author: EZELL, Judge.

text:
    HIDDEN GROVE, LLC v. Richard BRAUNS and Leslie Brauns
    CA 17-250
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017
    Patrick J. Briney, Michael Patrick Corry, Sr., Briney Foret Corry, P. O. Box 51367, Lafayette, LA 70505-1367, (337) 237-4070, COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns, Leslie Brauns
    Gerald C. deLaunay, Perrin, Landry, deLaunay, P.O. Box 53597, Lafayette, LA 70505, (337) 237-8500, COUNSEL FOR PLAINTIFF/APPELLEE: Hidden Grove, LLC
    Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

Richard and Leslie Brauns appeal the decision of the trial court granting summary judgment in favor of Hidden Grove, LLC, thereby dismissing their reconventional demand claims of detrimental reliance. For the following reasons, we hereby affirm the decision of the trial court.

The relevant facts of this case were noted in our prior opinion, Hidden Grove, LLC v. Brauns , 17-250, p.1 (La.App. 3 Cir. 5/17/17), 219 So.3d 1169, 1171, as follows:

The instant litigation arises out of the purchase of lots in the Hidden Grove Subdivision. The Braunses purchased Lot 14 of this subdivision from a third party unrelated to this litigation. They purchased Lot 15 from Hidden Grove. In association with the purchase of Lot 15, the Braunses were also given a right of first refusal for Lots 16 and 17 of the subdivision by Hidden Grove.
A disagreement arose regarding the excavation of Lots 16 and 17 by the Braunses. They claim that Hidden Grove had agreed to permit them to lower the elevation of Lots 16 and 17 without having to build a retaining wall at the back of these lots. Hidden Grove contends that the excavation of Lots 16 and 17 were only approved because the Braunses had agreed to build a retaining wall at the back of these lots.
Hidden Grove filed suit seeking specific performance and damages associated with the removal of the soil from Lots 16 and 17 and the construction of a retaining wall at the back of these lots. Initially, the Braunses answered the suit and filed a reconventional demand against Hidden Grove raising a claim for damages based on detrimental reliance. The Braunses later amended that reconventional demand and also filed a third party demand seeking damages against three individuals: Jeffery Gossen, Gerald Gossen, and Jonathan Burke, based on their alleged actions and agreements with respect to the excavation.

Hidden Grove filed a motion for summary judgment seeking dismissal of the Braunses' reconventional demand claims of detrimental reliance. When the Braunses failed to timely file their opposition to the motion for summary judgment, Hidden Grove filed a motion to strike their opposition and the attached affidavit of Mr. Brauns. The trial court granted the motion to strike, then granted the motion for summary judgment. From that decision, the Braunses appeal.

The Braunses assert one assignment of error on appeal, claiming that the trial court erred in holding that the parol evidence rule applied to their claims, rendering inadmissible Mr. Brauns' affidavit testimony. We disagree.

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La.Code Civ.P. art 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review. Jackson v. City of New Orleans , 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197 [190 L.Ed.2d 130] (2014).
The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. La.Code Civ.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.
"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish, 16-951, pp.4-5 (La.App. 3 Cir. 4/5/17), 216 So.3d 98, 102 (quoting Jackson , 144 So.3d at 882 )(footnote omitted).

Motions for summary judgment are governed by La.Code Civ.P. arts. 966 and 967. The most recent amendment to La.Code Civ.P. art. 966(B)(2) altered the deadlines for filing motions for summary judgment and oppositions thereto, and now provides: "Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion." The time limit set forth by La.Code Civ.P. art. 966 for the serving of affidavits in opposition to a motion for summary judgment is mandatory." See Buggage v. Volks Constructors , 06-175 (La. 5/5/06), 928 So.2d 536 ; Guillory v. Chapman , 10-1370 (La. 9/24/10), 44 So.3d 272.

The Braunses couch their appeal as if Mr. Brauns' affidavit testimony was not considered because of its contents. However, even a cursory review of the record would show that it was not considered because it was untimely. The deadline for filing an opposition to Hidden Grove's motion for summary judgment was June 13, 2016. The opposition was filed one full week past that deadline, on June 20, 2016. Counsel for the Braunses openly admitted at the hearing below that the opposition including the affidavit, was untimely. The trial court granted Hidden Grove's motion to strike the opposition and affidavit and did not consider the evidence attached thereto in making its ruling. There was no error in that action. In fact, the ruling on the motion to strike has not even been appealed. Though the trial court did mention parol evidence in his reasons, "[a]ppeals are taken from the judgment, not the written reasons for judgment."

Wooley v. Lucksinger , 09-571, 09-584, 09-585, 09-586, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (quoting Greater New Orleans Expressway Comm'n v. Olivier , 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24.)

The judgment at issue here granted summary judgment in favor of Hidden Grove. Though the Braunses' assignment of error only deals with the admissibility of the affidavit and does not directly challenge the trial court's ruling on the motion for summary judgment, we will review that decision for the sake of thoroughness.

"To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance." Louisiana Office of Risk Mgmt. v. Richard , 13-890, p. 5 (La. 10/15/13), 125 So.3d 398, 402. Under Louisiana law, "it is difficult to recover under the theory of detrimental reliance because estoppel is not favored." Id.

The evidence attached to Hidden Grove's motion for summary judgment is the only evidence we may consider in our review. After our de novo review of that limited evidence, we find that the Braunses cannot satisfy their burden of proof with respect to their claims for detrimental reliance. The sale documents in record show no language referring to the excavation of lots 16 and 17, either as a condition of the sale or otherwise. On December 20, 2012, after the sale of the property and before the excavation began, Hidden Grove informed the Braunses that "[a]ny excavation must not interfere with the maximum allowable footprint of future home or homes." Mr. Brauns acknowledged this on January 18, 2013, via his signature. While it is clear that the excavation was discussed, the evidence properly before us does not establish any actual promise by Hidden Grove to allow the excavation of lots 16 and 17, any terms or requirements for the approval of such excavation, or any change in position by the Braunses to their actual detriment. As such, the Braunses did not show that they can prevail on any claims for detrimental reliance, as there is no evidence supporting their claim. The trial court did not err in granting summary judgment in favor of Hidden Grove.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are hereby assessed against the Braunses.

AFFIRMED.

      Even had Mr. Brauns' affidavit been timely and considered, the trial court's decision would likely still stand, as any testimony therein would have then been correctly excluded as improper parol evidence, as the Braunses claimed that the excavation was a precondition of the sale, while the sale documents themselves set forth nothing at all regarding excavation of lots 16 and 17. However, since the Braunses' evidence was stricken for being untimely, any argument as to the actual nature of the contents of the affidavit are moot and need not be addressed further.


source: Caselaw Access Project

author: WILLIAMS, C.J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF A.A., A.A., and A.W.
    No. 52,388-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018.
    S.A., Appellant, In Proper Person
    STEVEN TEW, District Attorney, RAMSEY L. OGG, Assistant District Attorney, Counsel for Appellee, State of Louisiana
    ACADIANA LEGAL SERVICES CORPORATION, By: Elizabeth C. Brown, Counsel for Appellee, A.A., A.A., and A.W.
    FRED D. JONES, Counsel for Appellee, D.W.
    Before WILLIAMS, GARRETT, and STONE, JJ.
   WILLIAMS, C.J.

S.A., the father of A.A., A.A., and A.W., appeals a judgment of the trial court awarding custody of the minor children to the mother, D.W. For the reasons that follow, we affirm in part, reverse in part and remand with instructions.

FACTS

S.A. ("the father") and D.W. ("the mother") are the biological parents of three minor daughters, A.A. (born November 17, 2001), A.A. (born November 21, 2002), and A.W. (born July 18, 2007). The children had been in the custody of the father for approximately seven years due, in part, to the mother's history of substance abuse.

On October 20, 2016, the Department of Children and Family Services ("DCFS") received a report from a high school counselor in Monroe, Louisiana, alleging that the victim, who was 14 years old, had reported the following to two school counselors: she was having thoughts of suicide; she was "fed up" with her father's abusive tendencies; her father had "beaten" her that morning; and her father had been "whipping" her with two belts at a time since she was in the sixth grade. The victim showed the counselors multiple "red welts" on her legs and thighs. The DCFS report also stated that the victim reported that she planned to commit suicide by hanging herself with a "belt or rope."

During its investigation of the allegation of abuse, DCFS interviewed several individuals, including the victim, A.A., A.W., the father, the mother, and school personnel. The victim stated as follows: the father learned about comments she had published on her social media account; he confronted her and demanded that she log into her account so that he could delete the account; she refused to do so; the father instructed her to "hold her hands out so that he could whip her"; when she refused to follow his instructions, the father began to strike her with two belts at the same time; the father customarily struck her and her sisters on their hands, arms or buttocks "because he does not want to leave marks for their schools to see"; the father would tell her and her sisters that calling DCFS would be futile because "they didn't do anything to him on the two occasions they came out" in the past; and the abuse from the father caused her to consider committing suicide.

During his interview with the DCFS investigator, the father admitted that he "disciplined" the victim because she disobeyed him. He stated that he attempted to strike the victim on her hands but he was unable to do so because she was "fighting him off." The father also stated that the victim wanted him to leave bruises on her body "so she could report it."

A.A. and A.W. corroborated the victim's account of the events of that morning. They also reported that they had been subjected to "whippings" by the father and that they were afraid of him, and stated that they did not like living with their father because he was "abusive." According to A.A., the father would often state, "I don't care if I abuse you." A.W. stated that she felt "like she is in prison at her father's house."

DCFS received an instanter order, dated October 20, 2016, removing the children from the custody of the father and placing them in the custody of DCFS; the reason for the order/removal was "physical abuse." A continued custody hearing was held on October 25, 2016. During that hearing, the state requested that the mother be tested for illegal drugs; the trial court so ordered. The father stipulated to continued custody of the children with DCFS with "liberal visitation" with A.A. and A.W. At the conclusion of the hearing, the court found "reasonable grounds to believe the children are in need of care, that continuation in the home is contrary to the welfare of the children and that continued custody is necessary for the children's safety and protection."

A review hearing was held on November 18, 2016, during which it was revealed that the mother had tested positive for cocaine. Subsequently, on November 30, 2016, the state filed a petition to adjudicate the children in need of care. Thereafter, the father and the mother stipulated that the children were in need of care without admitting the allegations set forth in the petition. The court's disposition order continued custody of the children with DCFS with a goal of reunification with a parent. By this time, A.A. and A.W. had been placed in the home of a maternal relative; the victim had been placed in a group home.

Throughout these proceedings, the father and the mother were provided with individual case plans. The father's case plan required him to, inter alia : maintain adequate shelter, food and utilities; attend visitations with the two younger daughters; complete a DCFS-approved anger management class; demonstrate what he learned in the parenting and anger management classes during supervised visits with the children; complete individual therapy sessions and family counseling with his children and follow the recommendations of the provider; complete a batterer's intervention program and follow the recommendations of the provider; pay $75 per child in monthly parental contributions to support the children while in DCFS custody; and make himself available for monthly DCFS home visits.

The mother's case plan required her to, inter alia : maintain adequate shelter, food and utilities; attend visitations with the children; continue to pay court-ordered child support; submit to a DCFS-approved substance abuse assessment and follow the recommendations of the provider; submit to random screenings for illegal drugs; develop a "relapse plan" for the children in the event of relapse; enroll in a 12-step program and aftercare program; and make herself available for monthly DCFS home visits.

A review hearing was held on October 10, 2017. During that hearing, it was revealed that the father was no longer represented by the attorney he had retained. The father refused to be screened to ascertain whether or not he qualified for legal representation by the indigent defender board. Throughout the proceedings, the father rejected the trial court's offer to appoint an attorney. The father would often complain that he did not understand the case plan or certain aspects of the proceedings; however, he ignored the trial court's recommendation that he obtain legal counsel. Rather, the father steadfastly opted to represent himself.

Meanwhile, according to DCFS, the mother made significant progress on her case plan: she maintained adequate housing; she attended visits with the children; she earned sufficient income to meet the needs of the children; she was able to demonstrate a willingness to place the needs of the children above her own; she completed a substance abuse program, participated in a 12-step program and maintained her sobriety.

The father completed anger management and parenting classes. However, he did not demonstrate that he had the ability to apply what he learned from the classes because he ceased visiting with the children under DCFS supervision. The father also failed to complete a batterer's intervention program, a more in-depth program aimed at addressing anger and abuse issues. Further, the father stopped attending individual and family therapy sessions.

A review hearing took place on January 9, 2018. At that hearing, DCFS requested to "maintain the goal of reunification with the concurrent goal of adoption[.]" According to DCFS, although the mother had completed most of her case plan, "she still need[ed] to work on some substance abuse issues." At that hearing, the father informed the court that he was unaware that the plan was to reunite the children with the mother because he had been "led to believe that reunification was going to be with [him]." The father also responded to DCFS's assertions that he had not completed his case plan as follows: he attended only one family therapy session because the therapist "only scheduled one" appointment; he could not afford to pay for the batterer's intervention course; he was not aware that his case plan required him to make financial contributions for the support of the children; he did not want counsel appointed because his previous attorney "gave [him] a false sense of hope"; he suspended visits with A.A. "because I didn't want to put too much pressure on her"; he was not comfortable attending visits "in a small room," and he was not allowed to take A.A. and A.W. "out to eat and stuff like that"; and he could not afford to financially contribute to the children's care because he was paying legal fees stemming from the criminal charges and from the child custody matter.

During the hearing, both DCFS and the trial court noted that the mother had completed all aspects of her case plan "except the sobriety." Additionally, during the hearing, it was noted that the mother's Medicaid insurance paid for her therapy sessions, while the father was paying through private insurance and out of pocket. The father reiterated that he was willing to complete his case plan but he was unable to afford the cost of completing the courses. He stated that he would comply with the case plan if DCFS would pay for his courses. The trial court advised the father to "get a lawyer" to assist him in understanding the proper procedures to follow. At the conclusion of the hearing, the state recommended that the goal remain reunification and that the mother's visitation be increased to include some overnight visits with the children. The father was ordered to refrain from visiting the children outside of DCFS supervision. The court also ordered that the goal remain reunification. Further, the court addressed the father as follows:

[I] think you're at a disadvantage by not having [an attorney], especially that may be free to you, but, uh - well-so, Mr. [A.] it's going to be - I'm going to give - we'll have a new date of February 23, 2018. We'll get notice to him of that date, and that'll be the day that you can call your witnesses and bring your testimony forward to prove your aspects of the case plan. The goal right now will be Reunification. We'll maintain the goal of Reunification with [the mother] and have some increased visitation.
Mr. [A.], all of your rights need to go through D.C.F.S. That - that's the only way that it can go. All of your financial contributions need to be documented through D.C.F.S. You don't give them $10 on the side to each of them and say here's $10. You give $30 to D.C.F.S. and let D.C.F.S. distribute the $30 to them.
Everything needs to go through them for your - I mean, there's a reason they were removed, and the State puts a high threshold on what needs to be done to go back. We just can't be in a world where, you know, parents come back and say, Well, let me tell you about all the things that they don't know I've been doing." That - that just, sort of, isn't the way it works[.]
***
Mr. [A.], like I said, bring your witnesses on that day, sir, so we can go forward or - or - I - I'll give you one more chance if you want to rethink that lawyer. Mr. Manning's - Mr. Manning would love nothing better than to jump in right now[.][ ]
***

The father chose to continue to represent himself.

Another review hearing was held on February 23, 2018. The DCFS foster care supervisor reported that the mother's drug screens had been negative for six months. The foster care supervisor also reported that the agency had begun a trial placement with the children in the mother's home and that the placements regarding A.A. and A.W. were going well. However, the supervisor reported that the victim had "made a false report" to DCFS regarding the mother. The DCFS foster care supervisor also reported that, at that time, the agency was not recommending reuniting the victim with the mother because the victim was struggling with ongoing issues of self-harm.

During the hearing, the children's attorney reported that the children continued to express that they did not want to live with the father; however, they had expressed a desire to maintain visitation with him. The father stated, "I don't have anything against the mother. You know, I want to establish a relationship with my children as well." He also stated that he was not willing to relinquish custody of the children because he did not believe the mother was capable of caring for these three children, in addition to her three younger children, on her own. The father continued to express that supervised visitation with the children at the DCFS office was "uncomfortable."

The trial court addressed the father's statements by explaining that being "uncomfortable" is often a part of the CINC process. The court encouraged the father to "take the best advantage of what you have." The father continued to express his views that DCFS was assisting the mother with her case plan but was not providing him with similar assistance. The trial court encouraged the father to "do everything [DCFS] asks you to do even if it's uncomfortable."

A permanency hearing was held on April 3, 2018, during which DCFS requested to be relieved of custody of the children and recommended that they be placed in the custody of the mother. The foster care supervisor reported that the children had been residing in the mother's home for approximately one month and that they were doing well. The attorney representing the children also reported that the children were doing well and that they had expressed a desire to remain in the custody of the mother.

The father requested full custody of the children. In the alternative, he requested, "if not full, at least half because the mother has six children, and she's not going to be able to provide for all six." He reiterated his objection to the way he believed DCFS handled the case and complained that he was not provided with the services necessary to complete his case plan. The trial court stated:

All right. Well, your - your objections are noted, Mr. [A.]. I think at this point in time I find that it is in the best interest to have the children placed with their mother, and you know, you can work on your relationship that you have with your children. It's that simple.

The father objected to the ruling, stating that DCFS had "violated [his] rights." The trial court encouraged the father to seek legal counsel and informed him that its ruling was "about the best interest of the children." DCFS recommended supervised visitation for the father. The trial court and the attorney representing the children expressed concerns with regard to who would supervise visitation once DCFS was released from the case. The attorney for the children indicated that having the mother responsible for supervising visits was "a recipe for disaster, quite frankly." The mother's attorney requested a recess to confer with his client regarding supervised visits. When matter reconvened, the trial court stated:

We will return [the children] to [the mother]. This Court will, uh - will dispose of the jurisdiction. Of course, if something comes up later on, we would be back in place but the children will perman - permanently be placed back with their mother[.] They're basically yours now, ma'am. You get to decide who they go visit. You get to decide when they visit, where they visit, and all of those kinds of things. I would encourage you to work with the father because he does have the right to see his children and then maintain [a] relationship.
Sir, if you're not pleased with what happens, you can go file a suit down in the Ouachita Parish Court. That will be a civil matter. The D.C.F.S. aspect is done. You know, kind of we're done. This is where the children are going to go. You can bring your own matter in your name that doesn't have D.C.F.S. involved at all where you'll go before another judge and say, "I'm not seeing my kids enough."

Thereafter, the following colloquy occurred:

[THE FATHER]: What's the grounds though? I mean they -
THE COURT: The grounds are that the case plan has been worked, that we've had a trial placement, and that everything's been done on her end, and I've not seen progress on your end.
[THE FATHER]: I haven't been given a fair opportunity. I've stressed that several times.
THE COURT: Yes, sir, you have. You have and I think the last time I told you that you need to bring me your proof today, of you know - that you've been denied these things. Do you have witnesses out there?
[THE FATHER]: I - I wanted another court date because I didn't have time to prepare.
THE COURT: No sir. We were here last in January -
***
[THE FATHER]: It was a few witnesses that I couldn't get in touch with.
THE COURT: January and February, all of March has gone by and we're into April. The - this case has been going on for how long?
***
We're not going to say we haven't had time.
***

The written judgment provides, in pertinent part:

***
The Department's efforts to finalize the children's permanency plan were reasonable because [the mother] has maintained housing and has been able to meet the needs of the other children in her home. [The mother] has completed the substance abuse portion of her case plan. [The mother] has income to meet her children's needs. She has been able to maintain her sobriety and put the needs of her children before her own.
[The father] has made very little progress on his case plan. [The father] has completed the instructional Parenting portion of his case plan and anger management. However, [the father] has not been able to apply what he should have learned from Parenting and Anger Management. [The father] does not want the agency to supervise any visits. [The father] has not requested any visits with his children to-date. He is not addressing the reason the children came into care.
***
Court finds the extent of [the mother's] compliance with the case plan satisfactory , the health and safety of the child[ren] being the paramount concern.
***
Court finds the extent of [the father's] compliance with the case plan unsatisfactory , the health and safety of the child[ren] being the paramount concern.
***

(Emphasis in original).

The father now appeals.

DISCUSSION

The father contends the trial court erred in adjudicating the children in need of care. He argues that he did not stipulate that the children were in need of care, and if his prior attorney did so on his behalf, the stipulation was without his knowledge or consent. The father also argues that the children were not in need of care because DCFS did not prove that he physically abused the victim. Further, the father asserts that the victim has a "history of self-harm and manipulation," and he implies that the marks/bruises seen on the victim on the day of the incident could have been self-inflicted. According to the father, the victim wrote a letter apologizing for her accusations and he has "forgiven her."

The purpose of Title VI of the Children's Code, entitled "Child in Need of Care" and applicable to these proceedings, is "to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others[.]" La. Ch. C. art. 601. Furthermore, "the health, safety, and best interest of the child shall be the paramount concern in all proceedings under [Title VI]." Id.

The law regarding child in need of care ("CINC") proceedings is well settled. La. Ch. C. art. 606 sets forth the grounds on which a child can be adjudicated in need of care, and provides, in pertinent part:

A. Allegations that a child is in need of care must assert one or more of the following grounds:
(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker [and] his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
***

La. Ch. C. art. 603(1) provides, in pertinent part:

"Abuse" means any one of the following acts which seriously endangers the physical, mental, or emotional health and safety of the child:
(a) The infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.
***

We first note that the father's contention that he did not stipulate that the children were in need of care is belied by the record in this case. A full hearing was conducted on January 10, 2017, during which the parties unequivocally stipulated that the children were in need of care. The colloquy was as follows:

[ASSISTANT DISTRICT ATTORNEY]: [A]t this time, I believe, we're able to stipulate to child in need of care.
[COUNSEL FOR THE MOTHER]: Your Honor, on behalf of the mother, we are willing to stipulate without admitting fault to the allegations.
[COUNSEL FOR THE FATHER]: On behalf of the father, we're willing to stipulate without admitting fault on behalf of the father.
[COUNSEL FOR CHILDREN]: I would not be opposed to that stipulation, Your Honor.
***

(Emphasis added). Additionally, the father, through counsel, signed a written stipulation which stated, "Parent [S.A.] stipulates that child is in need of care without admitting the allegations of the petition."

Nevertheless, the father has indicated that he did not knowingly enter into the stipulation that his children were in need of care and/or he did not understand the nature of the stipulation. Therefore, out of the abundance of caution, we have reviewed the record to ascertain whether the trial court erred in adjudicating the children in need of care.

Adjudication of a child in need of care is warranted when a parent shows a repeated pattern of placing a child at risk. State ex rel. L.M. , 46,078 (La. App. 2 Cir. 1/26/11), 57 So.3d 518 ; State ex rel. AR , 1999-0813 (La. App. 1 Cir. 9/24/99), 754 So.2d 1073. At the adjudication hearing, the state bears the burden of proving by a preponderance of the evidence that the child is a child in need of care. La. Ch. C. art. 665 ; State ex rel. L.B. , 2008-1539 (La. 7/17/08), 986 So.2d 62 ; State ex rel. L.M. , supra . It is not the duty of the state to prove its case beyond a reasonable doubt, by clear and convincing evidence, or to disprove every hypothesis of innocence. State ex rel. L.B. , supra ; State ex rel. L.M. , supra .

It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F. , 2000-0948 (La. 6/30/00), 764 So.2d 47 ; State ex rel. L.M. , supra . In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the trial court that is in the unique position to see and hear the witnesses as they testify. Id. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. Id. ; See also Rosell v. ESCO , 549 So.2d 840 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. In re A.J.F. , supra ; State ex rel. L.M. , supra . See also Pinsonneault v. Merchants & Farmers Bank & Trust Co. , 2001-2217 (La. 4/3/02), 816 So.2d 270.

Our review of the record reveals that the state filed a petition to adjudicate the children in need of care alleging as follows:

***
3.
The state alleges that the minors are in need of care because of the following acts or omissions:
A.
Petitioner has information and is of the belief that the above named minor child[ren are] suffering from physical abuse due to the actions of the father, in that he caused cuts and/[or] bruises to his minor child.
B.
Petitioner has information and is of the belief that the above named minor children are suffering from dependency, in that the father was incarcerated for injuries to his minor child and the mother tested positive for illegal drugs.
***

The trial court was able to review documentary evidence regarding the circumstances surrounding the state's decision to request an adjudication that the children were in need of care. The report prepared by the DCFS investigator included statements made by the father and the minor children. In his statement to the DCFS

investigator and in his brief to this Court, the father admitted that he struck the victim repeatedly with at least one belt because she disobeyed him. Further, the victim sustained multiple "red welts" to her lower extremities and expressed thoughts of suicide due, in part, to the father's treatment of her. The two younger children witnessed the incident and also reported that they had been subjected to "whippings" from the father and that they were afraid of him. The marks and/or bruises noted on the victim's legs and thighs were observed by the school counselors and the DCFS investigator. Additionally, when these proceedings commenced, the father had been arrested on charges of cruelty to a juvenile and, soon thereafter, the mother tested positive for illegal drugs. Accordingly, we find no manifest error in the juvenile court's findings of fact or its conclusion that the children were in need of care.

The father also contends the juvenile court erred in placing the children in the custody of the mother. He argues that he was denied the opportunity to complete his case plan because DCFS would not assist him in paying for family counseling and batterer's intervention. He maintains that the trial court refused to order the state to pay for the programs on his behalf.

La. Ch. C. art. 681 provides:

A. In a case in which a child has been adjudicated to be in need of care, the child's health and safety shall be the paramount concern, and the court may:
(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.
***
(5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.

La. Ch. C. art. 702 provides, in pertinent part:

***
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
***
G. When reunification is determined to be the permanent plan for the child, the court shall advise the parents that it is their obligation to achieve the case plan goals and correct the conditions that require the child to be in care within the time period specified by the court. Otherwise, an alternative permanent plan for the child will be selected and a petition to terminate parental rights may be filed. When adoption is the permanent plan for the child, the court will advise the parent of his authority to voluntarily surrender the child and to consent to the adoption prior to the filing of a petition to terminate parental rights.
***
K. In any permanency hearing for a child whose permanent plan is placement in the least restrictive, most family-like alternative permanent living arrangement, the court or administrative body conducting the hearing shall ask the child about the desired permanency outcome for the child.

More than simply protecting parental rights, our judicial system is required to protect the children's rights to thrive and survive. State in Int. of S.M. , 1998-0922 (La. 10/20/98), 719 So.2d 445 ; State in Int. of C.S. , 49,955 (La. App. 2 Cir. 3/18/15), 163 So.3d 193 ; State in Int. of P.B. , 49,668 (La. App. 2 Cir. 12/17/14), 154 So.3d 806. Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the state to remove the children from the parent's care and custody. Stability in the home environment and relationships is a consideration in the permanency plan determination. A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention. State in Int. of P.B. , supra .

To reverse a trial court's permanency plan determination, an appellate court must find from the record that the trial court's finding is clearly wrong or manifestly erroneous. State in Int. of C.S. , supra . In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State in Int. of N.C. , 50,446 (La. App. 2 Cir. 11/18/15), 184 So.3d 760 ; State in Int. of P.F. , 50,931 (La. App. 2 Cir. 6/22/16), 197 So.3d 745.

In the instant case, the record reveals that the children were placed in the custody of their mother, who had demonstrated substantial compliance with her case plan. By placing the children with their mother, the juvenile court utilized the first dispositional alternative listed in La. Ch. C. art. 681, i.e. , "place the child in the custody of a parent[.]"

Additionally, at every review hearing, the father was informed of the aspects of the case plan with which he was not in compliance: (1) the failure to attend supervised visits with the children; (2) the failure to make financial contributions to the support of the children while they were in the custody of DCFS; (3) the failure to attend family therapy sessions; and (4) the failure to complete a batterer's intervention program. Instead, the father repeatedly expressed that DCFS should be required to pay for the programs since the agency required him to complete them. The trial court made repeated attempts to persuade the father to complete his case plan and to seek legal counsel from the indigent defender board. Despite the father's complaints that he did not fully understand the nature of the proceedings, he refused to accept or obtain legal counsel and opted to represent himself.

We have reviewed this record in its entirety. As stated above, in October 2016, these children were removed from the father's home and placed in DCFS custody due to allegations of abuse by the father. Both parents had 18 months to complete their individual case plans. By April 2018, the mother had completed her case plan, had demonstrated that she could provide for the care of her children, and had maintained her sobriety. Conversely, the father had not completed batterer's intervention and family therapy, had not visited the children (with DCFS's knowledge or supervision) since December 2016, and had not financially contributed to the children's care since they were placed in DCFS custody. Accordingly we find that the trial court did not err in finding that it was in the best interest of the children that they be placed in the custody of the mother.

The father also contends the trial court erred in failing to award him specified periods of visitation with his children. This argument has merit.

It is well settled that a parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Int. of A.C. , 1993-1125 (La. 1/27/94), 643 So.2d 719, cert. denied , 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995) ; State in Int. of MTS , 49,630 (La. App. 2 Cir. 1/14/15), 161 So.3d 1025 ; State in Int. of ASW , 49,310 (La. App. 2 Cir. 6/25/14), 144 So.3d 1193. This parental interest includes the companionship, care, custody and management of his or her children. Lassiter v. Dept. of Social Svcs. , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ; State in Int. of MTS , supra ; State in Int. of J.M.L. , 47,201 (La. App. 2 Cir. 4/11/12), 92 So.3d 447.

The best interest of the child is the sole criterion for determining a noncustodial parent's right to visitation. Lucky v. Way , 51,706 (La. App. 2 Cir. 9/1/17), 245 So.3d 110, 129, writ denied , 2017-1657 (La. 10/27/17), 228 So.3d 1233 ; Cooper v. Cooper , 43,244 (La. App. 2 Cir. 3/12/08), 978 So.2d 1156. The trial court has the inherent power to determine a child's best interest and to tailor custody orders, including visitation, in a manner that minimizes risk of harm to the child. Id.

We first note that the written judgment is silent as to the father's visitation rights with the children. However, on the record, the court expressly declined to order specified periods of visitation in favor of the father, stating that visitation would be left to the sole discretion of the mother.

Our review of the record reveals that during the last hearing, counsel for the children stated that the children had expressed a desire to visit with the father. However, the trial court dismissed DCFS from this matter and left the specific terms of visitation to the mother's discretion. As stated above, the court stated, "They're basically yours now, ma'am. You get to decide who they go visit. You get to decide when they visit, where they visit, and all of those kinds of things." Thereafter, the court advised the father to file a petition in civil court to obtain visitation.

As noted above, the record reflects that neither DCFS nor the children's attorney objected to the father exercising visitation with the children. The trial court's failure to award specific visitation rights to the father (and sole guardian of the children for more than seven years) was, in effect, a termination of the father's parental rights. This record does not support such a harsh remedy for the father's inaction.

We find that the trial court erred in failing to rule on the paramount issue of whether visitation with the father was in the best interest of the children. Consequently, we reverse the trial court's determination that visitation in favor of the father shall be left solely to the mother's discretion. We remand this matter to the trial court with instructions to conduct a hearing and make a determination of whether visitation with the father is in the best interest of the children, and if so, to order specified periods of visitation with the children in favor of the father.

CONCLUSION

For the foregoing reasons, we affirm the trial court's adjudication that the children were in need of care and its award of custody to the mother. We reverse the portion of the judgment that left the father's visitation with the children to the sole discretion of the mother, and we remand this matter with instructions to the trial court to conduct a hearing to determine whether visitation with the father is in the best interest of the children, and if so, to order specified periods of visitation in favor of the father.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

      The oldest child and the middle child have the initials "A.A." For clarity, the oldest child will be referred to as "the victim" throughout this opinion.

      The DCFS report described the encounter as follows: the father threw the victim onto her bed, sat on her, placed his left arm around her neck and repeatedly struck her with two belts held together; the victim was struggling and kicking as the father was attempting to strike her on her buttocks; as a result, she was struck on her legs and thighs; and the victim had five "red welts," approximately 2.5 inches wide, on her lower extremities.
      The father was arrested and charged with cruelty to a juvenile. However, the criminal charges are not a subject of this appeal.

      The victim was admitted to a local hospital under a physician's/coroner's emergency certificate. She was later transferred to an inpatient behavioral health facility for adolescents.

      Both of the victim's sisters witnessed the incident that morning and were able to describe it in detail. The father's girlfriend was also in the house at the time of the incident. She stated that she heard the victim "talking back" and being disrespectful to the father, but she did not see the physical altercation.

      A protective order had been issued prohibiting all interactions between the father and the victim. Additionally, the trial court suspended visits between the father and A.W. "until further notice."

      The mother was required to attend weekly visits at the caregiver's home. The remaining visits were once a month at the mother's home under the supervision of DCFS.

      Many events transpired while the children were in DCFS custody. By May 2017, only A.W. remained in the home with the maternal relative with whom she and A.A. had been placed. A.A. was removed from the home at the relative's request and was placed in the home of a foster parent in Kilbourne, Louisiana. Approximately one week later, she was removed from that home and placed in a group home in Natchitoches, Louisiana. While in the group home, A.A. was arrested twice and charged with simple battery for fighting.
      In April 2017, the victim attempted to commit suicide and was admitted to a behavioral health facility. Thereafter, she was placed in a group home. Since then, she has had multiple admissions to various facilities for mental health issues and attempts to harm herself.

      In August 2017, the mother had a positive drug screen. However, she was able to demonstrate that she had a prescription for hydrocodone because of a dental issue.

      The father was supposed to visit with A.W. during family counseling. However, he attended only one counseling session during these proceedings. Further, the father ceased supervised visits with A.A. in December 2016.

      The father's reasons for not completing counseling and batterer's intervention varied: he refused to attend the first program to which DCFS referred him; he stated that the second program to which he was referred would not accept his private insurance; he stated that the third program "conflicted with his work schedule"; he stated that he could not afford to pay for the program that was willing to adapt to his work schedule. The father rejected DCFS's suggestion that he find a program that would accept his private insurance. He also blamed the family therapist for failing to schedule appointments. According to the father, he informed the therapist that he could not afford to pay for weekly sessions. Thereafter, the therapist "only scheduled one" appointment.

      The father stated that he had been giving the children money and buying them items. He also stated that he been driving to central Louisiana to visit A.A. "once or twice a month" and he had been visiting A.W. at her school without DCFS's knowledge or supervision.

      The trial court was referring to Attorney Bobby Manning, who frequently represents fathers in DCFS matters through the indigent defender board. Mr. Manning had been appointed to represent the father in the early stages of these proceedings.

      Apparently, the mother's October 2017 drug screen indicated that she tested positive for marijuana. However, the DCFS employee informed the trial court that the drug testing facility had made a mistake and that the mother's drug screen was actually negative.

      According to the foster care supervisor, the victim continued to reside in a group home. During a weekend visit with the mother, the victim contacted DCFS via the department's social media page and reported that she did not want to live with the mother. The victim also stated that she "wanted to do Independent Living" because the mother's "house was nasty, the tub was not clean, and the lights were off." A DCFS worker immediately went to the mother's home and discovered that the victim's allegations were untrue. The mother reported that the victim was "upset" because the mother had been "getting onto her" and "trying to tell her right from wrong."

      The father appears in this appeal pro se and he has filed a brief which does not fully comply with the requirements of Rule 2-12.4. Recognizing the father's pro se status, this Court has attempted to ascertain the substance of his arguments and treat them as properly raised.

      A CINC proceeding is commenced by a petition filed by the district attorney. When authorized by the court, the DCFS may file a petition if there are reasonable grounds to believe that the child is a CINC. See La. Ch. C. art. 631. See also State in Int. of E.M. , 51,511 (La. App. 2 Cir. 6/2/17), 224 So.3d 1122.
      Within 60 days after a child enters the custody of a child care agency, the custodian shall develop a case plan detailing the custodian's efforts toward achieving a permanent placement for the child. See La. Ch. C. art. 673. The case plan shall be designed to achieve the least restrictive, most family-like, and most appropriate setting available, and in close proximity to the parents' homes, consistent with the best interest and special needs of the child. The health and safety of the child shall be the paramount concern in the development of the case plan. See La. Ch. C. art. 675.
      If, at any point in CINC proceedings, the child is removed from his parents' care and control and placed in the custody of the DCFS, the case review process of La. Ch. C. arts. 687 -700 is implemented. The custodial agency shall file a case review report with the court or, if appropriate, with the administrative review body ten days prior to every scheduled review hearing. See La. Ch. C. art. 688. A review hearing shall be conducted by the court or administrative review body three months after the disposition hearing if the child was removed prior to disposition or within six months after the disposition hearing if the child was removed at disposition, but in no case more than six months after removal of the child from his parent(s). Case reviews shall continue to be held at least once every six months thereafter until the child is permanently placed, or earlier upon the motion of a party for good cause shown or on the court's own motion. La. Ch. C. art. 692.


author: BLEICH, J. (Pro Tempore )

text:
    Mitchell STRINGER, Claimant-Appellant v. HAND CONSTRUCTION, L.L.C., Defendant-Appellee
    No. 52,380-WCA
    Court of Appeal of Louisiana, Second Circuit.
    November 14, 2018
    ALEXANDER S. LYONS, Counsel for Claimant-Appellant
    KEAN MILLER LLP By: Ann R. Hankins, Scott L. Zimmer, Shreveport, William H. Priestley, Jr., Counsel for Defendant-Appellee, Hand Construction and Defendant, Zurich American, Ins.
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

Claimant, Mitchell Stringer, who was formerly employed as a site superintendent with Defendant, Hand Construction, LLC, has appealed from an adverse judgment rendered by the Workers' Compensation Judge ("WCJ") dismissing his claim for workers' compensation benefits, medical expenses, penalties, and attorney fees based upon her findings that Claimant was not an employee at the time of his accident, and that his injuries that resulted from the accident did not arise out of or in the course of his previous employment with Defendant. For the reasons set forth below, we affirm.

FACTS/PROCEDURAL BACKGROUND

This workers' compensation suit arises out of injuries sustained by claimant, Mitchell Stringer, on October 10, 2015, in an automobile accident in Little Rock, Arkansas. The evidence introduced at trial shows that Claimant was hired by defendant, Hand Construction, LLC, in Shreveport, Louisiana, sometime after September 30, 2014. From the date of his hire until approximately April 2015, Claimant worked as a site superintendent in Louisiana. From approximately April 2015 through the beginning of October 2015, Claimant worked in Williston, North Dakota, supervising construction of an apartment complex project.

Sometime in early October 2015, Claimant returned to Louisiana to work on a project at Haughton Middle School. While working at the Haughton project, he was called by John Provost, Vice President for Construction Operations for Hand Construction, to attend a meeting at the company office in Shreveport.

Both Provost and Adam Hubble, CFO for Hand Construction, testified that Claimant was informed at this meeting that his employment was terminated effective October 5, 2015. Claimant, however, contended that he was told that the North Dakota project was almost complete, and there would not be any more work for him. According to Claimant, Provost also told him that Claimant would receive two weeks' severance pay.

Provost and Hubble testified that Claimant returned the operational part of the Trimble GPS system to them at the meeting, but did not return his work-issued cell phone or laptop as requested because he wanted to remove his personal data from them. Claimant declined Defendant's offer to have his vehicle shipped to him from North Dakota and told Provost that he had just bought an airline ticket to return to North Dakota because of problems with one of the Trimble models. Claimant testified that the parties agreed that he would use the ticket to fly to North Dakota to retrieve his property and Defendant's GPS equipment. Provost and Hubble, on the other hand, stated that they offered to ship Claimant's pickup truck and personal belongings to his home in Mobile, Alabama. Claimant insisted he was going to pick up his truck from the North Dakota jobsite and offered to retrieve the GPS equipment and ship it back with the cell phone and laptop.

Provost and Hubble were adamant in their testimony that they neither asked Claimant to travel to North Dakota nor sent him there to retrieve Defendant's equipment. Claimant testified that he did not perform any work duties for Defendant in North Dakota other than getting the equipment. He also stated that he used the company cell phone and credit card on his trip to North Dakota and back to his home in Alabama. Both Provost and Hubble testified to their awareness that Claimant still had a company credit card and company phone that he used on that last trip to and from North Dakota. Claimant charged all of his trip expenses, including fuel and a new set of tires, to the company credit card. According to Hubble, there were no restrictions on Claimant's travel arrangements. Both Provost and Hubble stated that they never instructed Claimant not to pick up the company's GPS equipment while he was in North Dakota. The evidence shows that Claimant's final paycheck from Defendant was dated October 9, 2015, and a check described in the ledger as "severance" was issued for the week ending October 16, 2015.

Claimant flew to North Dakota on October 8, 2015, and, as noted above, did nothing other than pick up his personal property, including his truck, and the Trimble equipment that were at the Williston site. On October 10, 2015, while traveling back from North Dakota, Claimant was involved in an automobile accident on Interstate 40 in Little Rock, Arkansas. Due to the injuries he sustained in that accident, Claimant was hospitalized at the University of Arkansas for Medical Sciences Hospital from October 10, 2015, through November 3, 2015. While in the hospital, Claimant underwent at least ten surgeries. Although Claimant is still undergoing medical treatment and despite sustaining permanently disabling injuries, he returned to modified employment with an Alabama employer in January 2017. At the time of trial, Claimant was still anticipating another surgery for a total knee replacement.

Claimant filed a Disputed Claim for Compensation (LWC-WC-1008) on June 29, 2016, seeking wage benefits, authorization for further medical treatment, payment of out-of-pocket medical expenses, and an award of penalties and attorney fees from Defendants, his former employer Hand Construction, LLC, and its workers' compensation insurer Zurich American Insurance Company. Claimant described his accident and injury as follows: [Claimant] was on a "special mission" to retrieve surveying equipment for the [employer] from a jobsite in North Dakota. While returning home, he was involved in an accident with a tractor trailer, sustaining serious injuries to his lower extremities. At the time of the accident, Claimant was still on [employer's] payroll and travel expenses were paid by [employer].

Hand Construction, LLC, filed its answer on August 30, 2016, denying, inter alia , that: (1) Claimant was employed by Defendant on the date of Claimant's October 10, 2015, accident; (2) Claimant was performing services arising out of and during the course of employment with Defendant at the time of the accident; and (3) Claimant sustained a compensable injury on or about October 10, 2015, as a result of a work-related injury. A similar answer was filed by Zurich American Insurance Company on June 5, 2017. Both Defendants filed an amended answer on August 11, 2017, in which they asserted the affirmative defense of offset for any medical expenses paid by Claimant's personal medical insurance.

Trial of this matter was held on August 15, 2017. After taking the matter under advisement, the WCJ found that Claimant was told by Defendant's representatives at the meeting on October 5, 2015, that his employment had been terminated, and that he was no longer performing services for Hand Construction at the time of his accident on October 10, 2015. The WCJ rendered judgment in favor of Defendants, dismissing Claimant's action with prejudice. It is from this judgment that Claimant has appealed.

DISCUSSION

Workers' compensation is a remedy between an employer and an employee; thus, absent an employer-employee relationship, generally there can be no compensation recovery. Johnson v. Alexander, 419 So.2d 451 (La. 1982). A claimant in a compensation action must establish "personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A) ; Marange v. Custom Metal Fabricators, Inc. , 11-2678 (La. 7/2/12), 93 So.3d 1253.

Factual findings in workers' compensation cases are subject to the manifest error standard of review. Lafayette Bone & Joint Clinic v. Louisiana United Business SIF , 15-2137 (La. 6/29/16), 194 So.3d 1112 ; Johnson v. Northwest Louisiana War Veterans Home , 51,875 (La. App. 2d Cir. 2/28/18), 246 So.3d 681. Under this standard, the reviewing court does not decide whether the WCJ was right or wrong, but only whether the Compensation Judge's findings are reasonable. Buxton v. Iowa Police Dept. , 09-0520 (La. 10/20/09), 23 So.3d 275 ; Johnson, supra ; Crawford v. Town of Grambling , 51,090 (La. App. 2d Cir. 1/11/17), 211 So.3d 660, writ denied , 17-0284 (La. 4/7/17), 218 So.3d 110. When there are two permissible views of the evidence, the WCJ's choice between them can never be manifestly erroneous or clearly wrong. Buxton, supra ; Diel v. Defenders Security Co. , 51,390 (La. App. 2d Cir. 6/21/17), 223 So.3d 754 ; Hill v. IASIS Glenwood Regional Medical , 50,531 (La. App. 2d Cir. 5/18/16), 195 So.3d 536, writ denied , 16-1357 (La. 11/7/1), 209 So.3d 104. The reviewing court is not permitted to reweigh the evidence or reach its own factual conclusions from the record. Marange, supra ; Hill, supra .

According to Claimant, the WCJ erred in failing to apply the presumption of employment set forth in La. R.S. 23:1044. Claimant urges that the evidence established that he was engaged in a "business pursuit" of Hand Construction at the time of his October 10, 2015, automobile accident. He urges this Court to reverse the WCJ's factual findings as manifestly erroneous, particularly the judge's conclusion that Claimant was not an employee at the time of his accident, and award him workers' compensation benefits, medical expenses, penalties, and attorney fees.

On the other hand, Defendant urges this Court to affirm the WCJ's judgment. According to Defendant, Claimant, who was terminated five days prior to his accident, was not rendering any service to Hand Construction at the time of his injury and therefore not entitled to the presumption of employment set forth in La. R.S. 23:1044. Furthermore, as a former employee , Claimant was: (1) not in the course of his employment with Defendant at the time of the accident; (2) unable to establish that his injuries were caused by an accident that arose out of his employment with Defendant; (3) not injured in an accident that arose out of his employment with Defendant; and, (4) not on a "special mission" for Defendant or within any other exception to the "coming and going" rule.

Generally, the presumption of employment set forth in La. R.S. 23:1044 applies in situations involving disputes over whether a person is an employee or an independent contractor for purposes of workers' compensation. See Hillman v. Comm-Care, Inc. , 01-1140 (La. 1/15/02), 805 So.2d 1157 ; Shreveport v. Kingwood Forest Apartments , 32,370 (La. App. 2d Cir. 10/29/99), 746 So.2d 234 ; O'Bannon v. Moriah Technologies, Inc. , 15-1460 (La. App. 1st Cir. 6/3/16), 196 So.3d 127 ; Theodore v. Krazy Korner , 12-0173 (La. App. 4th Cir. 05/23/12), 95 So.3d 572. The presumption is not applicable in the instant case; there is no dispute that Claimant had been employed by Hand Construction. Instead, the salient issue is whether Claimant was employed by Defendant at the time of his accident on October 10, 2015 .

The following is excerpted from the WCJ's Opinion in support of her Judgment:

Based on the testimony, the court understands why there may be confusion or a misunderstanding of the exact date Stringer's termination would be effective. This confusion was contributed to by the lack of some document signed by both Hand Construction and Stringer stating the specific date of termination, as well as the payments which were voluntarily made by Hand Construction, after the [October 5, 2015] meeting, which included severance pay, the truck or travel expense, and the fact that the credit card privileges extended beyond the date of that meeting or some specific date.
What is clear from the testimony, is that Hand Construction no longer needed or desired the services of Stringer and had communicated that to him. Stringer had no further job, services, or activities of employment to perform. The payments made by Hand Construction were not wages earned for work performed. Further, the failure to cut off and/or protest the credit card charges being made by Stringer do not reflect an "interest in the transportation" of Stringer.
Stringer's employment with Hand Construction had been terminated and he was no longer performing services for Hand Construction at the time of the accident on October 10, 2015, in Little Rock, Arkansas. Further, Stringer's injuries that resulted from or were caused by the accident, which occurred on October 10, 2015, did not arise out of or in the course of his employment with Hand Construction.

The evidence shows that Claimant's trip to North Dakota was primarily a personal mission for which he was paid no wages. Likewise, Defendant's accommodation of Claimant's requests to use the previously purchased airplane ticket and temporarily retain his company-issued cell phone did not somehow extend or renew the former employment relationship between Claimant and Defendant, even taking into consideration the fact that he was planning on doing them a favor by personally picking up and shipping the Trimble equipment back to them (at the same time that he returned his cell phone and laptop). We find no manifest error in the WCJ's determinations that Claimant's employment had been terminated as of the October 5, 2015, meeting, and that his accident and resulting injuries did not arise out of or in the course of any employment with Defendant.

CONCLUSION

For the reasons set forth above, the judgment of the Workers' Compensation Judge is affirmed. Costs are assessed to Claimant, Mitchell Stringer.

AFFIRMED.

      When used singularly herein, "Defendant" refers to Claimant's employer Hand Construction, LLC, and the plural form "Defendants" refers to both Claimant's employer and its workers' compensation insurer.

      Apparently neither the cell phone and laptop nor the GPS equipment was ever returned to Defendant, having been damaged in the automobile accident.


author: STEPHENS, J.

text:
    Timothy MARTIN, Plaintiff-Appellant v. NATIONAL CITY MORTGAGE COMPANY, Defendant-Appellee
    No. 52,371-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    WINCHELL & JOSEPH, LLC By: Mary Ellen Winchell, Shreveport, Counsel for Appellant
    DEUTSCH, KERRIGAN & STILES By: Jonathan Michael Walsh, New Orleans, Counsel for Appellee
    Before PITMAN, COX, and STEPHENS, JJ.
   STEPHENS, J.

Plaintiff, Timothy Martin, appeals a judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of defendant, National City Mortgage Company, granting its motion to dismiss on the grounds of abandonment. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Timothy Martin and National City Mortgage Company ("National City") entered into a construction loan agreement on February 11, 2004, for a log cabin home of which Martin was to serve as both builder and general contractor. Martin and National City subsequently disagreed regarding the disbursement of funds under the loan agreement and the interpretation of the terms of the agreement. Martin filed suit against National City on November 2, 2007, for breach of contract and violations of the Louisiana Unfair Trade Practices Act ("LUTPA"). After multiple scheduling orders and joint motions to continue trial, National City filed a motion for summary judgment on November 27, 2013.

On March 21, 2014, the trial court granted the motion as to the LUTPA claims and denied the motion as to the breach of contract claims. That same day, National City filed its notice of intent to seek a supervisory writ, the order for which was signed by the trial court on March 24, 2014.

This court denied National City's writ application on March 29, 2014. Thereafter, National City applied for a writ of certiorari with the supreme court on June 27, 2014, which was denied on October 3, 2014. No further activity occurred in the suit until September 29, 2017, when Martin filed a request to schedule a status conference and issued a notice of deposition to National City to depose its expert.

On October 25, 2017, National City filed an ex parte motion and order to dismiss the suit as abandoned. In compliance with La. C.C.P. art. 561, National City submitted with its motion and order an affidavit of its counsel of record attesting that no step in the prosecution or defense of the action had taken place during the three-year abandonment period. Martin filed written opposition to National City's motion on November 2, 2017.

On January 23, 2018, the trial court issued a written ruling granting National City's motion. It held that the last step taken in the prosecution or defense of this action occurred when National City filed its notice of intent to seek supervisory writs on March 21, 2014, and that the action was, thus, abandoned. This appeal by Martin ensued.

DISCUSSION

The sole issue is whether this action was properly dismissed as abandoned pursuant to La. C. C. P. art. 561, which reads in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding: ...
...
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested party by affidavit which provides that no step had been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution of defense of an action.

Article 561 has been interpreted as placing three constraints on parties to preclude abandonment: (1) a party must take some "step" toward prosecution of the lawsuit; (2) the step must be taken in the proceeding and, with the exception of formal discovery, appear in the record; and (3) the step must take place within the legislatively required three-year time period of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co. , 2000-3010 (La. 5/15/01), 785 So.2d 779 ; Allen v. Humphrey , 51,331 (La. App. 2 Cir. 4/5/17), 218 So.3d 256. Article 561 provides that abandonment is self-executing; it occurs automatically once three years passes and neither party has taken a step in the prosecution or defense of the case. Clark , supra ; Allen , supra .

A "step" in the prosecution or defense of an action is any formal action intended to hasten the matter to judgment. James v. Formosa Plastics Corp. of La. , 2001-2056 (La. 4/3/02), 813 So.2d 335 ; Countrywide Home Loans, Inc. v. Estate of Rowe , 51,489 (La. App. 2 Cir. 6/21/17), 224 So.3d 1152. Actions taken by courts do not interrupt the abandonment period because they are not actions in the prosecution or defense of the action taken by the parties in the trial court as required by La. C.C.P. art. 561. James , supra ; Edwards v. Chrysler Motor Co. , 2007-0326 (La. App. 1 Cir. 2/8/08), 984 So.2d 85.

There are two jurisprudential exceptions to the abandonment rule-a plaintiff can demonstrate that his or her failure to prosecute was caused by circumstances beyond the plaintiff's control (contra non valentem ) or can establish that the defendant waived his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, supra ; Wolf Plumbing, Inc. v. Matthews , 47,822 (La. App. 2 Cir. 9/25/13), 124 So.3d 494, 497, writ denied , 2013-2510 (La. 1/17/14), 130 So.3d 949, and writ denied , 2013-2516 (La. 1/17/14), 130 So.3d 950.

While art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit, abandonment balances two policy considerations: one, that every litigant should have his day in court, unimpeded by technical carelessness or unavoidable delay; and two, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark , supra . Whether a step in the prosecution or defense of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis; by contrast, whether a particular act, if proven, impedes abandonment is a question of law that is examined by ascertaining whether the trial court's conclusion is legally correct. Allen , supra .

In his first assignment of error, Martin asserts that the trial court erred in determining that the last step in the prosecution of the case occurred in March 2014, when either National City filed its notice of intent to apply for supervisory writs or the trial court signed the same. We disagree. The notice of intent to apply for supervisory writs filed by National City on March 21, 2014, was clearly a step taken by National City in defense of the action. It was filed into the record of the trial court, and it was taken within three years of the last step taken by either party, which was a reply memorandum filed by National City on March 11, 2014, in support of its motion for summary judgment.

The next "step" occurred on September 29, 2017, when Martin filed his request to schedule a status conference and issued a notice of deposition; however, this was not within three years of the last step taken by either party, i.e. , National City's March 21, 2014, notice of intent to apply for supervisory writs. Therefore, the three-year abandonment period had already run at the time of Martin's September 29 filing. Abandonment occurs automatically and cannot be cured by Martin's post-abandonment actions. See Clark , supra at 789 ; Allen , supra at 259.

Furthermore, this court's denial of National City's application for supervisory writ on May 29, 2014, did not interrupt the abandonment period simply because it was an action taken by the court rather than a step taken by Martin or National City to hasten the matter to trial. See James , supra at 340-341. The trial court correctly determined that the last step in the prosecution or defense taken by either party in the suit occurred on March 21, 2014, when National City filed its notice of intent to apply for supervisory writs. This assignment of error is without merit.

In his second assignment of error, Martin asserts that the trial court erred in not finding that the three-year abandonment period commenced on October 3, 2014, when National City's application for writ of certiorari was denied. As the basis for this assignment of error, Martin argues that the trial court should have applied the "plaintiff-oriented" exception because he was prevented from taking any steps in the prosecution of his action while National City's writ application to the supreme court was pending. We disagree.

In support of his argument, Martin relies on the fourth circuit case Causey v. Caterpillar Mach. Corp. , 2002-0746 (La. App. 4 Cir. 6/26/02), 822 So.2d 188. In Causey , the plaintiff filed a personal injury lawsuit against multiple defendants. Caterpillar, one of the defendants, sought supervisory review of a trial court ruling denying its motion to dismiss the lawsuit on the basis of abandonment. Its notice of intent to apply for supervisory writs was filed into the trial court record on September 1, 1998. The fourth circuit denied Caterpillar's writ application on November 24, 1998. No further activity occurred in the proceeding until October 16, 2001, when Causey filed a motion to set for trial. Caterpillar then filed another motion to dismiss on the grounds of abandonment on January 18, 2002, which was denied by the trial court. The court concluded that Caterpillar's filing of its notice of intent was a "step" in the case, but it also held that the three-year abandonment period was interrupted until the date the appellate court denied the writ application and did not commence to run until after that date. Id. at 192-193. The court reasoned that because it was the defendant who filed the writ application, the plaintiff was effectively prevented from taking his next step in the prosecution-setting the case for trial-until the appellate court denied the writ application. Id. at 193. The court noted that there was no question that Caterpillar would not have proceeded to trial while its writ application was pending in the appellate court or that the trial court or the appellate court would have required it to do so. Id. at 193.

This case is distinguished from Causey , where the court found that the motion to set for trial was likely the only step left for the plaintiff to take in the action. That is not the situation here. Based on Martin's September 29, 2017, notice of deposition, Martin clearly thought there was another step left to take to further his action before setting the matter for trial, i.e. , taking the deposition of National City's expert. National City's pending writ application did not make it impossible for him to take that step, a step which Martin could have taken at any point within the three-year abandonment period. While Martin may be correct in arguing that National City likely would not have complied with any discovery or deposition request while its writ was pending, this assumption does not relieve Martin of his duty to take steps toward hastening his action to trial or, moreover, make it impossible for him to do so. The record reflects there was no stay order in place while National City's writ was pending. Had National City not wished to participate in any discovery or depositions while its writ application was pending, the burden would have been on it to request a stay or seek a protective order based on the assertion of undue burden and expense. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, which dismissed as abandoned pursuant to La. C.C.P. art. 561 the action brought by Timothy Martin against National City Mortgage Company. All costs of appeal are assessed to Martin.

AFFIRMED.

      The writ of certiorari application does not appear in the record, but is reported at 2014-1362 (La. 10/3/14), 149 So.3d 797. The June 27, 2014, filing date, however, was provided by National City in the timeline set forth in its motion to dismiss.

      The trial court's written ruling states the case was abandoned as of March 26, 2017. This date is likely erroneous as there is no action corresponding with that date in March of 2014. In accordance with the substance of its ruling, the trial court likely meant, instead, that the action was abandoned as of March 21, 2017.

      National City's timeline set forth in its motion to dismiss provides the last step taken by either party prior to the trial court's ruling on National City's motion for summary judgment was the oral argument on the motion which occurred on March 10, 2014.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Danny L. HARRIS, Appellant
    No. 52,370-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Sherry Watters, New Orleans, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, SAMUEL S. CRICHTON, TOMMY JAN JOHNSON, PAMELA ROXANNE MOSER, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STONE, and COX, JJ.
   STONE, J.

Following a jury trial, the defendant, Danny Harris, was found guilty as charged of aggravated flight from an officer. Harris was sentenced to serve 3½ years at hard labor and now appeals his conviction. For the following reasons, Harris' conviction and sentence are reversed.

FACTS AND PROCEDURAL HISTORY

Danny Harris ("Harris") was arrested on July 19, 2017, and charged with aggravated flight from an officer in violation of La. R.S. 14:108.1(C). The jury trial began on January 25, 2018, with the following testimony by Agent Joseph Bassett ("Agent Bassett") and Agent Carlos Glass-Bradley ("Agent Glass-Bradley"), of the Shreveport Police Department.

Agent Bassett testified that on July 19, 2017, around 12:45 p.m., he was driving his police vehicle east on Lakeshore Drive near the intersection of Hearne Avenue. Agent Glass-Bradley was in the passenger seat. On this particular day, the agents were working in the Street Level Interdiction Unit, a police unit which handled street-level narcotics offenses in high crime areas. The agents noticed a silver Hyundai traveling west on Lakeshore Drive, heading in their direction. Each agent testified they first noticed the Hyundai, because it had damage to it. Agent Bassett noticed the driver was not wearing his seatbelt. Agent Bassett asked Agent Glass-Bradley to confirm the driver was not wearing his seatbelt, which he did.

Agent Bassett executed a U-turn and activated the lights and sirens on the police vehicle. Agent Bassett testified the police vehicle was standard for street level interdiction --- a dark blue Ford sedan with no markings identifying it as a police vehicle. The agents testified the police vehicle had a spotlight mounted above the driver's side mirror, emergency lights mounted on either side of the rearview mirror, and a camera unit ("MVS") mounted below the rearview mirror. Ordinarily, when police officers activate their lights and/or sirens in their vehicles, the MVS will turn on. Both Agent Bassett and Agent Glass-Bradley testified that the MVS was not working that day, and that it had malfunctioned a number of times before and after that date.

The agents testified the lights and siren could be seen and heard from a distance, and the Hyundai was close enough to their police car for the driver of the Hyundai to have seen and heard both. The driver of the Hyundai slowed down briefly after the agent engaged the lights and siren but then sped away from the police vehicle and turned south on Exposition Street. Agent Bassett testified the Hyundai "ran a stop sign at West College, Lillian, and Stonewall, I believe." Agent Glass-Bradley testified the Hyundai ran four stop signs on Exposition Street. This particular area of Exposition Street is a residential neighborhood with no sidewalk and has foot and car traffic.

The Hyundai turned west on Frederick Street, and the agents saw the driver throw a black item out of the passenger side window. According to Agent Bassett, the Hyundai then ran two stop signs at Milton Street and San Jacinto Avenue, before turning south onto San Jacinto. The agents did not stop to retrieve the package thrown from the Hyundai, because they wanted to first detain the driver.

Agent Bassett testified the Hyundai sped up on San Jacinto to at least 50 mph in a 25 mph speed zone. Both agents testified they knew the Hyundai's speed because they used "pacing," a tactic in which a police officer tries to maintain the same distance between the police vehicle and the vehicle being pursued. Pacing allowed the agents to determine the Hyundai's speed by simultaneously noting the speed at which the agents were traveling.

San Jacinto is also a residential street without a sidewalk. The Hyundai ran several more stop signs on San Jacinto before turning and heading east on Greenwood Road. Agent Bassett paced the Hyundai at about 55 mph on Greenwood Road where the speed limit was 35 mph. Greenwood Road is a high traffic, four-lane street. The Hyundai turned south onto Velva Avenue, which becomes Bolinger Drive, and runs west alongside the state fairgrounds. Agent Bassett testified he had to drive 60 mph to keep up with the Hyundai on Bolinger Drive, which is in a 25 mph speed zone. Agent Glass-Bradley testified there was a driving class going on at the fairgrounds at the time.

The Hyundai then turned south onto Hudson Avenue. The Hyundai ran the stop sign at Hudson Avenue and Midway Avenue and went through a construction zone. The driver then turned east onto Lindholm Street, which turns into Malcolm Street. The Hyundai ran a red light at the intersection of Malcolm and Hearne Avenue. Hearne Avenue is a busy road, and the agents were nearly "t-boned" by a car entering the intersection. The Hyundai turned south onto Virginia Avenue and then west onto Vivian Street. Thereafter, the driver stopped at a residence, exited the Hyundai, and fled on foot.

The agents called for a K-9 unit which located the driver, Harris, hidden between the shed and the fence of a residence on Murray Street. Agent Bassett testified Harris came from behind the shed with his hands up. When Agent Bassett reached for Harris' hand, Harris pulled away, and Agent Bassett struck Harris in the face with a closed fist. Harris was given a Miranda warning by Agent Bassett and another officer who subsequently arrived on the scene. Harris told both officers he understood his rights. When asked why he ran, Harris responded he did not have a driver's license.

Agent Glass-Bradley testified that, about ten minutes after Harris was arrested, he and a few other officers attempted to find the black package thrown from Harris' car near Exposition and Frederick. However, because the area had high grass and an abundance of trash, the officers were not able to find the package.

Harris exercised his right to remain silent and elected not to testify. The jury returned a unanimous verdict of guilty as charged. The trial court ordered a presentence investigation. Thereafter, Harris filed a pro se motion for post-verdict judgment of acquittal and a pro se motion for a new trial. The trial court considered the motions on March 12, 2018, and found the state had proven all elements of the offense beyond a reasonable doubt. The motions were denied, and the trial court sentenced Harris.

In sentencing Harris, the trial court complied with the factors in La. C. Cr. P. art. 894.1, and considered the trial testimony, Harris' criminal history, the likelihood that Harris would re-offend, and his need for correctional treatment. The trial court sentenced Harris to 3½ years at hard labor with credit for time served pursuant to an agreement between Harris and the Caddo Parish District Attorney's Office, whereby Harris could appeal his conviction, but not his sentence. The trial court advised Harris of the time delays to seek an appeal of his conviction and to seek post-conviction relief once his conviction and sentence became final. This appeal ensued.

DISCUSSION

On appeal, Harris argues the state failed to prove beyond a reasonable doubt that the officers had reasonable grounds to believe Harris committed an offense prior to the chase. Harris also argues the state failed to prove beyond a reasonable doubt that the agents were driving a marked police vehicle, as required for a conviction of aggravated flight from an officer.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010) ; State v. Hill , 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied , 07-1209 (La. 12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Lilly , supra ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 12-2658 (La. 5/17/13), 117 So.3d 918. The trier of fact is charged with weighing the credibility of this evidence and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder's conclusions. State v. Hill , 47,568 (La. App. 2 Cir. 9/26/12), 106 So.3d 617.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 12-2667 (La. 5/24/13), 116 So.3d 659 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299. The trier of fact is charged to make credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Woodard , 47,286 (La. App. 2 Cir. 10/3/12), 107 So.3d 70, writ denied , 12-2371 (La. 4/26/13), 112 So.3d 837.

La. R.S. 14:108.1 provides the following definitions regarding aggravated flight from an officer:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
* * * *
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.

Additionally, La. R.S. 32:295.1 outlines the reasonable grounds for a traffic stop:

A. (1) Each driver of a passenger car ... in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion.
* * * *
F. Probable cause for violation of this Section shall be based solely upon a law enforcement officer's clear and unobstructed view of a person not restrained as required by this Section. A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.

Reasonable Grounds for a Traffic Stop

All that is required for a law enforcement officer to have probable cause to initiate a traffic stop for a seatbelt violation is a clear and unobstructed view of a person in a vehicle who is not wearing his seatbelt while the car is in forward motion. Id. Here, Agents Bassett and Glass-Bradley testified they each clearly saw the driver of the Hyundai was not wearing a seatbelt. The officers had probable cause and, therefore, reasonable grounds to pull Harris over for a seatbelt violation. See State v. Hunt , 09-1589 (La. 12/1/09), 25 So.3d 746 ; see also State v. Evans , 48,489 (La. App. 2 Cir. 12/4/13), 130 So.3d 406.

Requirement of a Marked Police Vehicle

As stated above, a conviction under La. R.S. 14:108.1 requires the law enforcement officer pursuing a suspect in his police vehicle to first give a visual and audible signal to stop, and "the signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle ." Given the language of the law, it appears the legislature did not consider a vehicle equipped solely with emergency lights and a siren to be "marked as a police vehicle."

In State v. Williams , 46,674 (La. App. 2d Cir. 12/14/11), 81 So.3d 220, this Court stated, " La. R.S. 14:108.1 refers to the crime of flight from an officer, an offense not charged in these proceedings. The use of lights, siren, and a marked police unit are among the elements required for proof of the crime of flight from an officer." In Williams , the officer who attempted to stop Williams had conducted surveillance on Williams to discover evidence of suspected drug activity. Just prior to an alleged drug buy with a criminal informant, the pursuing officer witnessed Williams make a turn without engaging his turn signal. After the drug buy occurred, Williams saw the officer's unmarked police vehicle and fled; the officer pursued Williams, engaging his emergency lights. Williams was apprehended by the officer in the unmarked vehicle and ultimately charged with possession of cocaine, but he was not charged with flight from an officer.

In the unreported case State v. Meads , 07-848 (La. App. 3 Cir. 1/30/08), 2008 WL 241595, writ denied , 08-0681 (La. 10/10/08), 993 So.2d 1281, narcotics detectives came upon a vehicle containing two suspects parked in the wrong direction, partially obstructing the roadway. As the detectives blocked the vehicle, they observed the owner of the vehicle, a known drug offender, exit the passenger side of the vehicle; Meads was in the driver's seat. The detectives, wearing clothing clearly identifying themselves as sheriff's deputies, exited their unmarked van and approached the vehicle. Simultaneously, Meads reversed the vehicle at a high rate of speed and eventually came to a stop in a ditch. One of the officers approached the passenger side of the vehicle with his gun drawn and ordered Meads to exit the vehicle. A struggle ensued between the officer and Meads, and the officer's gun discharged. The bullet hit and killed a different officer. During a search of the vehicle incidental to arrest, officers discovered cocaine. Meads was charged with several counts, including one count of aggravated flight from an officer, but that charged was later dismissed pursuant to an Alford plea.

In an opinion from the Louisiana Attorney General ("AG"), the AG's office considers the role that an unmarked police vehicle plays in initiating a traffic stop. La. Atty. Gen. Op. No. 06-0319, 2006 WL 3898234. The AG opinion directly discusses La. R.S. 14:108.1(C) stating, "[I]t would be difficult, if not impossible, to obtain a conviction on someone who flees an unmarked police car under the current law."

Given that La. R.S. 14:108.1 expressly requires the use of a marked police vehicle, we must reverse Harris' conviction. The photos of the police car Agent Bassett was driving show the front, rear and both sides of the vehicle. There is no marking on the car itself which states it is a police vehicle. Under La. R.S. 14:108.1, a police vehicle being equipped with emergency lights and a siren is not sufficient in order to obtain a conviction; the vehicle must also be marked as a police vehicle. The vehicle Agent Bassett was driving had emergency lights, a siren, a spotlight, and MVS equipment. None of these items mark the vehicle as a police vehicle.

Additionally, jurisprudence involving an unmarked vehicle note the presence of marked vehicles being called for backup. Here, while other officers were on the scene when Harris was arrested, there is no testimony or video evidence that other officers, possibly in marked cars, participated in the pursuit of Harris. The requirements of La. R.S. 14:108.1 were not met in this case. Accordingly, Harris' conviction for aggravated flight from an officer is reversed.

CONCLUSION

For the foregoing reasons, Harris' conviction and sentence for aggravated flight from an officer are reversed.

CONVICTION AND SENTENCE REVERSED.

      There is no express waiver of sentencing delay on the record. The defendant makes no complaint regarding the absence of an express waiver on appeal. In State v. White , 404 So.2d 1202 (La. 1981), the court held that failure to expressly waive the sentencing delay in La. C. Cr. P. art. 873 is harmless if there was no prejudice to the defendant and the defendant does not raise any complaint about it.