mr. Simmons prayed for recovery for his damages, which included bodily injury, mental anguish, medical expenses, loss of earnings and earning capacity, and other economic loss.

In their answer to Mr. Simmons' petition, defendants averred that the sole and proximate cause of Mr. Simmons' damages was his own negligence or fault, in particular: failing to see what should have been seen, failing to use proper care, and disregarding a stop sign.

The case proceeded to a bench trial on November 29, 2017. Both Mr. Simmons and Mr. Jackson testified as to their recollections of the accident. The court also heard testimony from the investigating officer, Louisiana State Trooper Henry J. Thompson, III, and received into evidence his police report, which contained a statement from an "anonymous" witness to the accident. The deposition of defendants' expert witness in accident reconstruction, Vernon O. Tekell, Jr., was also received into evidence. Both Trooper Thompson and Mr. Tekell shared the opinion that the accident at issue was caused by the fault of Mr. Simmons.

The court rendered judgment on December 6, 2017, in favor of defendants. In its written reasons for judgment, the trial court found that Mr. Simmons failed to meet his evidentiary burden. In his appeal of this judgment, Mr. Simmons raises two assignments of error: first, the trial court erred in admitting the deposition testimony of the expert witness, Mr. Tekell; and second, the trial court erred in admitting hearsay evidence when it allowed Trooper Thompson to narrate the statement from the anonymous witness. Although not specifically assigned as error, Mr. Simmons also argues that the trial court erred in finding that he was at fault in causing this accident and that Mr. Jackson was free from fault.

DISCUSSION

Beginning with Mr. Simmons' first assignment of error, under La. C.E. art. 103, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and a timely objection stating the specific ground of the objection appears in the record. At trial, Mr. Simmons did not object to the introduction of Mr. Tekell's deposition transcript into evidence, and therefore, pursuant to La. C.E. art. 103, this assignment of error is without merit. Burgard v. Allstate Ins. Co. , 04-1394 (La. App. 5 Cir. 5/31/05), 904 So.2d 867, 879 ; see also Petre v. State ex rel. Department of Transp. & Dev. , 00-545 (La. App. 3 Cir. 12/29/00), 775 So.2d 1252, 1265.

Turning next to Mr. Simmons' contention that the trial court erred in admitting hearsay evidence, a review of the transcript of the trial proceedings shows that although Mr. Simmons objected to Trooper Thompson's reading aloud the anonymous witness's account of the accident, which objection was sustained, Mr. Simmons' counsel specifically stated that he had no objection to the introduction of Trooper Thompson's accident report that contained the witness's statement. Having failed to object at trial to the introduction of the accident report, Mr. Simmons has failed to preserve this objection for appeal and this assignment of error is also without merit. La. C.E. art. 103 ; Burgard , supra.

Although Mr. Simmons did not specifically assign as error the trial court's factual determinations regarding fault, we nevertheless address Mr. Simmons' argument that the trial court erred in finding that he was at fault in causing this accident and that Mr. Jackson was free from fault.

The court of appeal may not disturb the conclusions of the factfinder in the absence of manifest error or unless a particular finding of fact is clearly wrong. Estes v. Wal-Mart Stores, Inc. , 01-289 (La. App. 5 Cir. 10/17/01), 800 So.2d 1018, 1022. The question is not whether the factfinder was right or wrong, but whether the conclusion was a reasonable one. Id. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Thus, where there are two views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. When findings are based on determinations regarding the credibility of witnesses, the manifest error - clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations of demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Loya v. Loya , 17-555 (La. App. 5 Cir. 2/21/18), 239 So.3d 1048, 1054 (citing Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) ).

In this case, the trial court was presented with conflicting testimony concerning the facts leading up to the automobile accident. Mr. Simmons, who was traveling south on Robinson Avenue, was confronted with a stop sign at that intersection. There is no stop sign, or other traffic control device, directing the movement of vehicles traveling on the service road at its intersection with Robinson Avenue; therefore, vehicles traveling on the service road have the right of way at this intersection.

Mr. Simmons testified that he came to a complete stop at the stop sign and looked for approaching traffic on the service road before attempting to cross the intersection. He also testified that he did not see any vehicles approaching on the service road and specifically that he did not see Mr. Jackson's vehicle before the impact. Although Mr. Simmons could offer no explanation as to where Mr. Jackson's vehicle came from, his testimony regarding a bar parking lot on the service road seemed to imply that Mr. Jackson possibly exited that parking lot and entered the service road. Mr. Simmons further testified that he was going approximately five miles per hour when the collision occurred. Other than medical records meant to show the extent of injuries, Mr. Simmons' case was supported solely by his own testimony.

In response, defendants presented the testimony of Mr. Jackson, who stated that he was driving approximately 30 to 35 miles per hour in the center lane of the service road when the collision occurred. Mr. Jackson indicated that he turned onto the service road from Ames Boulevard and he specifically denied entering the service road from the bar parking lot. He further testified that he did not see Mr. Simmons' vehicle prior to the impact.

According to the deposition testimony of defendants' accident reconstruction expert, which included many photographs taken at the scene of the accident, Mr. Simmons' vehicle was travelling at approximately twenty-six miles per hour when it was struck by Mr. Jackson's vehicle, and that it was highly unlikely that Mr. Simmons could have reached that rate of speed crossing the intersection had he come to a complete stop at the indicated stop sign. Trooper Thompson indicated that regardless of the statement by the anonymous witness, his investigation revealed that Mr. Simmons failed to yield the right of way to Mr. Jackson.

There is no dispute that the stop sign for Robinson Avenue required Mr. Simmons to stop at the intersection, and that any vehicles traveling on the service road had the right of way. Therefore, regardless of whether or not Mr. Simmons came to a complete stop at the stop sign, he would have failed to yield the right of way to Mr. Jackson, provided that Mr. Jackson was properly driving on the service road. Mr. Simmons' apparent theory of Mr. Jackson's fault is that Mr. Jackson was not properly driving on the service road, but rather suddenly entered the service road from some other location. Despite this theory, Mr. Simmons testified that he did not see Mr. Jackson's vehicle prior to impact. He therefore could offer no evidence of Mr. Jackson suddenly entering the service road from some unknown, unidentified location. To the contrary, Mr. Jackson testified that he entered the service road at Ames Boulevard and was traveling in the center lane of the service road for some distance and immediately prior to the impact. It is apparent that the trial court chose to credit Mr. Jackson's testimony on this point and reject Mr. Simmons' testimony.

Upon our review of the record, we find that the trial court was not manifestly erroneous or clearly wrong in its determination that Mr. Simmons failed to prove by a preponderance of the evidence that Mr. Jackson was in any way negligent in causing this accident. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED