text:
    STATE of Louisiana v. Glenn LAWRENCE a.k.a. Michael McCoy
    NO. 18-KA-372
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, GLENN LAWRENCE A.K.A. MICHAEL MCCOY, Glenn Lawrence, Bruce G. Whittaker, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

On appeal, defendant's appointed appellate counsel filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. Defendant, Glenn Lawrence, filed a pro se supplemental brief arguing four assignments of error. For the reasons that follow, we affirm defendant's conviction and sentence. We further grant appellate counsel's motion to withdraw as attorney of record.

Procedural History

On May 15, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Glenn Lawrence a/k/a Michael McCoy, with home invasion, in violation of La. R.S. 14:62.8. On May 18, 2015, defendant pled not guilty.

On May 26, 2016, defendant withdrew his plea of not guilty and pled guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for fifteen years to run concurrently with his sentences in case numbers 08-1966, 14-3654, 16-0184 and concurrently with the "parole time" in case numbers 95-5681, 95-5900, and 95-6175.

On May10, 2018, defendant filed a "Notice of Intent to Appeal and 30 Day Extension to File." On May 14, 2018, the trial court granted defendant an out-of-time appeal. This appeal followed.

Facts

Because defendant pled guilty, the underlying facts were not fully developed at a trial. A factual basis was not provided at the guilty plea proceeding, therefore, the facts have been gleaned from the bill of information which provided that on or about May 26, 2013, in Jefferson Parish, defendant violated La. R.S. 14:62.8 "in that he commit [sic ] unauthorized enter [sic ] of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another."

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-1111, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. Id.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. Defendant's counsel asserts that after a conscientious and thorough review of the trial court record, he could find no non-frivolous issues to raise on appeal. Appellate counsel indicates that defendant pled guilty and was sentenced pursuant to a counseled plea agreement and no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). He asserts that defendant entered an unqualified guilty plea waiving all non-jurisdictional defects. Appellate counsel indicates that defendant did not object to (1) the charged offense during the plea proceeding; (2) the trial court's acceptance of the guilty plea; or (3) the sentence agreed upon and imposed. Therefore, he asserts that defendant waived his right to now seek review on direct appeal. Appellant counsel also asserts that the sentence imposed was in conformity with the plea agreement, and thus, defendant is precluded from raising a claim of excessiveness on appeal. He further contends that the plea agreement was "somewhat advantageous" to defendant in that he did not receive the maximum sentence and the trial court did not order any of his sentences to run consecutively. Defendant's appellate counsel filed a motion requesting permission to withdraw as attorney of record.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The record reveals no constitutional infirmities or irregularities in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charge against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Defendant was informed of the minimum and maximum sentence range of the charged offense and the actual sentence that would be imposed on him.

Defendant also acknowledged that he had not been forced, threatened, or coerced into entering his guilty plea. Defendant was informed that his guilty plea could be used against him if he was convicted of a subsequent offense. After the colloquy with defendant, the trial court accepted defendant's plea as knowing, intelligent, free, and voluntarily made.

Defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement and falls within the prescribed statutory sentencing range. See La. R.S. 14:62.8. La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. State v. Augustine, 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123, 1128. Additionally, defendant's plea agreement was beneficial to him in that he received less than the maximum sentence and the sentence ran concurrently with his other sentences and his "parole time."

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has in fact reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is granted.

Pro Se Assignments of Error

In his first pro se assignment of error, defendant contends that his original request in his "Notice of Intent to Appeal & 30 Day Extension to File" was "ignored and overlooked" by the State and his appointed counsel. In that pleading, he contends that he stated that (1) there were specific errors made during the sentencing phase that he planned to challenge; (2) he needed an extension of time because he was transferred to numerous holding facilities and his property was lost or destroyed; and (3) his research abilities were severely prejudiced by his inability to afford private counsel and by the lack of meaningful assistance provided by other offenders. Defendant asserts that the fact that his appellate counsel completely ignored the primary subject matter of his original filing was "alarming" at best and at worst was an example of a failed Strickland test. Defendant contends that neither counsel took the time to read his original filing.

The record reflects that defendant filed his pleading on May 10, 2018, wherein he stated that (1) he was preparing to file an application for post-conviction relief ("APCR"); (2) there were errors made during his case; (3) his request to proceed was timely filed; (4) he wanted an extension of time because he could not afford counsel to represent him or to file proper pleadings for him; (5) he had been transferred to numerous facilities and had lost property consisting of legal papers; and (6) he was without a fully functioning law library at his current facility. On May 14, 2018, the trial court stated that the law provided that a defendant may request an out-of-time appeal by filing an APCR within two years after his conviction and sentence have become final pursuant to La. C.Cr.P. art. 930.8 A, that defendant was within the time limit for seeking an out-of-time appeal, and that the court would construe his application as such. The trial court granted defendant an out-of-time appeal and assigned the Louisiana Appellate Project to represent him in this appeal.

Defendant cannot seek post-conviction relief if he has not yet first filed an appeal. Pursuant to La. C.Cr.P. art. 924.1, an application for post-conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending. See State v. Singleton, 03-1307 (La. App. 5 Cir. 3/30/04), 871 So.2d 596, 599. The trial court granted defendant an out-of-time appeal and assigned the Louisiana Appellate Project to represent him. The Louisiana Appellate Project filed an Anders brief because it could find no non-frivolous issues to raise on appeal. Defendant was notified of the filing of this Anders brief and of his ability to file his own supplemental brief. Defendant filed a pro se supplemental brief raising four assignments of error. After his appeal has been decided, defendant may file an APCR pursuant to La. C.Cr.P. art. 930.8.

In his second pro se assignment of error, defendant contends that newly discovered evidence in the record and in affidavits, only recently available to him, warranted an extension of time to file his APCR. Defendant argues that upon receiving a copy of the record, he was able to discover many issues that should have been addressed either immediately after his appointed trial counsel received the file or immediately after counsel's initial interview. He contends that these issues include but are not limited to the State withholding exculpatory evidence, conflicting witness reports, officers' integrity being called into question, and witnesses recanting testimony. Defendant asserts that he also has newly discovered evidence in the form of affidavits that is exculpatory. He argues that he should be given the opportunity to present this evidence to the trial court and to attack his conviction through an APCR.

Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. A valid guilty plea waives the defendant's right to question the merits of the state's case. State v. Floyd, 08-746 (La. App. 5 Cir. 1/13/09), 7 So.3d 682, 688, writ denied, 09-0764 (La. 1/29/10), 25 So.3d 824 (citing State v. Bourgeois, 406 So.2d 550 (La. 1981) ). As discussed above, a review of the record reveals no constitutional infirmity in defendant's guilty plea.

It appears defendant is arguing, in part, that his trial counsel was ineffective. A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. State v. Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 58, writ denied, 14-431 (La. 9/26/14), 149 So.3d 261. Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the defendant proves: (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 9/23/16), 199 So.3d 1140, 1141.

For claims like defendant's that counsel's ineffective assistance rendered a guilty plea invalid, the Strickland analysis under the first deficiency prong remains unchanged, whereas under the second prejudice prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154, 1157 (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) ).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-67. But when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. at 1067. If, on the other hand, the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

In this case, the record is insufficient to fully consider defendant's claim that his trial counsel was ineffective. Based on the limited record, we find defendant's allegations of ineffective assistance of counsel cannot be reviewed here, and should be raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if warranted under the post-conviction relief statutory procedure, and defendant can present evidence to support his allegations. See State v. Stiller, supra ; State v. Kron, 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117.

It also appears that defendant is attempting to argue, for the first time on appeal, that he should be allowed to withdraw his guilty plea based on newly discovered evidence.

In State v. Alfonso, 496 So.2d 1218 (La. App. 5 Cir. 1986), writ denied, 501 So.2d 206 (1987), the defendant filed a brief stating that after pleading guilty to two counts of second degree battery, he married the victim who recanted her testimony. The defendant also stated that he had several witnesses who would testify as to his whereabouts on the date of one of the incidents. This Court found that the defendant was attempting to argue a motion to withdraw a guilty plea based on newly discovered evidence for the first time on appeal. It stated that a new basis for an objection could not be raised for the first time on appeal. This Court declined to address this new issue, noting that it may be more properly addressed by a motion for new trial filed in the trial court following the appeal or by an application for post-conviction relief. Id. at 1220.

In State v. Jenkins, 419 So.2d 463 (La. 1982), the defendant pled guilty to two counts of distribution of marijuana. On appeal, the defendant argued that the trial court erred in denying his motion for a new trial based on the discovery of new evidence. The Supreme Court found that since the defendant pled guilty, a motion for new trial was inappropriate. The Supreme Court held, however, that the defendant's allegations should not be disregarded and would be treated as if presented on a motion to withdraw a guilty plea. The Supreme Court found that La. C.Cr.P. art. 559 allowed the court to permit a withdrawal of a guilty plea at any time prior to sentence and that the motion was filed in advance of sentence. It ultimately concluded that the trial court did not abuse its discretion in denying the motion. Id. at 466.

Based on the foregoing, we find the record is insufficient for this Court to address this claim. Therefore, defendant should file an application for post-conviction relief in the trial court following this appeal to raise this claim, if warranted.

In his third pro se assignment of error, defendant contends that appointed appellate counsel failed to articulate his primary issue for appeal and therefore, should not be allowed to withdraw. Defendant argues that appointed counsel filed a motion to withdraw in accordance with Anders "following what could have only been the most superficial of perusals of the appellate review record." He states that appointed counsel could not have thoroughly read or reviewed his "Notice of Intent to Appeal and 30 Day Extension to File" as counsel failed to articulate his "primary issues" which are "wholly relevant, pertinent and non-frivolous."

Appellate counsel filed an Anders brief because he could not find any non-frivolous issues to raise on appeal. Defendant was given the opportunity to and did file his own supplemental brief, raising and arguing issues he believes are relevant. For the reasons previously discussed, appointed appellate counsel's motion to withdraw as attorney of record is granted.

In his fourth pro se assignment of error, contrary to appointed counsel's representations in the Anders brief, defendant contends that he did not plead guilty due to any actual guilt. Defendant asserts that in appellate counsel's brief, counsel claims that defendant indicated during the colloquy that he was pleading guilty because he was in fact guilty. He contends that the record shows that the trial court never asked him if he was pleading guilty to the charge because he was guilty. Defendant maintains that this specific claim made by counsel is inaccurate and should be stricken from appointed counsel's brief.

A review of the record shows that while the trial court did not specifically ask defendant if he was guilty, defendant pled guilty to the charged offense. Defendant did not plead guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and did not state the he was pleading guilty because he believed it was in his "best interest" to plead guilty, nor did he maintain his innocence in any manner or to any extent. We find this assignment to be without merit.

Errors Patent Review

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals the following error patent.

The trial court erred by not imposing the mandatory fine set forth in La. R.S. 14:62.8 B(1) of "not more than five thousand dollars." Although this Court has the authority to correct an illegal sentence at any time pursuant to La. C.Cr.P. art. 882, the authority to correct an illegally lenient sentence is permissive rather than mandatory. While this Court has held that statutes providing for a fine of "not more than" a specified amount do require a mandatory fine, this Court has also recognized that the matter is not free from doubt. State v. Kerlec, 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La. 12/7/07), 969 So.2d 626. Defendant is represented by the Louisiana Appellate Project. Therefore, we decline to exercise our authority to remand for correction of the illegally lenient sentence due to defendant's indigent status. See State v. Saulny, 16-734 (La. App. 5 Cir. 5/17/17), 220 So.3d 871, 881, writ denied, 17-1032 (La. 4/16/18), 240 So.3d 923.

Conclusion

For the reasons stated herein, we affirm defendant's conviction and sentence. Appointed appellant counsel's motion to withdraw as attorney of record is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      On May 26, 2016, defendant also entered a guilty plea and was sentenced in district court case number 08-1966. Defendant appealed his guilty plea in 08-1966, which is appeal number 18-KA-371.

      In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L Ed.2d 674 (1984).

      Defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq ., in order to receive such a hearing.

      The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1122-1123.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Nicholas THOMPSON v. Richards CLEARVIEW, LLC d/b/a Clearview Mall
    NO. 18-CA-610
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, NICHOLAS THOMPSON, Harry E. Forst
    COUNSEL FOR DEFENDANT/APPELLEE, RICHARDS CLEARVIEW, LLC D/B/A CLEARVIEW MALL, R. Todd Musgrave, Sean P. Sullivan
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Plaintiff/Appellant, Nicholas Thompson, appeals the summary judgment in favor of Defendant/Appellee, Richards Clearview, LLC d/b/a Clearview Mall (hereinafter referred to as "Clearview Mall"), that dismissed his slip-and-fall lawsuit filed in the 24th Judicial District Court, Division "E". For the following reasons, we reverse the trial court's judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 15, 2016, Mr. Thompson visited Clearview Mall in Metairie, Louisiana, with his girlfriend. At approximately 7:00 p.m., as he was exiting the main entrance of the mall facing Veterans Boulevard and heading toward his vehicle, he stepped off of the red-painted curb leading to the parking lot. While stepping down from the curb, Mr. Thompson's ankles twisted, he lost his footing, and he fell into the parking lot, allegedly causing bodily injury.

Mr. Thompson filed a "Petition for Damages" against Clearview Mall, alleging that the mall exit was defective and unreasonably dangerous. He specifically alleged that Clearview Mall was negligent in violating the building code by having a curb 9 inches above the parking lot grade and only having a 36-inch walkway between the column and the edge of the sidewalk. Mr. Thompson further alleged that he sustained a right bimalleolar ankle fracture as a result of his fall, necessitating awards of general and special damages from Clearview Mall.

In opposition, Clearview Mall filed a "Motion for Summary Judgment." In the motion, it asserted there was no genuine issue of material fact that the bright red-painted curb at issue was open and obvious to all who encountered it and was not unreasonably dangerous. Clearview Mall argued that Mr. Thompson simply misjudged his step down from the curb and fell because his right and left ankles both twisted. Clearview Mall contended Mr. Thompson could not satisfy his burden of proof at trial that the curb presented an unreasonable risk of harm, and it was entitled to summary judgment as a matter of law.

The trial court held a hearing on Clearview Mall's motion on July 24, 2018. At the conclusion of the arguments, the trial judge orally found that the curb was well-marked and was open and obvious. The trial judge also found that it did not appear from the video footage of the incident that Mr. Thompson was paying attention to where he was walking. In its written judgment, the trial court granted summary judgment in favor of Clearview Mall and dismissed Mr. Thompson's claims with prejudice. The instant appeal followed.

LAW AND ANALYSIS

On appeal, Mr. Thompson solely alleges the trial court erred in finding that Clearview Mall met its burden of proving the curb in question was not unreasonably dangerous and was open and obvious to all. He argues that the affidavit and evaluation of his expert, Neil B. Hall, was sufficient evidence to raise a genuine issue of material fact and defeat summary judgment. Mr. Thompson contends that Mr. Hall's observations and measurements demonstrated that the curb was 9 inches high and exceeded the Jefferson Parish Building Code. He further contends that Mr. Hall opined that Mr. Thompson would not have anticipated the additional riser height and his fall would be categorized as a misstep or misjudged step due to the excessive height of the curb riser.

Mr. Thompson also argues that the risk-utility balancing test shows that the 9-inch curb height was unreasonably dangerous and was not open and obvious. He asserts that Clearview Mall failed to provide evidence that he was aware of the defective condition of the curb or that he was familiar with that particular curb; thus, Clearview Mall failed to prove that the defective curb was open and obvious. Mr. Thompson further asserts that the defective condition on Clearview Mall's premises caused him to misstep or misjudge his step, resulting in his injuries.

Clearview Mall avers that the trial court's determination that the subject curb was open and obvious was the correct finding based upon the facts and evidence presented, and the finding should not be disturbed on appeal. It maintains that the only evidence produced in support of Mr. Thompson's contentions was the expert report of Mr. Hall, and the report did not address whether the curb itself was unreasonably dangerous or whether the curb was open and obvious. Without any affirmative evidence to prove the subject curb was unreasonably dangerous, Clearview Mall argues that Mr. Thompson failed to refute the fact that the condition of the curb was open and obvious in nature.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Stogner v. Ochsner Clinic Foundation , 18-96 (La. App. 5 Cir. 9/19/18), 254 So.3d 1254, 1257, citing Batiste v. United Fire & Casualty Co. , 17-485 (La. App. 5 Cir. 3/14/18), 241 So.3d 491, 496. Summary judgment shall be granted "if the motion, memorandum, and supporting documents shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." Id. , quoting La. C.C.P. art. 966(A)(3).

A material fact is one that potentially insures or prevents recovery, affects a litigant's ultimate success, or determines the outcome of the lawsuit. Populis v. State Department of Transportation and Development , 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. An issue is genuine if it is such that reasonable persons could disagree. If only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

The party moving for summary judgment bears the burden of proof. Stogner , supra , citing La. C.C.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claims. Id. Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Id. , citing Babin , supra .

When considering owner or custodian liability, La. C.C. art. 2317.1 provides,

[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

When evaluating the duty owed relative to a sidewalk condition, the facts and surrounding circumstances of each case control, and the test applied requires consideration of whether the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Bufkin v. Felipe's Louisiana, LLC , 14-288 (La. 10/15/14), 171 So.3d 851, 856. Courts have adopted a risk-utility balancing test to determine whether such a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and the feasibility of repair. Id. The risk-utility balancing test has four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous in nature. Id.

In the case at bar, Clearview Mall contended in its motion for summary judgment that Mr. Thompson will not be able to satisfy his evidentiary burden of proving the second prong of the risk-utility balancing test: whether the allegedly dangerous or defective 9-inch curb was obvious and apparent. Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. Bufkin , supra . In order for an alleged hazard to be considered obvious and apparent, the hazard should be one that is open and obvious to everyone who may potentially encounter it. Id. To support its position, Clearview Mall submitted an incident report, video footage from the incident that showed Mr. Thompson approaching the curb and falling, Mr. Thompson's deposition, and pictures of the curb in question painted in red.

To meet his burden of proving the depth of the curb was an unreasonably dangerous condition that was not open and obvious to all, Mr. Thompson submitted an expert report from Neil B. Hall, an expert in the fields of architecture, civil and structural engineering and building codes. Upon inspection, Mr. Hall found the curb measured 9 inches in riser height between the sidewalk adjacent to the building wall and the parking lot slab. He found that the most liberal building code required that the riser height not exceed 7 ¾ inches. Mr. Hall opined that if Mr. Thompson intended to step down at that location, Mr. Thompson would not have anticipated the additional riser height, and Mr. Thompson's fall could be categorized as a misstep due to the excessive height of the curb riser. He concluded that the layout and design of the walkway in front of Clearview Mall's entry/exit doors were unreasonably unsafe conditions that violated the recommendations concerning minimum walkway clearance widths of numerous design standards, and they added to the risk of a pedestrian falling off the edge of the sidewalk, which was in direct violation of building code requirements.

After review of the evidence presented, we find that Mr. Thompson produced factual support sufficient to contest whether the curb at issue was unreasonably dangerous and was not open and obvious. Thus, under the particular facts of this matter, we conclude there are remaining genuine issues of material fact, and summary judgment is inappropriate. Therefore, we find Clearview Mall is not entitled to summary judgment as a matter of law.

DECREE

For the foregoing reasons, we reverse the trial court's summary judgment in favor of Clearview Mall and remand the matter for further proceedings. Clearview Mall is assessed the costs of this appeal.

REVERSED AND REMANDED


author: GARRETT, J.

text:
    Euckle HUNTER, Jr., Plaintiff-Appellant v. TOWN OF RICHWOOD, Defendant-Appellee
    No. 52,696-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019 Rehearing Denied June 20, 2019
    LAW OFFICES OF STREET & STREET By: C. Daniel Street, Monroe, Counsel for Appellant
    HUDSON, POTTS & BERNSTEIN, L.L.P. By: Johnny R. Huckabay II, Monroe, Counsel for Appellee
    Before GARRETT, STEPHENS, and BLEICH (Ad Hoc), JJ.
   GARRETT, J.

Euckle Hunter, Jr., the claimant in this workers' compensation case, appeals from a judgment which denied the fraud claim he made against his employer, the Town of Richwood ("the Town"), under La. R.S. 23:1208. Hunter contended that, after he filed suit against the third party who injured him, the Town filed an intervention in that suit and improperly sought to recover penalties and attorney fees assessed against it in Hunter's workers' compensation case by "mislabeling" these payments as "temporary total disability." We affirm the judgment below.

FACTS

Hunter was employed by the Town as chief of police. On August 4, 2014, he was injured in an auto accident while driving his police car. As a result of the accident, Hunter filed both a workers' compensation claim against the Town and a tort suit against the other driver.

Hunter prevailed in the workers' compensation matter. On December 14, 2016, a judgment awarding him temporary total disability indemnity benefits was signed. This judgment also granted him $ 300 for reimbursement for emergency room treatment, $ 123.65 for prescription reimbursement, $ 2,000 in penalties, $ 2,750 in attorney fees, $ 1,000 for cost of a deposition, and $ 164.75 for court costs. In payment of this judgment, the Louisiana Municipal Risk Management Agency issued to Hunter and his attorney a check for $ 6,377.77, dated January 30, 2017. The check stub recited the following: "Payment Type: Temporary Total Disability. Comments: Pursuant to OWC [Office of Workers' Compensation] Judgment."

Payment of this check was entered into the extensive payment history of Hunter's claims kept by the adjuster. That one-line entry - which is the centerpiece of the instant appeal - had the following information set forth in eight columns: serial number ("582175"), payment type ("Temporary Total Disability"), paid to ("Euckle Hunter and his attorney, C. Daniel Street"), service date ("8/4/2014-8/4/2014"), billed ("$ 6,377.77"), paid ("$ 6,377.77"), "Aprvd" ("Yes"), and status ("1/30/2017, Ck #365970").

Hunter's tort suit against the other driver was filed on August 7, 2015. On September 11, 2015, the Town filed an intervention in the tort suit, seeking to recover sums it paid and continued to pay on Hunter's workers' compensation claim, pursuant to La. R.S. 23:1102. During the course of discovery, counsel for Hunter and the Town exchanged letters and emails. In January 2017, Hunter's counsel requested that the Town provide him with "a print-out of medical [and] indemnity paid" to provide to the tort defendants to see if they wanted to settle. On March 1, 2017, Hunter's counsel wrote again, enclosing a request for production of a "[c]omputer printout or other documentation of all workers' compensation indemnity and medical payments" made in conjunction with the accident and "[i]f different from the amount shown in the documents requested in Request for Production No. 1 above, provide any other documents which reveal the amount of your intervention herein."

On March 2, 2017, the Town's attorney emailed Hunter's personnel file from the Town and some of his workers' compensation records. The email noted that more workers' compensation records would be forthcoming from Baton Rouge. In April 2017, the Town's counsel sent Hunter's counsel a CD with the entire workers' compensation file, which was voluminous.

On May 23, 2017, Hunter's counsel wrote the Town's counsel, informing him of a $ 450,000 offer from the tort defendant to settle all claims and offering the Town $ 50,000. On June 1, 2017, the Town's counsel mailed and faxed Hunter's counsel a letter rejecting the $ 50,000 settlement offer. On June 2, 2017, Hunter's counsel sent the Town's counsel a letter containing, in pertinent part, the following:

As usual, your client is off to a great start on trying to resolve this matter. On the very first page of your record of payments, which you apparently included in the gross amount paid, is an entry for a payment of temporary, total disability in the amount of $ 6,377.77. That was not for temporary, total disability but was for penalties and attorney fees. The mislabeling of that payment violates La. R.S. 23:1201F(5). Furthermore, that mislabeling is arguable [sic] workers' comp fraud because it is designed to facilitate recovery of that amount as compensation when it is not recoverable compensation. In view of this deception, I will now have to closely examine all entries to try to discover anymore [sic] such misconduct. Of course, such mislabeling makes that a challenge.

On June 16, 2017, the Town's counsel responded, in relevant part:

My previous letter of June 1, 2017, respectfully declining your offer to settle this matter for $ 50,000, sets forth that my client [is] in this for a total of $ 157,521.62. Nowhere in my letter does it state that my client should or could be reimbursed for that amount and there was no counter offer made. There was merely a note as to how much money my client has invested in this matter and a respectful declination of your offer.
La. Stat. Ann. § 23:1201(5) sets forth: No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance . No formula was utilized to claim an amount for reimbursement. Thus, there is no fraud and no mislabeling of payments. [Emphasis theirs.]
As you probably know all of the above, and in order to clarify, you sent another letter dated June 14, 2017, inquiring as to how much my client claims is reimbursable in this matter. In that respect, my client has gone through the numbers and tentatively shows as follows:
The $ 6,377.77 judgment payment is payable under indemnity because there is NO category for payments other than: indemnity, medical, other, rehab and legal.
The payment covered:
$ 300.00 for Glenwood Regional.
$ 123.65 for prescription reimbursement.
$ 1k for Dr. Brown's deposition.
$ 2k penalties.
$ 2,750.00 attorney fees.
$ 164.75 cost.
$ 39.37 interest.
There is no mislabeling of this payment and there is clearly no intention of defrauding anyone.
With that stated, my client has paid $ 109,244.35 in medical benefits, $ 6,558.07 in rehab, $ 42,806.20 in indemnity (minus the $ 2k penalty, $ 2,750.00 attorney fee and $ 39.37 interest) = $ 38,016.83. The cost of $ 164.75 and Dr. Brown's depo fee of $ 1k [sic]. That amount comes to $ 153,819.25. Since Dr. Brown's deposition and medical records were used in the tort case to show the extent of Mr. Hunter's medical issues, that should be recoverable.

On June 23, 2017, Hunter's counsel sent another letter to the Town's counsel, which stated, in relevant part:

This is my last effort to try to amicably resolve this matter with you and your client. We will pay your client $ 100,000.00 for its intervention and compute the credit to which your client will be entitled. If we are unable to agree on the credit, we can submit that issue to the judge.
If this offer is not accepted by your client by next Friday, and consent to settle the claim withheld, we will pay the amount your clients claim into the registry of the court and litigate your entitlement and litigate the issue of whether or not your client has forfeited its claim by violation of La. R.S. 23:1208.

On July 18, 2017, Hunter filed a disputed claim for compensation with the OWC in which he asserted that the Town violated La. R.S. 23:1208. He stated that, during discovery and in the course of settlement discussions in his tort suit, his attorney repeatedly requested information on the indemnity and medical payments made under workers' compensation and the amount being sought in the intervention in the tort case. Counsel for the Town sent a document entitled "Claim Detail," portions of which were redacted. An entry found in this document stated that "temporary total disability" in the amount of $ 6,377.77 was paid to Hunter and his attorney. According to Hunter, this amount included penalties of $ 2,000 and attorney fees of $ 2,750 which the Town "disguised" as "temporary, total disability" and "presented same as subject to reimbursement." Hunter argued that this "falsehood" was a misrepresentation in violation of La. R.S. 23:1208, "as Intervenor obviously presented this false information in an effort to recover same." He alleged that the Town was "guilty of workers' compensation fraud" and this should result in forfeiture of any claim it had, including as intervenor in the tort suit.

On August 28, 2017, the Town and the Office of Risk Management, Inc., filed an answer in which they repeatedly asserted the following two statements:

Nowhere can it be showed that defendant(s) alleged they were entitled to more than the lawful amount. Defendant(s) never submitted an amount to which they were entitled because the amount was not known until recently, when all invoices were submitted to defendants and paid by defendants.
Nowhere can it be shown that defendant(s) alleged that it was entitled to recover amounts it paid as penalties and attorney fees.

Trial before the workers' compensation judge ("WCJ") was held on May 18, 2018. The parties jointly introduced numerous documents, including the judgments in the workers' compensation case, pleadings in the tort case, and correspondence between the attorneys. The Town also introduced, without objection, additional letters between counsel and answers to interrogatories.

Before trial commenced, the parties and the WCJ discussed several issues. During the course of these discussions, Hunter's counsel stated that the Town "finally made an offer yesterday and I responded to it, but we're a few thousand dollars apart." Later, the Town's counsel stated that the comment about it "finally" making an offer was "perfectly on point." He asserted that, because the Town was still paying benefits to Hunter until several months before the trial, they had been unable to make an offer. He further explained that "without knowing what is out there and what's still coming in, we can't make an offer. All we can do is show them what we've paid[.]"

The sole witness at trial was Della Hildebrand, a workers' compensation adjuster who had worked for Risk Management, Inc., for 23 years. She handled both the workers' compensation case and the intervention in the tort suit. Hildebrand testified that she redacted the confidential information pertaining to reserves and legal fees, and that "[e]verything else is discoverable." She explained that the entire payment of the judgment, including penalties and attorney fees, was listed as "temporary total disability" because there were only five categories (indemnity/comp, medical, other, rehab, and legal) provided for issuing checks under their computer software and that judgments are paid under the indemnity category. Hildebrand stated that she sent the "Payment Itemization" document to the Town's attorney several times during the course of the claim process when he requested a current printout of the payment history. She testified that she did not know that the document was going to be presented to Hunter's counsel. She first learned that it had been provided when Hunter filed his claim asserting fraud.

Hildebrand stated that she never thought to tell the Town's attorney that the "temporary total disability" label included the penalties and attorney fees in the $ 6,377.77 check. She believed the check spoke for itself and noted that the comment associated with the check specified that it was issued pursuant to an OWC judgment. She denied that she was trying to defraud or mislead Hunter, hide anything from him, or gain an advantage. Hildebrand also testified that, when she would have been asked what she thought was owed for recovery, the amounts for the penalties and attorney fees would have come out of that total. She explained that, when required to provide the amount for a reimbursement claim, she manually reviewed the material. She stated that, at some point, she had sent an email to the Town's attorney based on her manual review of the various items for the reimbursement claim, as she did on all third-party claims. She acknowledged that, in addition to penalties and attorney fees, she would manually eliminate other items, such as interest and fees for vocational rehabilitation, case management and utilization review. Finally, she testified that she never said they wanted to be reimbursed for the penalties and attorney fees.

On July 6, 2018, the WCJ issued a written opinion, finding in the Town's favor. The WCJ cited Hildebrand's testimony that her company's computer software required her to classify a payment in one of five categories in order to issue a check. To issue the check for the OWC judgment in question, Hildebrand entered the payment under the indemnity category, as she had done for 20 years. She had no way to classify the check as payment for items such as penalties and attorney fees included in the OWC judgment. The WCJ stated that fraud under La. R.S. 23:1208 required: (1) an intentionally false statement (2) made for the purpose of obtaining or defeating any workers' compensation benefit or payment. The WCJ concluded that, while the Town "may have provided false or misleading information on [its] payment itemization, by classifying the entire amount as wage benefits, it was not proven that this information (i.e. false statement) was given for the purpose of obtaining or defeating any workers' compensation benefit or payment." Consequently, Hunter's fraud claim was dismissed at his cost. Judgment was signed that same day.

Hunter appealed.

LAW

In relevant part, La. R.S. 23:1208 provides:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

Under La. R.S. 23:1208, a civil penalty may be imposed if the following requirements are proved: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co. , 94-2708 (La. 9/5/95), 660 So.2d 7 ; Louisiana Workers' Comp. Corp. v. Gray , 35,198 (La. App. 2 Cir. 10/31/01), 799 So.2d 820. All three requirements must be present before a penalty will be imposed. Wilkes v. Ivan Smith Furniture Co. , 39,096 (La. App. 2 Cir. 12/22/04), 890 So.2d 780 ; Louisiana Workers' Comp. Corp. v. Gray , supra .

The statute prohibits willful misrepresentations made by anyone "for the purpose of obtaining or defeating any benefit or payment." Thus, an employer may also be found to have violated this statute where misrepresentations are made for the purpose of defeating an employee's claim for workers' compensation benefits. Hull v. Fluker Farms , 2000-0757 (La. App. 1 Cir. 5/11/01), 787 So.2d 535, writ denied , 01-2291 (La. 11/16/01), 802 So.2d 612. See also CENLA Steel Erectors v. McDonald , 98-1355 (La. App. 3 Cir. 3/3/99), 737 So.2d 82, writ denied , 99-0940 (La. 5/14/99), 741 So.2d 669.

The issue of whether an employer, or his agent, willfully made a false statement or representation for the purpose of defeating benefits is one of fact, which is not to be reversed on appeal absent manifest error. Millender v. BASF Corp. , 2013-2253 (La. App. 1 Cir. 12/23/14), 168 So.3d 649. A WCJ's finding as to whether a violation of La. R.S. 23:1208 occurred is a finding of fact subject to the manifest error standard of review. Quinn v. Vidalia Apparel , 2010-712 (La. App. 3 Cir. 12/8/10), 54 So.3d 123.

In applying the manifest error or clearly wrong standard, the court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Dep't of Trans. & Dev. , 617 So.2d 880 (La. 1993). Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Johnson v. Manitowoc Co. , 52,264 (La. App. 2 Cir. 9/26/18), 256 So.3d 463, writ denied , 18-1759 (La. 1/8/19), 260 So.3d 592.

An inadvertent and inconsequential false statement will not result in the forfeiture of benefits. Green v. Allied Bldg. Stores, Inc. , 50,117 (La. App. 2 Cir. 1/22/16), 185 So.3d 164, writ denied , 16-0508 (La. 5/27/16), 192 So.3d 737.

DISCUSSION

The essence of Hunter's argument on appeal is that Hildebrand failed to redact the $ 6,377.77 payment, or make "some kind of notation or adjustment" on the P-6 printout to alert him to the contents of that check. He claims that her actions in redacting the reserves shown on P-5 and the legal costs itemized on P-6 are proof that her failure to somehow alter the entry for the check was "willful." However, we note that all of the items blacked out by Hildebrand in these documents were confidential and not discoverable; thus, they were properly redacted. Furthermore, we find the argument that the Town was trying to "disguise" the penalties and attorney fees in the $ 6,377.77 check is somewhat disingenuous given the fact that the check was made out to both Hunter and his attorney, who has represented him throughout all of these proceedings, signed the underlying judgment approving it as to form, and presumably was aware of exactly what the check included.

Hunter's counsel requested first a printout of the workers' compensation indemnity and medical payments made to his client and later the amount of the intervention, if different. As to the printout supplied by the Town, the WCJ accepted Hildebrand's testimony that she operated within the bounds of her software and company policy in making her computer entry pertaining to the $ 6,377.77 check. Hildebrand further testified that she was aware that attorney fees and penalties were not recoverable in the intervention and that she would - and, in fact, did - manually calculate what would be recoverable and communicate that information to the Town's attorney. As Hildebrand indicated in her testimony, making that determination could not change the content of the actual printout - an internal, computer-generated document - which was requested by and supplied to Hunter.

As shown in the discussion held on the record between the attorneys and the WCJ immediately before the trial, the Town never made "an offer" as to the amount owed in the intervention until the day before the trial; it was not in a position to do so because it was still paying benefits to Hunter until shortly before the trial.

Based on the foregoing, we find no manifest error in the WCJ's dismissal of Hunter's fraud claim under La. R.S. 23:1208. The evidence presented at trial failed to establish all of the necessary elements required under that statute. Accordingly, the judgment of the WCJ is affirmed. As a result, we need not address the issue of what remedy is available in cases where fraud by an employer has been proven in the context of an intervention claim.

CONCLUSION

The judgment of the WCJ in favor of the Town of Richwood is affirmed. Costs of this appeal are assessed to the appellant, Euckle Hunter, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

Before Jeanette Giddens Garrett - Writing, Jeff Cox, James Mark Stephens, Jay Bowen McCallum, and E. Joseph Bleich.

Rehearing denied.

      On February 12, 2017, an amended judgment was signed which corrected a typographical error concerning the amount of the temporary total disability indemnity benefits. It also lowered the court costs to $ 134.75. In all other respects, the judgments are the same.
      Both judgments provided for legal interest from date of judicial demand until paid on the medical treatment and prescription items, as well as legal interest on the penalties and attorney fees from the date of signing of the judgment.

      This email and most of these workers' compensation documents were admitted at trial as P-5. The last six pages of the workers' compensation records, which consisted of the payment history of Hunter's claim, were admitted as P-6. The first page of P-6 is entitled "Payment Itemization"; the entry pertaining to the $ 6,377.77 check is the seventh entry on this page.

      In its disputed claim for compensation, Hunter listed "Office of Risk Management, Inc." as the Town's insurer/administrator. In the answer, the defendants stated that the name of the entity is actually the Louisiana Municipal Risk Management Association ("LMRMA"). They then asserted an exception of no right of action, seeking LMRMA's dismissal on the basis that it was not an insurer and, as such, was not subject to any sort of direct action. The record does not indicate what action was taken on the exception.

      Although the first 14 exhibits were ultimately introduced jointly, they are marked on their face as plaintiff's exhibits. In this opinion, we refer to them according to the markings on the actual documents.

      They also discussed the Moody fee, which was to be determined at a later date by the district court in the tort case. The Moody fee, which derives its name from Moody v. Arabie , 498 So.2d 1081 (La. 1986), and is codified in La. R.S. 23:1103(C)(1), represents the proportionate share of an employee's attorney fees that is paid by the employer when the employer intervenes in the employee's third party tort suit. Kenly v. Fuller , 46,398 (La. App. 2 Cir. 7/13/11), 69 So.3d 1285, writ denied , 11-1784 (La. 11/4/11), 75 So.3d 924.

      Review of the exhibits shows that the only items redacted in P-5 pertained to reserves and the only items redacted in P-6 were described under the "Payment Type" column as "Legal Cost."


author: COX, J.

text:
    Darrell CHARLES and Alton Adams, Plaintiffs-Appellants v. Robert PRICE and USAA Casualty Insurance Company Defendants-Appellees
    No. 52,688-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    THE LAW FIRM OF EDDIE M. CLARK & ASSOCIATES, LLC, By: Eddie M. Clark Counsel for Appellants
    LUNN, IRION, SALLEY, CARLISLE & GARDNER, By: Alexander J. Mijalis Counsel for Appellees
    Before MOORE, COX, and BLEICH (Ad Hoc), JJ.
   COX, J.

This appeal is from the Third Judicial District Court, Lincoln Parish, Louisiana. The plaintiffs, Darrell Charles and Alton Adams (hereinafter referred to as "Charles" and "Adams," respectively), brought suit against Robert Price (hereinafter referred to as "Price") and his insurance carrier, USAA Casualty Insurance Company, after a car accident in an intersection controlled by traffic signals. The trial court found in favor of Price. The plaintiffs now appeal. For the following reasons, we affirm the trial court's judgment.

FACTS

This suit arises from an automobile collision in Ruston, Louisiana, on October 15, 2016, at 9:22 p.m. The plaintiffs were passengers in Freddie Maxwell's Honda Accord. Price was driving a Mitsubishi Lancer owned by his father, Jeffrey Price, and insured by USAA Casualty Insurance Company. The two vehicles collided at the intersection of West California Avenue and South Trenton Street, which is controlled by a red light. Price was traveling southbound on S. Trenton St. Maxwell was traveling westbound on W. California Ave. The issue at trial was which driver ran the red light.

The plaintiffs filed a petition for damages on April 18, 2017, claiming Price ran the red light and caused the accident and specifically pleading the doctrine of res ipsa loquitor. Charles claimed he sustained serious injuries including injuries to his back, neck, chest, abdomen, ribs, both hands, head, and emotions. He claims his head injuries have been accompanied by headaches and dizziness. Charles also claimed damages of past and future loss of enjoyment of life, inconvenience, past and future pain and suffering, past and future mental anguish and emotional distress, past and future medical expenses, past and future loss of earnings, past and future loss of earning capacity, lost wages, past and future disability, past and future physical impairment, negligent infliction of emotional distress, medical related expenses and bills, and all non-economic damages.

Adams claims he sustained injuries to his lower back, neck, right shoulder, right hand, ribs, head, and emotions. He claims his head injuries have been accompanied by headaches. Adams also claims damages of past and future loss of enjoyment of life, inconvenience, past and future pain and suffering, past and future mental anguish and emotional distress, past and future medical expenses, past and future loss of earnings, past and future loss of earning capacity, lost wages, past and future disability, past and future physical impairment, negligent infliction of emotional distress, medical related expenses and bills, and all non-economic damages.

The bench trial began on September 25, 2018. Price testified as to the following:

• He did not stop at a red light at the intersection of S. Trenton and W. California.
• He did not see the Maxwell vehicle until the crash occurred.
• After the initial impact, his vehicle rotated about 200 degrees, striking a pole, and the Maxwell vehicle kept going and crashed into a building.
• He never heard any horns blowing prior to the collision.
• When he first observed his traffic light, it was green, and it remained green.
• Immediately after the collision, there was an altercation between Maxwell and Price. A stranger, Tori Ward, witnessed the accident and protected Price from Maxwell while he was on the ground. Ms. Ward's boyfriend, Jacob Davis, also witnessed the accident and ended up getting involved in an altercation with Maxwell to protect Ms. Ward. A third witness, Morgan Lolley, was also present after the collision.
• Officers performed a field sobriety test on him (Price), which he passed.
• He saw Charles removed from the Maxwell vehicle on a stretcher.

Ms. Lolley, an independent eyewitness, was the next to testify. She testified that she gave her statement to police on the same day as the accident. She stated that she did see the accident, but the police report stated, "Lolley stated that she did not see the wreck happen, but she did see Maxwell attack Price." Ms. Lolley testified that she was driving behind Price when the accident occurred. She stated they were both stopped at a red light. She testified that when the light turned green, both vehicles started moving, and she was waiting on Price to go so she could turn right.

Ms. Ward, the second independent eyewitness, testified next. She stated that she had never given a statement to police regarding the accident. She testified that she was in the backseat while Ms. Lolley was driving. Ms. Ward testified that she was looking at her phone, and when the car started moving, she looked up and saw the green light. She stated that when she looked up, she saw a "car flying across out of the corner of [her] eye." She testified that she did not see the actual collision, just the aftermath, when the cars were spinning. She stated that she and Mr. Davis offered assistance to Price after the accident. She testified that after Price got out of his vehicle, the driver from the other vehicle walked over and punched Price in the face, knocking him to the ground.

Mr. Davis, the third independent eyewitness, also testified at trial. He testified that he was in the front seat of the vehicle that was behind Price. He stated the light was red, so they were sitting at the intersection. He stated that the "light turned green and started to go and a car came across the intersection on California and hit Price's vehicle on the front side." He testified that he offered to give a statement to police at the scene, but the police officer told him they would call him if they needed a statement. Mr. Davis stated that he intended to check on both vehicles after the accident, but as he was making his way to Maxwell's vehicle, two people came running across the street toward him and Price. He testified that one of the men punched Price, knocking him to the ground. He stated that after the man hit Price, the man turned and punched him as well. Mr. Davis stated that he had only met Price once before the accident. He testified that they had a mutual friend who was also Price's former roommate.

Charles was the next to testify. Charles was riding in the front passenger seat of Maxwell's car. He stated that he had his head down texting and when he looked up, their vehicle was hit. Charles testified that he did not know whether or not Maxwell had to stop at the signal light. He stated that his injuries included glass in his hands, broken ribs, and injuries to his head, neck, and back.

Adams testified that he was seated in the right rear passenger seat of Maxwell's vehicle. He testified that when he noticed the other vehicle, their light had just turned green. He stated that Maxwell's vehicle had made it most of the way through the intersection before being struck by Price's vehicle. He testified that Price's vehicle was moving forward when he tapped on Charles's shoulder and told him that they were about to get hit. Adams testified that he sustained injuries to his hands, neck, and back. Maxwell was not called to testify at the trial.

The trial court stated that the issue before the court was who ran the red light, and the plaintiffs presented only one witness to say Maxwell's light was green. The trial court noted that Price presented three witnesses stating his light was green. The trial court stated that based on the evidence presented, the plaintiffs did not carry their burden of proof by a preponderance of the evidence, and the weight of the evidence actually supports Price's version of the facts. Therefore, the trial court found that Maxwell ran the red light.

The trial court signed its judgment on September 28, 2018, stating Price is not liable to the plaintiffs and that all claims asserted by the plaintiffs against Price are dismissed in full, with prejudice. Charles and Adams now appeal the trial court's judgment.

DISCUSSION

Robert Price ran the red light

First, the plaintiffs argue that the overwhelming evidence supports the conclusion that Price ran the red light. They argue the trial court manifestly erred in not rendering judgment in their favor. The plaintiffs argue that when a witness's story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, the court of appeal may find manifest error even in a finding purportedly based upon a credibility determination.

The plaintiffs assert that the independent eyewitnesses offered an incorrect version of events in order to help out their friend, Price. They argue the trial court committed manifest error by crediting the internally contradictory testimony of Price and the independent eyewitnesses over the clear testimony of Adams, which was corroborated by Maxwell's statement to the police at the scene that his light was green.

Price agrees with the plaintiffs that the correct standard of review is manifest error. He argues that a reasonable factual basis exists to support the trial court's finding in his favor. He asserts that the trial court issued its ruling based upon its determination of the credibility, sufficiency, weight, and interpretation of the witnesses presented at trial.

The appellate court may not set aside a trial court's factual findings in the absence of manifest error or unless such findings are clearly wrong. Stobart v. State, through DOTD , 617 So.2d 880 (La. 1993) ; Mosley v. Griffin , 50,478 (La. App. 2 Cir. 2/24/16), 191 So.3d 16. To reverse the factual findings of the trial court, the appellate court must review the record in its entirety and find that there is no reasonable factual basis for the findings and that the record establishes that the trier of fact was clearly wrong or manifestly erroneous. Salvant v. State , 2005-2126 (La. 7/6/06), 935 So.2d 646 ; Mosley v. Griffin, supra . When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings. Jack v. Eldorado Casino Shreveport Joint Venture, L.L.C. , 52,454 (La. App. 2 Cir. 1/16/19), 264 So.3d 599. The reviewing court should not disturb reasonable factual findings when there is conflict in the testimony. Mosley v. Griffin, supra.

This case presented conflicting testimony between the parties and the trial court assessed the credibility of the witnesses in determining who ran the red light. In assessing credibility, the trial court stated that Adams's testimony seemed credible, but questioned the account that Adams had time to warn his brother of the accident. The trial court noted that Adams had a stake in the outcome, his testimony was self-serving, and he is a convicted felon. The trial court found Price's testimony to be credible, even though it differed from the account given by the three independent eyewitnesses. The trial court noted that it would have been easy for Price to simply alter his version of events to match that of the witnesses, but he did not do so. The trial court stated that the three independent eyewitnesses were all consistent and credible, they did not have a stake in the outcome, and they had no connection to the defendant that would cause them to shade their testimony in his favor.

In reviewing the entire record, we find that the trial court had a reasonable factual basis for its conclusion and was not clearly wrong. The trial court is in the best position to weigh the credibility of the witnesses and we will not disturb that credibility call. This assignment of error lacks merit.

Doctrine of Preemption

In the alternative, the plaintiffs argue that the trial court erred in failing to apply the doctrine of preemption and failing to find comparative fault. They argue that if the testimony of the independent eyewitnesses is accepted, then Price, having stopped at the red light, entered the intersection without waiting to confirm that oncoming traffic had cleared the intersection. They argue the trial court committed manifest error by failing to find comparative fault.

Price argues that the law of preemption does not apply because it is only applicable when the other vehicle is lawfully within in the intersection. He asserts that the Maxwell vehicle ran the red light so it was not lawfully within the intersection at the time of accident. Further, he argues that Charles and Adams were not the "motorists" that the doctrine of preemption contemplates. Rather, the "motorist" was Maxwell, who is not a party to this litigation.

A motorist with a green signal when approaching an intersection cannot depend exclusively on a favorable light. The motorist has a duty to watch for vehicles already in the intersection when the light changed. This duty does not extend to watching for traffic that has not yet entered the intersection. Amos v. Taylor , 51,595 (La. App. 2 Cir. 9/27/17), 244 So.3d 749. In order to preempt an intersection, the motorist must show that he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. He must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Id. ; Mosley v. Griffin, supra.

The trial court reviewed Mosley v. Griffin, supra , in making a ruling on the issue of preemption. The trial court found that there was no evidence presented showing that Price could have avoided the accident. The trial court noted that Price had the green light, proceeded into the intersection, and the accident was unavoidable.

Price testified that he did not see Maxwell's vehicle until the collision occurred. One independent eyewitness described Maxwell's vehicle as "flying" across the intersection. As a result of the impact of the collision, Price's vehicle spun around and Maxwell's vehicle hit a building. As noted above, the trial court found the independent eyewitness testimony to be credible. Based on the evidence and witness testimony, the trial court determined that Price was sitting at a red light when his light turned green. The evidence supports the finding that when the accident occurred, Price had the green light and made a lawful entry into the intersection at a proper speed. According the Price's testimony about not seeing Maxwell's car and the witness stating that Maxwell's car was "flying," it was reasonable for the trial court to conclude that Price entered the intersection under the bona fide belief that he could cross the intersection safely. We find no merit in this assignment of error.

Quantum

The plaintiffs argue this Court should consider the issue of quantum, although the trial court never reached the issue. They argue that they both should be compensated because their injuries effected their jobs as church musicians. Because we do not find merit in the previous two arguments, we do not reach the third issue of quantum.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment in favor of Robert Price. Costs associated with this appeal are assessed to Darrell Charles and Alton Adams.

AFFIRMED.


author: McCALLUM, J.

text:
    BRANCH PROPERTIES, L.L.C., Plaintiff-Appellant v. DOCTOR'S POINT DEVELOPMENT, L.L.C., Defendant-Appellee
    No. 52,687-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    DANIEL C. HUGHES, Lafayette, Counsel for Appellant
    PAUL LOY HURD, APLC, By: Paul Loy Hurd, Monroe, Counsel for Appellee
    Before MOORE, GARRETT, and McCALLUM, JJ.
   McCALLUM, J.

Branch Properties, LLC ("Branch") appeals the trial court's denial of its motion for preliminary injunction. Branch filed for a preliminary injunction against Doctor's Point Development, LLC ("DPD"), alleging that DPD restricted or denied access to a right-of-way that it possesses via previous contracts, agreements, or through acquisitive prescription. DPD counters that although Branch does have an undisputed, forty-foot wide pipeline right-of-way, it holds no other right-of-way across DPD property. Branch filed the preliminary injunction in question with regard to an access road that crosses DPD property and leads to the undisputed pipeline right-of-way. For the following reasons, we affirm the trial court.

FACTS

Branch owns and operates a subsurface pipeline that traverses DPD's property. It is undisputed that Branch has a forty-foot wide right-of-way with regard to the pipeline. Branch is the owner and operator of the right-of-way through its ancestors in title: (1) Branch's purchase of the rights from Louisiana Gas Corporation in 2015 and (2) Louisiana Gas Corporation's purchase of the rights from the O'Quin and Clark families in 1978.

The pivotal portions of the contracts and agreements in question state the following:

... the right to enter upon the land of undersigned situated in the Parish of Jackson, State of Louisiana, and more particularly described, as follows:
... to construct, lay, maintain, operate, alter, repair, remove, change the size of and replace therein pipelines, and appurtenances thereto (including without limitation all protective equipment) for the distribution or transportation of gas and to open, clear of trees and brush, and to maintain said right-of-way and to keep the same clear of underbrush, trees and other obstructions. Grantee shall also have the right to lay a second pipeline, subject line to be laid adjacent to and parallel with the first.
It is understood and agreed that the right-of-way and easement herein granted shall be forty (40') feet in width.
The grantee shall have the right of ingress and egress to and from said right-of-way herein granted for the purposes herein described.
... Grantor agrees not to construct or permit to be constructed any house, structures, or obstruction on or over said Right of Way that will interfere with the construction, maintenance or operation of said pipeline(s) or appurtenances constructed hereunder.

DPD owns the approximately 140 acres of immovable property through which the pipeline runs. However, DPD does not own the mineral rights to the property. DPD purchased the property, which was mostly timberland, with the plan of building a residential subdivision. Included within its plans for the property were utility lines, both water and electrical, that would impinge upon Branch's pipeline right-of-way. Furthermore, DPD planned to construct a road or multiple roads that would overlie the surface of the pipeline right-of-way.

DPD informed Branch of its plans for the residential community. Thereafter, on March 20, 2018, Branch filed a petition for preliminary injunction and permanent injunction. Originally, Branch filed its cause of action to prevent DPD from building any utility lines or roads across its undisputed pipeline right-of-way. Prior to the hearing, the parties stipulated that DPD could move forward with its plans to construct utility lines and roadways.

Thereafter, Branch alleged that DPD threatened Branch employees with "calling the law" if Branch proceeded to use an access road for "pigging" operations. The access road in question is a road that crosses DPD property, allegedly intersecting or ending as an access point to the forty-foot pipeline right-of-way. Branch argued that it was necessary for it to use the access road for the "pigging" of the pipeline. Branch then moved forward with a preliminary injunction with regard to the access road only.

The Court held a hearing on July 19, 2018. After taking evidence and hearing testimony, the trial court took the matter under advisement, allowing the parties to brief the issues. With the post-trial briefs filed, the trial court issued its reasons for judgment, denying Branch's preliminary injunction.

DISCUSSION

Louisiana Code of Civil Procedure Article 3601(A) states, "An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law[.]" A trial court may grant a preliminary injunction where a party makes a showing of three things: (1) that the injury, loss or damage he will suffer if the injunction is not issued may be irreparable; (2) that he is entitled to the relief sought; and (3) that he is likely to prevail on the merits of the case. See Meredith v. I Am Music, LLC. , 2018-0659 (La. App. 1 Cir. 2/13/19), 265 So.3d 1143 ; see Denta-Max v. Maxicare Louisiana, Inc. , 95-2128 (La. App. 4 Cir. 3/14/96), 671 So.2d 995. Additionally, a preliminary injunction is a procedural device interlocutory in nature designed to preserve the existing status pending a trial of the issues on the merits of the case. Smith v. West Virginia Oil & Gas Co. , 373 So.2d 488, 494 (La. 1979).

Louisiana Code of Civil Procedure Article 3663 states the following:

Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
...
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.

The grant or denial of a preliminary injunction is left to the sound discretion of the trial court and will not be disturbed on appeal except for a clear abuse of that discretion. Cason v. Chesapeake Operating, Inc. , 47,084 (La. App. 2 Cir. 4/11/12), 92 So.3d 436, 441, writ denied , 2012-1290 (La. 9/28/12), 98 So.3d 840. Although the trial court may consider evidence that would later be submitted for the case on the merits so as to consider the likelihood of the petitioner proving its case for a permanent injunction, it does not actually decide the case on the merits when it grants or denies the preliminary injunction. Therefore, although the appellant has argued significantly the merits of its case, we must simply decide if the trial court clearly abused its discretion when it denied Branch a preliminary injunction.

At the hearing on the preliminary injunction, the trial court accepted and considered a generous amount of evidence prior to making its decision. The trial court heard testimony from two representatives on behalf of Branch: Bobby Stringer and Kurt Carleton . The trial court also heard the testimony of the adjoining landowner, Charlie Schaeffer. Mr. Schaeffer, at the time of the hearing, had lived next to the property and access road in question for nine years. Additionally, the trial court accepted into evidence the following:

(1) The Clark and O'Quin easement agreements.
(2) The assignment and bill of sale by Louisiana Gas Corporation to Branch.
(3) A memorandum of lease between the O'Quin family and Rio Bravo Exploration & Production Company.
(4) An assignment and bill of sale between Texas Petroleum Investment Company and CML Energy, LLC.
(5) A State of Louisiana Office of Conservation Order for the Hoss RA SUE alternate unit well.
(6) Numerous aerial photos of the property in question for the years 1997, 2005, 2017 and 2018.
(7) A memorandum of lease between the O'Quin family and Rio Bravo Explorations & Production Company.
(8) Well information for the area.

On August 24, 2018, the Honorable W. Peyton Cunningham, Jr., signed a five-page "Reasons for Judgment and Judgment." In his reasons, Judge Cunningham first explained that Branch had filed for injunctive relief with regard to DPD building subdivision improvements; however, the parties signed a stipulation, settling that specific matter. Thus, with that matter settled, the hearing before the trial court only concerned the access road. He further noted the abundant amount of evidence he accepted into the record for his consideration on the matter. Giving specific reasons, he denied Branch's request for a preliminary injunction.

Judge Cunningham found that Branch failed to prove that it held a recorded servitude or any right-of-way to the access road in question, that such would not likely be proven at the trial on the merits and that Branch failed to show a need for a preliminary injunction to preserve the status quo of the parties. He reasoned that the contracts and agreements, as presented, did not sufficiently prove that Branch had a right to use any property beyond the forty-foot pipeline right-of-way. He also found that Branch failed to prove any intent by DPD to interfere with Branch's ability to maintain the pipeline or access the pipeline within the forty-foot wide right-of-way. He found that no urgent or necessitous circumstance for the issuance of the preliminary injunction existed. He additionally found that granting the preliminary injunction would actually disturb the status quo since Branch failed to present adequate proof of any continuous, normal or notorious possession or use of the access road in question. He finally found, based on the evidence presented and considered for the preliminary injunction, that the agreements, mineral leases and contracts in question only granted access to the forty-foot wide pipeline right-of-way and that Branch had failed to maintain any possession otherwise when it failed to pay the annual lease amounts required by the contracts.

After considering ample evidence with regard to Branch's alleged use or nonuse of the access road in question, the trial court found that issuing a preliminary injunction would actually be inapposite to preserving the status quo of the parties. The access road in question was not maintained sufficiently to show Branch's prior, continuous use. This was corroborated by the aerial photo evidence and testimony of at least one neighbor to the property. Furthermore, at the hearing, evidence came to light that Branch has other, public road options to access the pipeline in question, and to perform the work and maintenance Branch deems necessary.

The trial court considered multiple agreements, contracts and orders with regard to the rights, easements and rights-of-way of the parties and found that Branch, within the context of a preliminary injunction hearing, was most likely only entitled to the forty-foot right-of-way. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. C.C. art. 2046 ; Clovelly Oil Co., LLC v. Midstates Petroleum, Co., LLC. , 2012-2055 (La. 3/19/13), 112 So.3d 187, 192. "However, even when the language of the contract is clear, courts should refrain from construing the contract in such a manner as to lead to absurd consequences." Id. "Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole." La. C.C. art. 2050 ; Clovelly Oil , 112 So.3d at 192.

In interpreting the contracts and agreements in question, the trial court correctly found that Branch is not entitled to a right-of-way beyond the undisputed forty-foot pipeline right-of-way. The plain language of the contract restricts such access to the forty-foot wide pipeline area. Furthermore, under the interpretation offered by Branch, the absurd consequence occurs wherein Branch would seemingly have almost unfettered access to all of DPD's property in order to merely access the pipeline. This is particularly troublesome in light of the fact, presented for the sole consideration of the preliminary injunction, that Branch has access to the pipeline via public roads and that other agreements, plat attachments and orders clearly restrict the rights of Branch to the forty-foot pipeline right-of-way.

Thus, in light of the stipulation made between the parties prior to the hearing on the preliminary injunction, the copious amount of evidence which the trial court methodically considered and the five-page, well reasoned, written ruling filed by the trial judge, we do not find the trial court to have clearly abused its discretion in denying Branch a preliminary injunction. Although the trial court may very well find that Branch is entitled to an injunction after a trial on the merits, the only matter previously before the trial court and now before us is that of a preliminary injunction. Based on the evidence at the hearing, the trial court appropriately concluded that Branch failed to make a showing that a preliminary injunction was necessary to preserve the status quo of the parties. Moreover, the court did not err in finding that Branch would not likely succeed at the trial on the merits for the permanent injunction. Finally, Branch did not sufficiently prove that an irreparable injury would occur.

The Court notes that Branch also urged an evidentiary assignment of error. Branch alleges that the trial court erred when it considered an agreement titled "Surface and Sub-Surface Agreement." DPD counters that Branch waived any objection when it stated in an email to the trial judge that the court could consider the document but that it was irrelevant to the issues before the trial court. After reviewing the record, we find that this assignment of error has no merit. In fact, Branch fails to adequately demonstrate that it otherwise carried its burden of proof. More to the point, even excluding the Surface and Sub-Surface Agreement to which Branch now objects, we still find that the evidence and testimony supports the trial court's denial of the preliminary injunction. Therefore, we affirm the trial court's judgment.

CONCLUSION

The judgment of the trial court is AFFIRMED. All costs of this appeal are assigned to the appellant.

      "Pigging" is the dewatering of the pipeline, which Branch alleges is a normal, required maintenance procedure to ensure the safety of the pipeline.

      Kurt Carleton is the owner and manager of Branch.