source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Raydell DUHE, Sr. v. DCR INDUSTRIAL SERVICES, INC.
    NO. 2018 CA 0581
    Court of Appeal of Louisiana, First Circuit.
    December 6, 2018
    JAMES "BRAD" DILL, JAMES F. SCOTT, III, METAIRIE, LA, ATTORNEYS FOR PLAINTIFF-APPELLEE RAYDELL DUHE, SR.
    SCOTT W. McQUAG, METAIRIE, LA, ATTORNEY FOR INTERVENOR-APPELLANT ROBERT A. LENTER
    SHERYL STORY, METAIRIE, LA, ATTORNEY FOR DEFENDANT-APPELLEE DCR INDUSTRIAL SERVICES, INC.
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

In this workers' compensation case, a discharged former attorney for the claimant appeals a judgment dismissing his intervention and motions to vacate or annul a settlement and granting his former client's reconventional demand. The former client answers the appeal, seeking attorney fees and costs for work done on appeal. For the reasons set forth herein, we affirm the judgment and deny the answer to the appeal.

FACTS AND PROCEDURAL HISTORY

Raydell Duhe, Sr. was injured in the course and scope of his employment as a pipefitter with DCR Industrial Services ("DCR") on August 27, 2013. Duhe hired attorney Robert A. Lenter to represent him in the workers' compensation matter. Duhe and Lenter executed a Contract of Representation on September 10, 2013, which provided for attorney fees of "20% of any 'instituted' indemnity, MSA, and/or settlement, plus any Court awarded Attorney's fees, plus any additional expenses of pursuing the claim." The contract also contained the following clause regarding withdrawal or dismissal of the attorney:

WITHDRAWAL BY EITHER ATTORNEY OR CLIENT: Either you or said attorneys can withdraw from your case by giving reasonable written notice to the other. Any withdrawal by said attorneys shall be consistent with the Louisiana Rules of Professional Conduct. In the event that you dismiss said attorneys you hereby give said attorneys a lien on your future recovery, if any, to secure payment of our costs and attorney fee shall be the agreed percentage of the last settlement offer obtained by said attorneys prior to dismissal or withdrawal. [Emphasis added].

Duhe began receiving indemnity benefits at the weekly rate of $605.00, effective August 27, 2013. His indemnity checks were sent directly to Lenter's office, and Lenter deducted his attorney fees before forwarding the remainder to Duhe. At some point, Duhe allegedly fired Lenter, but then rehired him based on an agreement that Lenter would only take ten percent for attorney fees from each indemnity check. On May 17, 2017, Lenter filed a Disputed Claim for Compensation on Duhe's behalf.

Dissatisfied with Lenter's representation, Duhe discharged Lenter as his attorney by certified mail on June 22, 2017, and then again by follow-up text on June 26, 2017. Around the same time, Duhe filed a complaint against Lenter with the Louisiana Attorney Disciplinary Board. Thereafter, on August 7, 2017, Lenter filed a Motion to Withdraw as Attorney of Record and a Petition of Intervention, seeking to establish a lien for his attorney fees. Lenter alleged in his intervention that since he provided "reasonable and necessary" services to Duhe in accordance with their Contract of Representation and was discharged without cause, he is entitled to statutory attorney fees as reasonable compensation for the legal services rendered. On August 8, 2017, the workers' compensation judge ("WCJ") granted Lenter's motion to withdraw as attorney of record and signed an order decreeing:

Lenter ... [is] entitled to make claim for statutory attorney fees as reasonable compensation for legal services rendered on behalf of [Duhe], pursuant to the State of Louisiana Worker's [sic] Compensation Act, if and when [Duhe] settles this claim or receives a judgment in this matter. This claim for attorney fees should act as a lien on the underlying claim, causing [Duhe] to resolve the issue of attorney fees owed to [Lenter] prior to collecting on a judgment or entering into a lump sum settlement in this matter.

Duhe hired new counsel, James F. Scott, III and James "Brad" Dill, of the law offices of Workers' Compensation, L.L.C., who enrolled as counsel of record on August 21, 2017. On December 1, 2017, a joint request was filed by Duhe, DCR, and DCR's insurance carrier, Valley Forge Insurance Company ("Valley Forge"), for approval of a lump sum settlement of the indemnity portion of Duhe's workers' compensation claim for $195,000.00. The joint request also stated:

Further, as part of this settlement agreement, the claimant, Raydell Duhe, Sr., has agreed to be responsible for any and all attorney fees incurred by any attorneys, including but not limited to any attorney lien which may be asserted by his prior attorney Robert Lenter.
...
The aforementioned [attorney] fee for which the claimant, Raydell Duhe, Sr., is responsible will be fixed at THIRTY-NINE THOUSAND AND NO/100 DOLLARS ($39,000.00) to be paid out of the proceeds of this settlement, pursuant to [La. R.S.] 23:1141.[ ]

This settlement agreement was approved by the WCJ on December 1, 2017, including the provision setting the attorney fees at $39,000.00, and the disputed claim for indemnity benefits was dismissed with prejudice. The WCJ also signed orders stating that Dill is entitled to a $39,000.00 attorney fee, to be paid out of the lump sum settlement of the indemnity claim, as well as a $2,420.00 attorney fee, in accordance with the terms of the contingency fee agreement, for the recovery of $12,100.00 in workers' compensation benefits for Duhe between July 18, 2017 and December 1, 2017.

On January 4, 2018, Lenter filed a motion requesting that the WCJ enforce the August 8, 2017 order acknowledging his lien for attorney fees and obligating Duhe to resolve the issue of Lenter's attorney fees prior to entering into a lump sum settlement. Lenter also asked the WCJ to vacate or recall its December 1, 2017 order approving Dill's attorney fees on the $195,000.00 settlement. Lenter alleged that the amount of his lien due to his representation of Duhe prior to the settlement was $64,460.21, representing twenty percent of the $322,301.05 in benefits paid to Duhe, subject to a credit for any attorney fees already paid to Lenter by Duhe. Additionally, Lenter alleged that he was entitled to seventy-five percent ($29,250.00) of the $39,000.00 attorney fees awarded on the $195,000.00 settlement, as Dill did little more than finalize a settlement offer, which was initially made by Lenter.

On January 19, 2018, Duhe and Workers' Compensation, L.L.C. filed a joint answer to Lenter's Petition of Intervention, and Duhe filed a reconventional demand against Lenter. In his reconventional demand, Duhe alleged that following Lenter's termination, four indemnity benefit checks were sent to Lenter's office erroneously, and Lenter deposited and retained the entire amounts, totaling $2,420.00, despite repeated requests for the money to be returned to Duhe. Duhe also claimed that Lenter refused to return his case file, despite numerous requests. Duhe and Workers' Compensation, L.L.C. alleged that the maximum attorney fees payable on the $195,000.00 indemnity-only settlement was $39,000.00, and that any attorney fees to which Lenter may be entitled as a result of the settlement must be based on quantum meruit and must be reduced by the $2,420.00 still owed to Duhe. In his reconventional demand, Duhe alleged that in the event the WCJ determined that Lenter was not entitled to any attorney fees on the settlement, Lenter owes Duhe $2,420.00, plus interest, for the above-referenced erroneously withheld indemnity benefits.

A hearing was held on Lenter's intervention and Duhe's reconventional demand on January 24, 2018. At the hearing, Lenter testified that pursuant to their agreement, he took his attorney fees directly out of Duhe's weekly indemnity benefit checks, and he forwarded the remainder to Duhe. Although he initially deducted his entire twenty percent attorney fees from each check, he testified that Duhe needed more money to live on, so he agreed that he would only deduct ten percent from each weekly check and would collect the remaining ten percent when the case was settled. Lenter's testimony about the amount of his claim for the remaining unpaid fee was unclear. Lenter initially testified that the remaining uncollected attorney fees on the indemnity benefits was $7,744.00; however, he later testified that the attorney fees due after giving Duhe credit for fees already paid was $56,560.00; and in an exhibit prepared by Lenter, he calculated his uncollected attorney fees on the indemnity benefits as $15,972.00. Lenter further testified that he had negotiated a $195,000.00 settlement offer for Duhe's claim in January 2017, but Duhe wanted more money, so the offer was not accepted. Since Duhe later settled his claim for $195,000.00, which was the amount of the offer negotiated by Lenter, Lenter claimed that he should be entitled to the majority of the attorney fees on that settlement.

Although he acknowledged that he was discharged by Duhe in late June 2017, Lenter contended that he continued representing Duhe for some time after that termination, because Duhe changed his mind and rehired him when Lenter began "helping him with [obtaining] his narcotics." Lenter claimed that he actually continued representing Duhe until "sometime in July" when he learned that Duhe had filed a complaint against him with the Louisiana Attorney Disciplinary Board. Lenter admitted that he had no documentation to prove that Duhe rehired him, but he testified that "[t]he documentation comes from the work that I did for him afterwards. If he had not asked me to continue, I would not have spent days getting him his narcotics and gotten him all that." Lenter testified that he did not know that Duhe hired new counsel, and did not learn, until the end of December 2017, that Duhe's claim for indemnity benefits had been settled and an award for attorney fees approved without his knowledge or involvement.

Regarding Duhe's claim for reduction of any attorney fees due to Lenter and his reconventional demand for the unpaid indemnity benefits, Lenter testified that he hand-wrote and personally delivered two checks to Duhe for $605.00 each in the summer of 2017, but that he withheld the remaining $1,210.00 to cover his unpaid attorney fees. Lenter also testified that in January 2018, on advice of his own counsel, he sent Duhe the remaining two checks for $605.00. However, Lenter produced no evidence of these payments at the hearing, stating that all of his files, including his bank records which would prove these payments, were outside in his car.

Duhe testified that he fired Lenter for cause in June 2017, after having numerous problems with him over the years. Duhe often had trouble getting in touch with Lenter by phone or in person and explained that even when he was able to get an appointment to see Lenter, the appointment was usually cancelled. When he needed assistance finding an approved doctor or getting his prescriptions covered by the workers' compensation insurer, Duhe testified that Lenter told him to handle it himself and said that he was "supposed to suffer" while he was on workers' compensation. Duhe also had trouble obtaining his weekly indemnity benefits from Lenter. Duhe testified that his checks from Lenter were almost always late. Although Lenter blamed the postal service for the lost or delayed checks, Duhe believed that Lenter was either mailing the checks late or not mailing them at all. At some point, Duhe began driving from his home in Kentwood to Lenter's office on Canal Street in New Orleans each week to pick up his checks to eliminate the delay. However, on several occasions, he received checks from Lenter for his indemnity benefits that were not honored by the bank due to insufficient funds in Lenter's account.

Duhe also became concerned when he received letters stating that a judgment had been taken against him as a result of a loan Lenter had obtained to finance Duhe's claim. Duhe denied being aware of the loan or receiving any of the funds from the loan, which he believed was for "$1,800 or $2,500." However, he testified that "[m]y name was on there. He borrowed it, you know, I guess on my settlement.... [a]nd that worried me. So I called and tried to get in touch with him because the bank -- the court ruled against us pursuing me and him. And I interpreted as they wanted me to pay. So I called him and he said don't worry about it. But they sent me quite a few letters." Duhe also testified that he was skeptical about Lenter's statements to him regarding the settlement offers he was receiving from Valley Forge for his claim. According to Duhe, the amounts of the alleged settlement offers changed dramatically each time he spoke to Lenter, and Duhe believed something was not right. He testified that "it was just too crazy. I was scared. I didn't think he was telling me the truth." Ultimately, Duhe discharged Lenter, hired new counsel, and filed a complaint against Lenter with the Louisiana Attorney Disciplinary Board.

Duhe denied Lenter's allegation that he agreed to rehire him after firing him in June 2017, although he admitted that he had rehired Lenter after firing him a few years earlier. In fact, Duhe testified that after he finally discharged Lenter in June 2017, Lenter "didn't want to stop," so Duhe called the insurance company to inform them that Lenter no longer represented him and instructed them not to discuss his claim with Lenter anymore.

Duhe testified that after being terminated in June 2017, Lenter would not answer his texts, withheld indemnity benefits that he continued to receive for Duhe, and refused to turn over Duhe's case file. Despite making numerous requests for the four weeks of withheld indemnity benefits, Duhe testified that the only two checks he received from Lenter after firing him were the ones sent to him in January 2018 after the reconventional demand was filed, and that the other two checks, totaling $1,210.00, were still outstanding. Duhe disputed Lenter's testimony that he personally delivered the other two checks to Duhe, stating that he did not see Lenter again after firing him. Duhe also testified that he made numerous requests to Lenter for his case file, but that he never received it. Duhe drove to Lenter's office in New Orleans twice to pick up his file, but testified that the office looked abandoned, and he was told that his file could not be located.

Sheryl Story, counsel for DCR and Valley Forge, testified regarding her knowledge of Lenter's efforts to settle Duhe's claim. According to Story, both she and another attorney in her office, George Escher, communicated with Lenter regarding Duhe's claim. When asked about Lenter's assertion that he had negotiated a settlement offer for Duhe of $195,000.00, Story recalled that Lenter made a demand to settle the indemnity portion of the claim for $195,000.00 in June 2016, but she denied that her client made any offer at all to settle at that time.

Dill testified about the work he performed to settle the indemnity portion of Duhe's claim once he took over the case. Since Lenter would not return Duhe's case file, Dill testified that he had to attempt to recreate the file through discovery. Through his efforts, Dill was able to obtain approximately 2,300 pages of medical records. He set up a pretrial mediation conference and had a trial date set, and ultimately, he was able to settle the indemnity portion of Duhe's claim for $195,000.00. Dill testified that he also spoke to or met with Duhe regularly, made sure Duhe received his indemnity benefits timely prior to the settlement, and took steps to preserve Duhe's social security disability benefits.

After the hearing, the WCJ concluded that Lenter was not entitled to any further attorney fees or payment of any type and rendered judgment on February 9, 2018, dismissing Lenter's intervention and motions with prejudice and authorizing the release of the $39,000.00 attorney fees on the settlement to Workers' Compensation, L.L.C. The WCJ also granted Duhe's reconventional demand, ordering Lenter to repay the remaining $1,210.00 in indemnity benefits owed to Duhe.

Lenter appealed the February 9, 2018 judgment, arguing that the WCJ erred in: approving the compromise of Duhe's claim despite the order recognizing his claim for attorney fees; denying his motions to enforce the August 8, 2017 order and recall the December 1, 2017 order approving Dill's attorney fees; failing to vacate and nullify the order approving the settlement; and refusing to award any attorney fees to Lenter in the February 9, 2018 judgment. Duhe answered the appeal, requesting costs and attorney fees for work done on appeal.

DISCUSSION

Lenter argues that the WCJ erred in disregarding the August 8, 2017 order when it approved the lump sum settlement, and thereafter, erred when it refused to enforce the order and recall the approval of attorney fees for Dill. The August 8, 2017 order was interlocutory in nature, and it is well-settled that prior to final judgment a judge may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous. VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 5 (La. 11/28/01), 801 So.2d 331, 334.

Louisiana Revised Statutes 37:218, which governs attorney fee agreements, provides:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
B. The term "fee", as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.
[Emphasis added].

Lenter argues that after the claim was settled without his written consent, in violation of La. R.S. 37:218(A), the WCJ further erred in failing to impose the remedy called for in Subsection A and vacate or nullify the December 1, 2017 orders approving the lump sum settlement and attorney fees. However, despite the provision in Subsection A whereby a settlement entered into without the consent of the attorney is null and void, the Louisiana Supreme Court has interpreted La. R.S. 37:218 in such a way as not to conflict with the client's absolute right to discharge his attorney, with or without cause, or with the prohibition against an attorney acquiring an ownership interest in a client's claim before the attorney has rendered all the legal services. See Saucier v. Hayes Dairy Prod., Inc., 373 So.2d 102, 105 (La. 1978) (on rehearing); Calk v. Highland Const. & Mfg., 376 So.2d 495, 499 (La. 1979) ; Scott v. Kemper Ins. Co., 377 So.2d 66, 69-71 (La. 1979). Thus, La. R.S. 37:218 creates only a privilege in favor of the dismissed attorney, not an ownership right to future proceeds, and the dismissed attorney cannot nullify his former client's settlement or control the litigation in any manner. Gegenheimer v. Cajun Painting, Inc., 96-452, pp. 8-9 (La. App. 3 Cir. 10/9/96), 689 So.2d 457, 461. Thus, although Lenter is entitled to make a claim for his attorney fees and has a privilege on any settlement proceeds for payment of his fees, he is not entitled to control the litigation or "recall," vacate, or nullify the settlement. Thus, the WCJ did not err.

Lenter also argues that the WCJ erred in finding that he "is not entitled to any further attorney fee or payment of any type," and dismissing his intervention. The Louisiana Supreme Court has outlined a specific process for determining the appropriate measure of attorney fees under contingency fee contracts which have been terminated before completion of the representation. This process is dependent upon whether the attorney has been terminated with or without cause. O'Rourke v. Cairns, 95-3054 at pp. 7-8 (La. 11/25/96), 683 So.2d 697, 702.

When an attorney retained under a contingency fee contract is prematurely discharged without cause, the attorney fees are to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts which he executed, and that fee should in turn be allocated between or among the various attorneys involved in handling the claim on the basis of the following factors, which are codified in Rule 1.5(A) of the Louisiana Rules of Professional Conduct :

(1) The time and labor involved, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

O'Rourke, 95-3054 at p. 7, 683 So.2d at 702, n.12.

However, when an attorney retained under a contingency fee contract is prematurely discharged for cause , the trial court should first determine the amount of and allocate the attorney fees using the same method used when the attorney is discharged without cause, and thereafter, the court should consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel otherwise would receive after the allocation based on the factors set forth above. O'Rourke, 95-3054 at pp. 10-11, 683 So.2d at 704.

In holding that Lenter was not entitled to any additional attorney fees or payment, the WCJ clearly determined that Lenter was discharged for cause. The determination of whether an attorney was discharged with or without cause is a factual determination that will not be disturbed on appeal absent a finding of manifest error. O'Rourke, 95-3054 at p. 9, 683 So.2d at 703. Based on the evidence before the WCJ as to Duhe's reasons for discharging Lenter (lack of communication, late payment of benefits, receipt of NSF checks from Lenter, receipt of notice of judgment taken against him on a loan, and uncertainty regarding fluctuating settlement offers), we cannot say that the WCJ's finding that Lenter was terminated for cause was manifestly erroneous.

The $39,000.00 attorney fees approved by the WCJ on the $195,000.00 settlement is the maximum allowable attorney fees under La. R.S. 23:1141(B). Thus, to determine what portion, if any, of this $39,000.00 fee Lenter is entitled to receive, the WCJ must first allocate the fee among the attorneys involved according to the method set forth above and, thereafter, consider the nature and gravity of the cause which contributed to the dismissal and reduce Lenter's portion thereby.

Lenter asserts that he did all of the work to get Duhe's claim to settlement, and that Dill simply came in and finalized the settlement deal that Lenter "was clearly instrumental in developing." The testimony and evidence presented at the hearing revealed that Lenter did attempt to settle the indemnity portion of Duhe's claim; however, Lenter was unable to accomplish this, despite the fact that he represented him for almost four years. In June 2016, Lenter emailed a settlement demand to counsel for DCR and Valley Forge to settle the indemnity portion of the claim for $195,000.00; however, no settlement offer was made by DCR and Valley Forge in response to Lenter's demand. Thereafter, in January 2017, Lenter emailed a settlement demand to counsel for DCR and Valley Forge demanding $356,000.00. Counsel for Valley Forge responded to the email, pointing out that Lenter's last settlement demand had been $195,000.00, but no settlement offer was made in response to Lenter's demand. Although Story testified that she believed that an offer to settle was communicated to Lenter at some point while he represented Duhe, she was certain that it was not for as much as $195,000.00 or $356,000.00.

Lenter filed a document entitled "Hourly Times (sic) Sheet" into evidence at the hearing, which consisted of a vague listing of dates and short notes and indicated that Lenter spent 174 "Billable Hours" on Duhe's case. Nevertheless, despite any work which may have been done by Lenter to move the matter towards settlement, once he was terminated by Duhe, Lenter failed to turn over Duhe's file after numerous requests to do so and despite the fact that Duhe travelled to his office twice to pick up the file. His failure to turn over Duhe's file resulted in Duhe's new counsel having to recreate the entire file through discovery, including over two thousand pages of medical records, in order to proceed with the claim. After recreating the file to the extent possible, Dill scheduled a pretrial conference and trial date and, ultimately, settled the indemnity portion of the claim to Duhe's satisfaction.

Based on the evidence before the court, we cannot say that the WCJ's conclusion that Lenter was not entitled to any portion of the $39,000.00 attorney fees on the lump sum settlement was manifestly erroneous. Furthermore, although Lenter claimed that he was still owed the unpaid portion of his twenty percent attorney fees on indemnity benefits obtained for Duhe during his representation, he did not provide credible evidence of the amount owed. Lenter filed a document in evidence at the hearing, which was simply a typewritten summary of his calculations, claiming that the outstanding balance of his attorney fees on indemnity benefits collected during his representation was $7,744.00. However, later in his testimony, he claimed to be owed $56,560.00 in attorney fees. Lenter testified that his calculation of the $56,560.00 fee was based on twenty percent of all benefits (both medical and indemnity) paid on Duhe's behalf throughout the entire claim (totaling $322,301.05), both before and after Lenter was terminated, with a credit for the $7,744.00 in fees he claimed to have already received. This testimony was contradicted by Lenter's exhibit showing his typewritten calculations, which showed that Lenter had received $15,972.00 in attorney fees during his representation of Duhe. Based on the lack of credible evidence to support Lenter's claim for attorney fees owed, we cannot say that the WCJ's conclusion that Lenter did not prove entitlement to any additional fees was manifestly erroneous.

Similarly, with regard to Duhe's reconventional demand, Lenter admitted to withholding Duhe's indemnity payments after his termination; however, he claimed that he repaid all of the withheld indemnity benefits to Duhe eventually (half in the summer of 2017 and half in January 2018 after the reconventional demand was filed). Again, Lenter claimed that his proof of the repayment was outside in his car; and Duhe disputed this testimony, alleging that he was still owed $1,210.00. As trier of fact, the WCJ is free to accept or reject, in whole or in part, the testimony of any witness. State v. Lutz, 17-0425, p. 18 (La. App. 1 Cir. 11/1/17), 235 So.3d 1114, 1126, writ denied, 17-2011 (La. 8/31/18), 251 So.3d 411. We cannot say that the WCJ's conclusion that Lenter did not prove repayment of the withheld indemnity benefits is manifestly erroneous or clearly wrong.

Finally, although Duhe filed an answer to the appeal requesting attorney fees for work performed on the appeal, he did not brief this issue, either in his answer to the appeal or in his appellate brief. Duhe's answer to the appeal contains no assignments of error and simply states: "[P]ursuant to Louisiana Code of Civil Procedure Article 2133, [Duhe] requests that this Honorable Court award claimant-appellee his costs, including attorney's fees, incurred in opposing the appeal of the intervener-appellant herein." His appellate brief likewise does not address the answer to the appeal. Accordingly, this issue has been abandoned because Duhe did not brief his answer to the appeal with argument or citation of authority to support his assertion. Under U.R.C.A. 2-12.4(B)(4), this court may consider as abandoned any assignment of error that has not been briefed. State v. Wilson, 13-996, pp. 8-9 (La. App. 5 Cir. 5/21/14), 142 So.3d 275, 279-80. Because Duhe has failed to brief his answer to the appeal requesting costs and attorney fees, we consider it abandoned.

CONCLUSION

For the reasons set forth herein, we affirm the February 9, 2018 judgment dismissing Robert A. Lenter's intervention and motions with prejudice and granting Raydell Duhe, Sr.'s reconventional demand ordering Lenter to repay Duhe $1,210.00, and deny Duhe's answer to the appeal seeking costs and attorney fees for work done on appeal. Costs of this appeal are assessed to the intervenor-appellant, Robert A. Lenter.

AFFIRMED; ANSWER TO APPEAL DENIED.

      Louisiana Revised Statutes 23:1141 provides:
      A. Claims of attorneys for legal services arising under this Chapter shall not be enforceable unless reviewed and approved by a workers' compensation judge. If so approved, such claims shall have a privilege upon the compensation payable or awarded, but shall be paid therefrom only in the manner fixed by the workers' compensation judge. No privilege shall exist or be approved by a workers' compensation judge on injury benefits as provided in R.S. 23:1221(4)(s).
      B. The fees of an attorney who renders service for an employee coming under this Chapter shall not exceed twenty percent of the amount recovered.

      The amount of $322,301.05 is the total of all indemnity benefits and all medical benefits paid on Duhe's claim prior to the December 1, 2017 settlement, including the benefits paid after Lenter was terminated.

      Following the filing of the reconventional demand, Lenter sent Duhe two checks for $605.00 each, leaving a remaining unpaid balance of $1,210.00.

      In the earlier instance, Duhe testified that he agreed to rehire Lenter based upon an agreement to reduce the attorney fees deducted from his indemnity benefits to ten percent.

      Lenter acknowledged that he never produced Duhe's file as requested on numerous occasions. He described the file as containing over 2,000 pages, and explained that he had been ill, he had no secretary, his office was in "total disarray," and the file was "in two, possibly three different places." As a result, he testified that "it took quite awhile [sic] to put everything together to make sure I had the majority of my documents from Mr. Duhe's file together." Lenter also attempted to justify his failure to produce the file by pointing out that Dill was able to reconstruct the majority of the file. Nevertheless, he claimed that the file was outside in his car, and he would give it to Dill after the hearing.

      The final judgment signed by the WCJ on February 9, 2018, contains a handwritten notation, initialed by the WO, that "Duhe's post trial (sic) adopted as reasons for judgment." The Post-Trial Memorandum filed on behalf of Duhe and Workers' Compensation, L.L.C. submits that Lenter was terminated for cause.


author: McCLENDON, J.

text:
    TOUR HOLDINGS, L.L.C. v. Frank S. LARRE (a/k/a Frank J. Larre ), Southern Trace Investments, Inc., Thomas P. Reeves, Jerri Gross Reeves, J P Morgan Chase Bank, N.A., Tania O. Paz, First Franklin Financial Corporation, and Their Successors, Heirs, and Assigns
    2018 CA 0503
    Court of Appeal of Louisiana, First Circuit.
    December 06, 2018
    Jonathan R. Fleming, Covington, Louisiana, Counsel for Plaintiff/Appellee Tour Holdings, L.L.C.
    Jane Faia Mentz, New Orleans, Louisiana, Counsel for Defendant/Appellant Tania O. Paz
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

A tax debtor seeks review of a judgment confirming and quieting a tax title, asserting that she was not properly served with the underlying petition. Finding that the debtor's remedy under the circumstances is to file a petition for nullity with the trial court, we dismiss the instant appeal.

FACTS AND PROCEDURAL HISTORY

This dispute concerns the confirmation and quieting of tax titles obtained by Tour Holdings, L.L.C. Among the confirmed titles was a property in Mandeville, which was previously owned by Tania O. Paz, a tax debtor. In its petition to quiet the tax title filed on May 30, 2017, Tour Holdings, L.L.C. indicated that Ms. Paz was "either located out of state or [her] whereabouts are unknown." A curator ad hoc was appointed to represent Ms. Paz in the proceedings, which resulted in a judgment rendered on October 26, 2017, that confirmed Tour Holdings, L.L.C.'s title to the Mandeville property.

After the judgment was rendered against her, Ms. Paz filed the instant appeal, asserting that the judgment in favor of Tour Holdings, L.L.C. was absolutely null because she was not served with notice of the petition as required for a valid judgment under LSA-C.C.P. art. 1201. She further contends that appointment of a curator ad hoc was not authorized under LSA-R.S. 47:2266 and that any attempt to complete service on Ms. Paz by serving the curator was improper and ineffective.

DISCUSSION

Absent an express waiver, citation and service thereof are essential in all civil actions. LSA-C.C.P. art. 1201. Under Louisiana law, a petition and citation for quieting tax title must be served on the defendant as in ordinary suits. LSA-R.S. 47:2266(A)(2). If a tax sale party is a nonresident of the state, is unknown, or his residence is unknown, the court shall appoint a curator ad hoc to represent him and receive service. Id.

On appeal, Ms. Paz asserts that before a curator can be appointed to represent her, as authorized by LSA-R.S. 47:2226(A)(2), Tour Holdings, L.L.C. was required to make a reasonable and diligent effort to determine her whereabouts. See Security Homestead Ass'n v. Fuselier, 591 So.2d 335, 339 (La. 1991). Ms. Paz notes that she was never served with the original petition and citation. Ms. Paz also states that she resides at 3605 Connecticut Avenue, Kenner, Louisiana 70065. Ms. Paz contends that because she is a Louisiana resident, Tour Holdings, L.L.C.'s request for a curator implies that Ms. Paz's address was unknown and unable to be learned after a diligent search.

Ms. Paz contends that there is evidence to support the conclusion that Mr. Joseph Todd Tournillon, member, apparent manager, and registered agent for service of process of Tour Holdings, L.L.C., knew or had learned of Ms. Paz's location before the "Petition to Quiet Tax Titles" was filed on May 30, 2017. Ms. Paz avers that her address was obtainable from a simple internet search of her name. Additionally, Ms. Paz asserts that Mr. Tournillon was in contact with her and communicated with her by telephone on several occasions. Ms. Paz avers that considering the foregoing, it is reasonable to conclude that no search, much less a diligent one, was ever made to determine her address. Ms. Paz asserts that because she was not properly served with process as required by law, the judgment quieting the tax title is an absolute nullity. See LSA-C.C.P. arts. 1201 and 2002(A)(2) and Tunnard v. Simply Southern Homes, L.L.C., 07-0945 (La.App. 1 Cir. 3/26/08), 985 So.2d 166, 168.

In opposition, Tour Holdings, L.L.C. maintains that nothing raised in Ms. Paz's assignments of error was submitted to the trial court. Rather, all issues relevant to her assignments of error are being presented to this court as a matter of first impression. Because these issues were not presented, Tour Holdings, L.L.C. notes that the appellate record is devoid of any evidence that could support or refute Ms. Paz's claims.

The nullity of a final judgment may be demanded for vices of either form or substance. LSA-C.C.P. art. 2001. A final judgment shall be annulled if rendered against a defendant who has not been served with process as required by law. LSA-C.C.P. art. 2002(A)(2).

Generally, the question of sufficiency of service should not be raised for the first time on appeal, but rather should be raised in a suit to annul the judgment. Corte v. Cash Technologies, Inc., 02-0846 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162, 1166 and Hughes v. Sanders, 36,968 (La.App. 2 Cir. 5/14/03), 847 So.2d 165, 167. The justification for requiring a separate suit is so that a hearing can be held to ascertain facts regarding whether defendants were properly served. Corte, 843 So.2d at 1166.

In Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2 Cir.), writ denied, 468 So.2d 1211 (La. 1985), the appellate court dismissed an appeal where the record was insufficient to determine whether a defendant was properly served through the long-arm statute, reasoning as follows:

In the instant case, the record does not contain ... a glaring discrepancy. The copy of the petition and citation sent to defendant by certified mail was returned "unclaimed." Although plaintiff argues that this is tantamount to refusal, the record is insufficient to make this determination.
It appears that the practical effect behind requiring that the defendant bring an action to annul the judgment is to permit the introduction of additional evidence as to the mode and execution of service of process. It is clear that additional evidence is essential in the instant case in order to ascertain whether the alleged failure to claim the letter was in fact a refusal or avoidance of service and the proper remedy for the defendant is by way of a suit for nullity. [Footnote omitted.]

Decca Leasing Corp., 465 So.2d at 914.

As noted by Tour Holdings, L.L.C., our record does not contain any evidence to address the merits of Ms. Paz's claims. Also, an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Hazey v. McCown, 01-0929 (La.App. 1 Cir. 5/10/02), 818 So.2d 932, 936. Moreover, argument of counsel, no matter how artful, is not evidence. Rising Resources Control, Inc. v. KIE Commodities and Finance, L.L.C., 11-1026 (La.App. 1 Cir. 12/21/11), 80 So.3d 1217, 1220, writ denied, 12-0658 (La. 4/27/12), 86 So.3d 632.

There is simply nothing in our record that allows us to address the merits of Ms. Paz's assignments of error on appeal. Her proper remedy is to file a suit for nullity in the trial court.

CONCLUSION

For the foregoing reasons, we dismiss Ms. Paz's appeal. Costs of this appeal are assessed to defendant/appellant, Tania O. Paz.

APPEAL DISMISSED.

      Louisiana Code of Civil Procedure article 1201 provides:
      A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null.
      B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
      C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.
      D. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Article, notwithstanding insufficient or erroneous service.

      By contrast, Tour Holdings, L.L.C. contends that it did not know Ms. Paz's whereabouts at the time it filed its suit. Tour Holdings, L.L.C. asserts that it performed a diligent search of the public records of St. Tammany Parish, and performed two internet-based searches in an attempt to locate her. Moreover, Tour Holdings, L.L.C. maintains that it published a legal notice in the official publication for St. Tammany Parish, the St. Tammany Farmer, which named Ms. Paz, described the property, and informed her of her rights with respect to this matter. Tour Holdings, L.L.C. avers that this notice likewise went unanswered. Tour Holdings, L.L.C. contends that its inability to reach Ms. Paz at her addresses of record resulted in the need to appoint a curator ad hoc to accept service and stand in representation of Ms. Paz.


author: Judge Terri F. Love

text:
    Carl EDGEFIELD v. AUDUBON NATURE INSTITUTE, INC., Audubon Commission and Scottsdale Insurance Company
    NO. 2017-CA-1050
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2019
    Darryl J. Carimi, CARIMI LAW FIRM, 1 Hummingbird Road, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT, CARL EDGEFIELD
    John W. Ellinghausen, Aaron M. Maples, KINNEY, ELLINGHAUSEN & DESHAZO, 1250 Poydras Street, Suite 2450, New Orleans, LA 70113, COUNSEL FOR DEFENDANTS/APPELLEES, AUDUBON COMMISSION, AUDUBON NATURE INSTITUTE, INC., AND SCOTTSDALE INSURANCE COMPANY
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Terri F. Love

This appeal arose from a remand from the Louisiana Supreme Court. Plaintiff alleged that he sustained serious bodily injuries as a result of a slip and fall on grease while delivering seafood at defendants' restaurant premises. After almost twelve years of litigation, the defendants filed a motion for summary judgment contending that the plaintiff had no evidence to support his claims other than his self-serving testimony. The trial court granted the motion for summary judgment and dismissed his claims. Plaintiff filed a motion for new trial, averring that newly discovered evidence was not previously available. The trial court denied the motion for new trial.

On appeal, we found that plaintiff only sought review of the denial of the motion for new trial, converted the appeal to a writ, and denied writs. The Louisiana Supreme Court found that we erred by not reviewing the motion for summary judgment and remanded the matter for consideration of the summary judgment on the merits.

Plaintiff contends that the trial court erred by granting the defendants' motion for summary judgment because his testimony was sufficient to create genuine issues of material fact for trial.

We find that plaintiff failed to demonstrate factual support to create genuine issues of material fact once the defendants met their burden on a summary judgment. Therefore, the trial court did not err by granting the motion for summary judgment. We also find that the trial court did not abuse its discretion by denying plaintiff's motion for new trial, as the evidence was not "newly discovered." The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Carl Edgefield was employed by New Orleans Gulf Seafood ("NOGS") as a delivery man in December 2004, when he allegedly slipped and fell on grease while delivering seafood to the Audubon Golf Clubhouse ("Clubhouse"). As a result, Mr. Edgefield alleged that he sustained serious injuries to his back. Mr. Edgefield filed a Petition for Damages on December 22, 2005, against Audubon Nature Institute, Inc.; Audubon Commission; and Scottsdale Insurance Company (collectively hereinafter "Defendants").

In 2009, the Louisiana Restaurant Association Self Insurer's Fund and NOGS filed a Petition of Intervention seeking subrogation for $ 80,293.52 paid to Mr. Edgefield in workers' compensation benefits. In 2015, Mr. Edgefield hired new representation and his previous counsel also filed a Petition of Intervention. Subsequently, in 2016, Mr. Edgefield's new representation withdrew and filed a Motion for Summary Judgment for expenses.

In 2017, Defendants filed a Motion for Summary Judgment contending that no genuine issues of material fact existed because Mr. Edgefield lacked factual support for his claim. The trial court conducted a hearing and granted Defendants' Motion for Summary Judgment, dismissing Mr. Edgefield's Petition with prejudice. Both Petitions for Intervention were also dismissed with prejudice. Eight days after the trial court's ruling on the Motion for Summary Judgment, Mr. Edgefield filed a Motion for New Trial alleging that he possessed newly discovered evidence; namely, he found 1) one of the Audubon employees that allegedly helped him stand up after the fall, 2) the plans for the Clubhouse, and 3) an expert report. The trial court denied the Motion for New Trial. Mr. Edgefield's Petition for Devolutive Appeal followed.

In Mr. Edgefield's first appeal, Edgefield v. Audubon Nature Inst., Inc. , 17-1050 (La. App. 4 Cir. 9/12/18), --- So. 3d ----, 2018 WL 4403983, we found that Mr. Edgefield only appealed the Motion for New Trial. As the denial of a Motion for New Trial is a non-appealable, interlocutory judgment, we exercised our discretion and converted the appeal to an application for supervisory review. Id. , 17-1050, p. 3, --- So. 3d at ----, 2018 WL 4403983, *1. Ultimately, we determined that the trial court did not abuse its discretion by denying Mr. Edgefield's Motion for New Trial. Id. , 17-1050, p. 7, --- So. 3d at ----, 2018 WL 4403983, *3. Mr. Edgefield sought review with the Louisiana Supreme Court. The Supreme Court granted writs, vacated our previous opinion, and remanded the matter for consideration of the appeal on the merits, finding that Mr. Edgefield intended to appeal the trial court's granting of Defendants' Motion for Summary Judgment. Edgefield v. Audubon Nature Inst., Inc. , 18-1782 (La. 1/18/19), 261 So.3d 776.

On remand, Mr. Edgefield asserts that the trial court erred by granting Defendants' Motion for Summary Judgment because 1) the trial court "ignored" Mr. Edgefield's testimony that the grease created an unreasonable risk of harm, 2) the trial court "ignored" Mr. Edgefield's testimony about his fall, 3) the trial court "ignored" Lucinda Greenwood's testimony about how the Clubhouse employees worked to keep the area around the grease trap clean, and 4) the trial court failed to consider the affidavit of a Clubhouse employee on the Motion for New Trial.

SUMMARY JUDGMENT

A motion for summary judgment "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[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. C.C.P. art. 966(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4).

Ordinarily, "[t]he burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). However, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense." Id. Instead, he must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. The burden then shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

"In determining whether summary judgment is appropriate, appellate courts review the evidence de novo ." Hebert v. St. Paul Fire & Marine Ins. Co. , 99-0333, p. 3 (La. App. 4 Cir. 2/23/00), 757 So.2d 814, 815. The de novo process requires this Court to utilize "the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Champagne v. Ward , 03-3211, p. 4 (La. 1/19/05), 893 So.2d 773, 776.

The Louisiana Supreme Court stated "that a 'genuine issue' is a 'triable issue,' an issue in which reasonable persons could disagree." Id. , 03-3211, p. 5, 893 So.2d at 777, quoting Jones v. Estate of Santiago , 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. "In determining whether an issue is 'genuine,' courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751, quoting Simon v. Fasig-Tipton Co. of New York , 524 So.2d 788, 791 (La. App. 3rd Cir. 1988). Summary judgment is rarely "appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, this court acknowledged ... that 'summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.' " Jones , 03-1424, p. 6, 870 So.2d at 1006, quoting Smith , 93-2512, p. 28, 639 So.2d at 751.

Likewise, the Louisiana Supreme Court summarized what constitutes a material fact as follows:

A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Penalber v. Blount , 550 So.2d 577, 583 (La.1989). "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." South Louisiana Bank v. Williams , 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied , 596 So.2d 211 (La.1992). Simply put, a "material" fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder , 626 So.2d 345, 352 (La.1993) ; Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co. , 427 So.2d 1152, 1153-54 (La. 1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc. , 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied , 457 So.2d 1194 (La.1984) (noting that "[s]ummary judgment may not be used as a substitute for trial").

Smith , 93-2512, p. 27, 639 So.2d at 751.

Mr. Edgefield asserts that his testimony sufficiently defeated Defendants' Motion for Summary Judgment. We disagree.

Louisiana Merchant Liability Law provides that Audubon owed a duty "to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition." La. R.S. 9:2800.6(A). See also Davis v. Cheema, Inc. , 14-1316, p. 7 (La. App. 4 Cir. 5/22/15), 171 So.3d 984, 988. "This duty 'includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.' " Davis , 14-1316, pp. 7-8, 171 So.3d at 988, quoting La. R.S. 9:2800.6(A). To prevail against a merchant like Audubon, Mr. Edgefield has the burden of proving that: 1) "[t]he condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable"; 2) "[t]he merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence"; and 3) "[t]he merchant failed to exercise reasonable care." La. R.S. 9:2800.6.

Defendants' Motion for Summary Judgment contended that Mr. Edgefield lacked "evidence demonstrating the existence of an unreasonably dangerous condition." In support of the motion, Defendants attached excerpts from Mr. Edgefield's deposition, which revealed that he was delivering shrimp to the Clubhouse before noon and slipped on the steps on his second trip into the Clubhouse. While he was unaware if anyone witnessed his fall, he contended that two Audubon employees helped him to his feet. These men also assisted Mr. Edgefield by placing the shrimp back in the box after the shrimp spilled onto the ground. Mr. Edgefield testified that he did not notice anything on the step that day and that it was not raining. However, Mr. Edgefield averred that there was oil on the cement. He was not sure what type of oil it was, but guessed that it was oil from the grease trap. In responses to interrogatories, Mr. Edgefield stated: "As I was sitting there I saw the grease trap drain and the oil or grease on the concrete. It is on the walk right before you get to the steps. I must have stepped in it and that's why I believe my foot slipped." He also alleged to have telephoned his employer from Audubon's kitchen to report the fall.

Lucinda Greenwood, the Clubhouse kitchen supervisor, testified in her deposition that the fryers in the Clubhouse kitchen were constructed with faucets on the sides for draining the grease. She stated that employees would fill containers with old grease using the faucets and carry it outside to the grease barrels by the gates. Ms. Greenwood also listed the names of some of the former kitchen employees. In regards to Audubon employees cleaning around the grease trap after the vacuum trucks emptied the trap, Ms. Greenwood stated that "[t]hey never really had to go out there and clean it up because they never - - they didn't spill no grease when the hose - - the hose sucked it all up, so, no, they didn't have to go out there with that." However, Ms. Greenwood stated that employees would use a degreaser and hot water to clean off the back porch in the morning and evening.

Ms. Greenwood testified that she remembered Mr. Edgefield and that she asked him why he was not using a dolly to bring in the seafood. She stated that he never informed her that he fell because if he had, she would have called "First Response" and the manager on duty. Additionally, and contrary to Mr. Edgefield's deposition, Ms. Greenwood stated that the boxes of shrimp he delivered were not broken open. Ms. Greenwood never witnessed grease on the cement or the back porch.

Jan Greco, the Clubhouse general manager, testified in her deposition that she was unaware that Mr. Edgefield fell. Ms. Greco described the process of emptying the old grease from the fryers similar to Ms. Greenwood except Ms. Greco stated that the fryers were not equipped with faucets.

Once Defendants' evidence pointed "out to the court the absence of factual support" as to all three elements essential to Mr. Edgefield's claims, the burden then shifted to Mr. Edgefield "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that" Defendants were "not entitled to judgment as a matter of law." La. C.C.P. art. 966(D)(1).

In support of his opposition to Defendants' Motion for Summary Judgment, Mr. Edgefield attached a four-page excerpt from his deposition, his affidavit, an affidavit of his former workers' compensation attorney, and a four-page excerpt from Ms. Greenwood's deposition. Mr. Edgefield's deposition excerpt contained the following colloquy:

Q. And you say that you slipped when you were on the steps? Is that what you said? I'm sorry.
A. Yeah. It was - - I walk on the step where the grease was, so the grease - - I saw the grease after I fell.
Q. Okay
So there was some grease on the step itself?
A. The concrete and the step.
Q. Okay.
And you slipped in the grease?
A. I guess that's what happened. I fell.

Mr. Edgefield's affidavit provided that he and his two attorneys (tort and workers' compensation) "inspected" the site of the alleged fall. Mr. Edgefield attested that he viewed a stained sidewalk below two faucets, one of which was used to drain grease from the kitchen. Contrary to his deposition testimony, Mr. Edgefield stated that the grease that caused his fall was from the faucets. Mr. Edgefield's workers' compensation attorney attested that he inspected the location of the fall. He observed "an area [sic] discoloration on the sidewalk beneath the discharge drain pipe."

When challenged with Defendants' Motion for Summary Judgment, Mr. Edgefield produced little more than his own self-serving testimony. "Mere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact." Sears v. Home Depot, USA, Inc. , 06-0201, p. 12 (La. App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228. "Such allegations, inferences and speculation are insufficient to satisfy the opponent's burden of proof, even if contained in a deposition." Id. " 'Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.' " Smith , 93-2512, p. 27, 639 So.2d at 751, quoting Brown v. B & G Crane Serv., Inc. , 172 So.2d 708, 710 (La. App. 4th Cir. 1965).

As to the cause of his alleged fall, Mr. Edgefield speculated that grease caused him to slip. Mr. Edgefield did not recall seeing anything on the steps prior to his alleged fall.

Much like the plaintiff in Walthall v. E-Z Serve Convenience Stores, Inc. , 988 F.Supp. 996, 1000 (E.D. La. 1997), aff'd, 146 F.3d 868 (5th Cir. 1998), Mr. Edgefield was "unable to establish" that grease accumulated on the steps prior to his fall or that it was there for a period of time, "as is required by La. R.S. 9:2800.6(B)(2)." In Walthall , the Federal Judge found that "[t]his complete lack of evidence falls short of carrying the requisite burden of proving the water was on the floor for a period of time that E-Z Sesame should have discovered its existence." Id. The Defendants were not required to show "the absence of the existence of the condition prior to the fall." White v. Wal-Mart Stores, Inc. , 97-0393, p. 4 (La. 9/9/97), 699 So.2d 1081, 1084. "Such would require the defendant to prove a negative and is not within the clear and unambiguous language of the statute." Id. , 97-0393, p. 7, 699 So.2d at 1086.

Speculation by Mr. Edgefield "falls short of the factual support required to establish that plaintiff will be able to satisfy his evidentiary burden of proof at trial." Babin v. Winn-Dixie Louisiana, Inc. , 00-0078, p. 5 (La. 6/30/00), 764 So.2d 37, 40. See also Reed v. Home Depot USA, Inc. , 37,000, p. 5 (La. App. 2 Cir. 4/9/03), 843 So.2d 588, 591, writ denied , 03-1638 (La. 10/10/03), 855 So.2d 345. Further, Mr. Edgefield's evidence fails to present circumstantial evidence to substantiate that it was more probable than not that the grease spill existed for a period of time prior to his fall. See Davenport v. Albertson's, Inc. , 00-00685, p. 4 (La. App. 3 Cir. 12/6/00), 774 So.2d 340, 343, writ denied , 788 So.2d 427 (La. 2001).

The matter sub judice presents a unique set of facts and circumstances. Mr. Edgefield has been litigating the injuries he sustained during the alleged fall for over thirteen years. Mr. Edgefield failed to present any factual support to create genuine issues of material fact regarding his contention that the grease created an unreasonable risk of harm that was reasonably foreseeable to Defendants. There were no expert affidavits or depositions attached in opposition to Defendants' Motion for Summary Judgment. Mr. Edgefield did not present discovery responses evidencing previous falls at the Clubhouse or affidavits from people who had seen grease spots on the porch, steps, or concrete at the back of the Clubhouse. For all of these reasons and following the Louisiana Supreme Court dictates of White and Babin , we find that the trial court did not err by granting Defendants' Motion for Summary Judgment. Mr. Edgefield failed to produce factual support sufficient to establish genuine issues of material fact existed once Defendant's met their burden on summary judgment. Accordingly, the judgment of the trial court is affirmed.

MOTION FOR NEW TRIAL

Mr. Edgefield also contends that the trial court erroneously denied his motion for new trial. As we previously discussed in our original opinion, Edgefield v. Audubon Nature Inst., Inc. , 17-1050 (La. App. 4 Cir. 9/12/18), --- So. 3d ----, 2018 WL 4403983, and although vacated by the Louisiana Supreme Court, we still find that the evidence presented was not newly discovered. Therefore, the trial court did not abuse its discretion by denying Mr. Edgefield's Motion for New Trial.

DECREE

For the above-mentioned reasons, we find that Mr. Edgefield failed to present factual support sufficient to create genuine issues of material fact regarding his claims. As such, the trial court correctly granted Defendants' Motion for Summary Judgment and dismissed his claims. Also, we find that the trial court did not abuse its discretion by denying Mr. Edgefield's Motion for New Trial because the evidence did not qualify as newly discovered. The judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

JENKINS, J., CONCURS IN THE RESULT

LOBRANO, J. DISSENTS AND ASSIGNS REASONS.

I respectfully dissent. For the reasons previously discussed in my prior dissent, Edgefield v. Audubon Nature Inst., Inc. , 17-1050 (La. App. 4 Cir. 9/12/18), --- So. 3d ----, 2018 WL 4403983 (Lobrano, J., dissenting), I find that Plaintiff put forth sufficient evidence to establish the existence of genuine issues of material fact and that Defendants failed to point out to the court the absence of factual support for Plaintiff's claim. I would reverse the granting of Defendants' Motion for Summary Judgment.

In Plaintiff's Original Brief On Rehearing, Plaintiff asserts that the district court erred by granting Defendants' Motion for Summary Judgment for the following reasons: 1) the district court ignored Plaintiff's testimony that the grease created an unreasonable risk of harm; 2) the district court ignored Plaintiff's testimony about his fall; 3) the district court ignored Lucinda Greenwood's testimony about how the Defendants' employees worked to keep the area around the grease trap clean; and 4) the district court failed to consider the affidavit of Defendants' employee on the Motion for New Trial.

Plaintiff asserts that his testimony sufficiently defeated Defendants' Motion for Summary Judgment. A motion for summary judgment is properly granted if the pleadings, memorandum, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art 966 (A)(3) ; Daniel v. Clarion Inn & Suites , 2016-0760, p. 3 (La. App. 4 Cir. 2/22/17), 214 So.3d 38, 40. A review of the record reveals that Plaintiff demonstrated factual support to create genuine issues of material fact. If there is any doubt as to a dispute regarding a genuine issue of material fact it must be resolved against granting the motion for summary judgment and in favor of a trial on the merits. Oubre v. Louisiana Citizens Fair Plan , 2011-0097, pp. 20-21 (La. 12/16/11), 79 So.3d 987, 1002 ; Orleans Par. Sch. Bd. v. Lexington Ins. Co. , 2011-1720, p.9 (La. App. 4 Cir. 8/22/12), 99 So.3d 723, 729.

Plaintiff, in his deposition and answers to interrogatories, testified that in his capacity as a deliveryman, he was delivering seafood to Defendants' restaurant, where he slipped on a greasy substance and fell. He further states that he told someone at Defendants' establishment that he had fallen, and the two men who witnessed the fall (one who was later discovered to be Johnny Polk) asked Plaintiff if he was "okay," and Plaintiff replied "no." Plaintiff asserts that he slipped on grease as a result of Defendants' grease removal process and grease trap, which Defendants had negligently maintained and placed on the pathway to the kitchen.

As set forth fully in my previous dissent, the deposition testimonies of Ms. Greenwood (kitchen supervisor) and Ms. Greco (manager) reveal that Defendants' employees were responsible for maintaining the grease trap and the pathway. Both establish that Defendants were responsible for the removal of grease and the degreasing and maintenance of the grease trap and pathway. Accordingly, evidence that Defendants placed the grease trap on the pathway, removed grease by way of the pathway, and maintained the grease trap and pathway on which the alleged hazard occurred is enough to qualify as presenting an unreasonable risk of harm and/or having created a condition under La. R.S. 9:2800.6. Therefore, I would reverse the granting of Defendants' Motion for Summary Judgment and remand the case to the district court.

Additional support for the reversal of the summary judgment is that Plaintiff's attorney was not afforded a fair opportunity to present his client's claim and complete discovery considering the unique circumstances of this case. Louisiana jurisprudence holds that parties must be given a fair opportunity to carry out discovery, but there is no requirement that summary judgment be delayed until discovery is complete. Rivarde v. City Of New Orleans , 2015-0655, p.7 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 404 ; Davis v. Riverside Court Condo. Ass'n Phase II, Inc. , 14-0023, p. 19 (La.App. 4 Cir. 11/12/14), 154 So.3d 643, 654 (citing Thomas v. North 40 Land Development, Inc. , 2004-0610, p. 31 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1179 ). The Louisiana Supreme Court has further explained that, "[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact." Id. , 2015-0655, p. 7, 190 So.3d at 404-05 (quoting Simoneaux v. E.I. du Pont de Nemours and Co. , 483 So.2d 908, 913 (La.1986) ).

When discovery is alleged to be incomplete, it is within the district court's discretion either to hear the summary judgment motion or to grant a continuance to allow for further discovery. Roadrunner Transportation Sys. v. Brown , 2017-0040, p.11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272-73. The standard of review for a district court's choice to hear a motion for summary judgment or to grant a continuance, in this procedural context, is an abuse of discretion standard. Id. ; Rivarde v. City of New Orleans , 15-0655, p. 5 (La.App. 4 Cir. 3/9/16), 190 So.3d 400, 403.

"When addressing an adequate discovery claim, this [C]ourt has considered whether discovery has been hindered by a circumstance beyond an opponent's control." Id. , 2017-0040, p.13, 219 So.3d at 1274; See Bourgeois v. Curry , 2005-0211, p. 10 (La.App. 4 Cir. 12/14/05), 921 So.2d 1001, 1008.

In the case sub judice , at the hearing on the Motion for Summary Judgment, Plaintiff's attorney asked the district court to allow him more time to oppose the Motion for Summary Judgment. Additionally, Plaintiff's attorney noted that he "got back [in the case] about three weeks ago," and that he has been "out of the case for about three years." Plaintiff's case was hindered by Plaintiff's attorneys' withdrawal from the case. Plaintiff's current attorney's ability to conduct discovery was also hindered. Three weeks is not an adequate amount of time for a new attorney to properly prepare for a hearing on a Motion for Summary Judgment.

The district court abused its discretion in not granting Plaintiff's attorney additional time to oppose the summary judgment taking into consideration the hindering circumstances in this case, especially the fact that Plaintiff's attorney enrolled as counsel fifteen days before the August 18th Hearing. For the forgoing reasons, I find that the district court erred by granting the motion for summary judgment without an opportunity for adequate discovery by Plaintiff's current attorney.

Additionally, as set forth fully in my previous dissent, I find that the district court abused its discretion by summarily denying Plaintiff's Motion for New Trial. La.C.C.P. art. 1973 provides that a new trial may be granted in any case if there is good ground and necessitates an examination of the facts and circumstances in this case. When the district judge is convinced by his examination of the facts that the denial of a new summary judgment hearing would result in a miscarriage of justice, a new hearing should be ordered. Warren v. Shelter Mut. Ins. Co. , 2016-1647, pp.14-15 (La. 10/18/17), 233 So.3d 568, 579 ; Hardy v. Kidder , 292 So.2d 575, 579 (La.1973).

Recognizing that although our jurisprudence holds that district courts have discretion regarding the determination whether to grant a new summary judgment hearing, in the case sub judice , the district court should hold a proper contradictory hearing when an appellate record is necessary for a sufficient review. A proper application of La. C.C.P. art. 1973 necessitates a careful examination of the facts and circumstances to prevent the miscarriage of justice.

A district court's summary denial of a motion for new trial alleging newly discovered evidence after a granting of a motion for summary judgment that dismisses a case in its entirety is quite different from a district court's summary denial of a motion of a new trial alleging newly discovered evidence after a recent trial on the merits. The former deprives litigants of their day in court and denies them a trial on the merits.

In Plaintiff's Motion for New Trial and Memorandum in Support of a Motion for New Trial, Plaintiff documented the hindering circumstances that prevented him from locating Mr. Johnny Polk, an Audubon employee who witnessed the accident and corroborates Plaintiff's allegations, such as: (1) Plaintiff attorney was not involved in the case for two years and seven months, during which time little discovery and few depositions were taken; (2) when Plaintiff attorney returned to the case, he hired a private investigator to find the workers that were named in Ms. Greenwood's deposition, but the investigator was only able to determine that Mr. Polk might be in the New Orleans area; (3) all of Defendants' kitchen and wait staff Plaintiff sought to find were no longer living at the addresses supplied by Defendants, as they were displaced by Hurricane Katrina; and (4) Plaintiff was at the added disadvantage of just getting his file back from his previous law firm representation who had withdrawn almost at the same time that the Motion for Summary Judgement was filed, and without adequate time to gather and present his evidence. Plaintiff should have been allowed to present this evidence at a contradictory hearing in order to properly make an appellate record for a sufficient review.

JENKINS, J., CONCURS IN THE RESULT

      See Robinson v. Meaux , 2009-374 (La. App. 3 Cir. 11/4/09), 23 So.3d 1025, 1028 (where court found that there were numerous issues of material fact in dispute in a slip and fall suit, involving a grease trap at the alleged accident location, which precluded the defendant's dismissal via summary judgment).

      See Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.) , 2003-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969 (citing Doe v. ABC Corp. , 2000-1905, pp. 10-11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143 )("Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case"). Discovery issues in summary judgment cases are usually dealt with through a request for a continuance of the summary judgment hearing. However, any pleading showing a need for additional discovery, such as a motion for new trial, is allowed.

      Specifically, he requested, "So if the Court is tending to granting this motion, Judge, I would ask that you allow us to get an affidavit to put the plans in evidence so you can see all of the facts before you throw [Plaintiff's] case out." Further, at the end of the summary judgment hearing Plaintiff's attorney asked, " Judge can I point out one final thing?" to which the district court replied, " No, I am not going to hear your surrebuttal."

      See Lamb v. Lamb , 430 So.2d 51, 54 (La. 1983) (where the Court held that given the peculiar circumstances of the case, a miscarriage of justice would result by depriving defendant of the opportunity to defend the case on the merits, finding that defendant was victimized by the neglect of her attorney and the district judge's erroneous belief that she had neglected her legal affairs).

      The granting of the Motion for Summary Judgment and denial of the Motion for New Trial is unsettling in that the current attorney, only recently enrolled as counsel, was denied an opportunity to effectively represent his client. While it is important to resolve cases efficiently, we should be mindful of "the time constraints and pressures imposed on lawyers by the exigencies of litigation practice." General Administrative Rules, Section 11.

      See Smith v. All. Compressors , 2005-855, pp.9-10 (La. App. 3 Cir. 2/1/06), 922 So.2d 674, 680-81 (where the court reasoned that a proper application of La. C. C. P. art. 1973 necessitates a careful examination of the facts and circumstances of each case to prevent the miscarriage of justice when a party is prejudiced by an attorney's error.).

      Similarly, the summary denial of a motion for new trial pertaining to a recent denial of a motion for summary judgment does not deprive a litigant a trial on the merits as does the summary denial of a motion for new trial pertaining to a recent grant of a motion for summary judgment that dismisses a litigant's case in its entirety.


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Alondo GREENLEAF v. STATE of Mississippi
    NO. 2017-KA-01216-SCT
    Supreme Court of Mississippi.
    AFFIRMED - March 21, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, Jackson
    EN BANC.
   ISHEE, JUSTICE, FOR THE COURT:

¶1. Alondo Greenleaf was convicted of aggravated assault after stabbing a young man in the back. Greenleaf testified it was an accident, and on appeal he contends he received constitutionally ineffective assistance of counsel because his defense attorney did not offer what Greenleaf calls an "accident instruction" based on the excusable homicide statute. But Greenleaf fails to rebut the presumption this was sound trial strategy, so we affirm Greenleaf's conviction and sentence.

FACTS

¶2. On April 29, 2016, Greenleaf asked his cousin, Cecily Matthews, to borrow her truck. Matthews initially agreed, but her younger brother, Dennis Smith, Jr., had recently borrowed it and still had the keys. When Greenleaf asked Smith for the keys, Smith refused because, he said, he had recently overheard Greenleaf arguing with his wife, and Greenleaf had threatened to "run her over." At the time of the incident, Smith was about sixteen years old, and Greenleaf was twenty-seven. Smith lived at Matthews's house, and Greenleaf sometimes stayed there too. Several other people were present-Matthews's friend, Smith's friend (an eighteen-year-old man), and Matthews's eight-year-old son. Greenleaf and Smith began arguing outside, but eventually everyone ended up indoors. At that point the stories diverge.

¶3. Matthews said she saw Greenleaf holding a knife with the blade down as if it were a dagger, "like he was ready to stab somebody." A short time later, Greenleaf "bear hugged" Smith and stuck him in the lower back with the knife. Greenleaf then told Smith's friend he was next and "chased him down the street."

¶4. Smith testified that Greenleaf went into the house first. Shortly after Smith himself went in, Greenleaf approached him suddenly and they "bear hugged." Smith said he never saw the knife. After Smith was stabbed, Greenleaf threatened Smith's friend and chased him out of the house.

¶5. Greenleaf took the stand in his own defense and testified that the stabbing was an accident. After the argument with Smith, Greenleaf walked away and went indoors to feed his dog-Greenleaf explained that he had been staying with Matthews and he was keeping his dog at her house. Greenleaf got a kitchen knife to open a bag of dog food when Smith and his friend approached Greenleaf and shoved him. Greenleaf was surprised and lost his balance; the "bear hug" resulted from his trying to catch himself by grabbing Smith. Greenleaf said he dropped the knife during the scuffle and did not know where it went. He realized he had inadvertently stuck Smith only after Matthews began yelling at him. Greenleaf offered to stay and help or to drive Smith to the hospital, but Smith declined. Smith and his friend then threatened to "shoot up" Greenleaf's grandmother's house, so Greenleaf left to avoid escalating the situation. Greenleaf said he later received a phone call from a police investigator and turned himself in.

¶6. On cross-examination, Greenleaf admitted that he had spoken with the police after the incident and that he had not mentioned the dog or opening a bag of dog food. Then, in rebuttal, the prosecution called the police officer who had interviewed Greenleaf. The officer added that, in Greenleaf's original account of the incident, Greenleaf had admitted he had the knife before going into Matthews's house.

¶7. The jury found Greenleaf guilty of aggravated assault, and he was sentenced to five years in prison, with three years suspended and three years of nonreporting post-release supervision. Greenleaf now appeals.

DISCUSSION

¶8. Greenleaf contends he received constitutionally ineffective assistance of counsel because his attorney did not request a certain jury instruction.

¶9. A defendant in a criminal case has a constitutional right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But "[t]here is a strong presumption that counsel's performance falls within the range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To succeed on a claim of ineffective assistance of counsel, the defendant must prove (1) that his attorney's performance was deficient and (2) that the deficient performance deprived the defendant of a fair trial. Dartez v. State , 177 So.3d 420, 423 (Miss. 2015). "The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Branch v. State , 961 So.2d 659, 666 (Miss. 2007) (quoting Strickland , 466 U.S. at 686, 104 S.Ct. 2052 ).

¶10. Ineffective-assistance claims are usually more appropriately brought in post-conviction proceedings. Dartez , 177 So.3d at 422-23. "It is unusual for this [c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal," because "there is usually insufficient evidence within the record to evaluate the claim." Wilcher v. State , 863 So.2d 776, 825 (Miss. 2003) (alteration in original) (quoting Aguilar v. State , 847 So.2d 871, 878 (Miss. Ct. App. 2002) ). We address ineffective-assistance claims on direct appeal only when "the record affirmatively shows ineffectiveness of constitutional dimensions, or ... the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed." Read v. State , 430 So.2d 832, 841 (Miss. 1983).

¶11. And we recognize a strong presumption that "[c]ounsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy" and generally cannot give rise to an ineffective assistance of counsel claim. See Givens v. State , 967 So.2d 1, 6 (Miss. 2007) (quoting Cole v. State , 666 So.2d 767, 777 (Miss. 1995) ). The same is true of jury instructions, and "[w]hether to request a certain instruction generally is a matter of trial strategy." McCoy v. State , 147 So.3d 333, 347 (Miss. 2014). This Court has repeatedly observed that "trial counsel's decision to not request a jury instruction falls under the category of trial tactics, which are not subject to review." Sea v. State , 49 So.3d 614, 619 (Miss. 2010) (quoting Neal v. State , 15 So.3d 388, 406 (Miss. 2009) ). "Such choices are presumed strategic unless counsel's tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness." Rogers v. State , 85 So.3d 293, 297 (Miss. 2012) (internal quotation marks omitted) (quoting McGilberry v. State , 843 So.2d 21, 31 (Miss. 2003) ).

¶12. Greenleaf calls the particular instruction he contends his defense attorney should have submitted an "accident instruction," but the instruction he proffers on appeal is actually based on the excusable homicide statute, Mississippi Code Section 97-3-17 (Rev. 2014). It provides:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

Although the statute defines excusable homicide, the Court of Appeals has suggested the same circumstances would also serve to make an assault excusable. See Rogers v. State , 994 So.2d 792, 802 (Miss. Ct. App. 2008) ; McTiller v. State , 113 So.3d 1284, 1291 (Miss. Ct. App. 2013) (three-judge plurality); Towles v. State , 193 So.3d 688, 697-98 (Miss. Ct. App. 2016) (suggesting an excuse instruction based on the excusable homicide statute would be appropriate in an assault case, but finding no plain error in failing to instruct on all three subsections). But even if we were to assume the trial court was required to instruct on excuse had an instruction been offered, we cannot call the decision not to submit such an instruction to be questionable trial strategy in this case, much less "so ill chosen that it permeates the entire trial with obvious unfairness." Rogers , 85 So.3d at 297.

¶13. Greenleaf was prosecuted under Mississippi Code Section 97-3-7(4)(a)(ii) (Rev. 2014), which provides in relevant part that one is guilty of aggravated assault if he "purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm." Thus, aggravated assault, as charged here, required the injury to have been caused "purposely or knowingly." Id. "Purposely or knowingly" has substantially the same meaning as "wilfully," which itself "means intentionally and not by accident." See State v. Hawkins , 145 So.3d 636, 641 (Miss. 2014) ;

Ousley v. State , 154 Miss. 451, 455, 122 So. 731, 732 (1929). Greenleaf's defense at trial was that the stabbing was unintentional, and his defense attorney argued Greenleaf was innocent because the stabbing had been an accident.

¶14. But for the stabbing to have been excusable under the instruction Greenleaf proffers on appeal, there are additional requirements: under (a), an accident would have been excusable, but only if it had occurred while Greenleaf did some "lawful act by lawful means, with usual and ordinary caution"; (b) requires that it be done by accident and "in the heat of passion, upon any sudden and sufficient provocation"; and (c) is not based on accident at all, but would have required that the stabbing occurred in "sudden combat ... and without any dangerous weapon being used." See Miss. Code Ann. § 97-3-17. We can hardly fault Greenleaf's trial attorney for not requesting an instruction that might confuse the jury by suggesting it was required to find these additional elements in order to acquit Greenleaf based on his accident defense. Greenleaf has failed to rebut the presumption that counsel's failure to offer the proffered instruction was trial strategy.

¶15. The record is sufficient for this Court to find that Greenleaf's ineffective assistance of counsel claim is without merit.

¶16. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.

      Greenleaf called Matthews his cousin, but Matthews's brother, Smith, expressed doubts they were actually related.

      Greenleaf does not raise the issue of whether his attorney should have offered a true accident instruction, but we observe that if he had offered such an instruction, it would not have been error for the trial court to refuse it. See Powell v. State , 806 So.2d 1069, 1079-80 (Miss. 2001).