text:
    STATE of Louisiana v. Rodrick COLEMAN
    2017 KA 1045
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 13, 2018
    Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, Louisiana, Attorney for Appellee, State of Louisiana
    Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for Appellant, Rodrick Coleman
    Rodrick Coleman, Angola, Louisiana Pro Se
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

      The defendant's first name is interchangeably spelled as "Roderick" and "Rodrick" throughout the record. Given that his name appeared to be pronounced as "Rodrick" at the trial, we will use that spelling in this opinion.

   PENZATO, J.

The defendant, Rodrick D. Coleman, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error in a counseled brief to the trial court's denial of his motion for post-verdict judgment of acquittal and the sufficiency of the evidence. The defendant also filed a pro se brief wherein he argues that he was prejudiced and denied a fair trial by the State's leading question on direct examination of a witness. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On July 20, 2008, officers of the East Baton Rouge Parish Sheriff's Office (EBRPSO) were dispatched to the scene of a shooting in the Manson Drive and East Azalea Park Drive area of Baton Rouge. After arriving at 1076 Manson Drive, Officer Samuel Wilson, Jr. secured the scene and observed the deceased victim, Anthony Hall, lying on the ground with apparent gunshot wounds. The police further recovered a pistol located underneath the victim's body, and a clear plastic baggie of suspected marijuana located next to the passenger-rear tire of a vehicle near the victim's body. The officers collected evidence, photographed the scene at Manson Drive, and observed a blood trail within the alleyway leading to the parking lot at 14150 East Azalea Park Drive, where a blood-spattered vehicle, a white T-shirt, and a bicycle were discovered. However, the police did not recover any shell casings from the scene. The police also canvassed the area and spoke to many potential witnesses. David Brown, one of the Manson Drive residents, was interviewed by EBRPSO Detective Sonya Harden, and Brown subsequently testified at the trial. Brown went to his door immediately after hearing several gunshots. At that point, as Brown looked out of his window, a male wearing a white top and dark pants stated, "This is Pakistan," just before entering the backseat of a turquoise green four-door vehicle. The vehicle was driven away from the scene by a female. Detective Todd Morris, the captain of the EBRPSO Homicide Division (Violent Crimes Unit), interviewed another area resident, Bobby Singleton. Singleton, however, stated that he had no knowledge of the shooting, and that he was inside when the shots were fired.

The next morning, Detective Morris was contacted by an anonymous caller who identified the shooter as "Dre." Based on information received from anonymous tips and other potential witnesses, the police learned that Dre was a nickname for the defendant, that the defendant and his girlfriend, Rae Michelle Carrell (often referred to as "Rae Michelle"), were visiting her cousin, Shalena London, at London's residence on Azalea Park Avenue on the night in question, and that the defendant left the scene in London's green Chevrolet Cavalier immediately after the shooting. Further, despite his prior indication that he did not see the shooting, Singleton was identified as an eyewitness to the shooting. Thus, on July 25, 2008, the police went to Singleton's home and he agreed to a recorded interview by Detective Morris.

At the time of the offense, Singleton lived with his mother, Linda Taylor, on Azalea Park Avenue, which is near East Azalea Park Drive where the shooting occurred. Singleton, who became emotional and began crying during the interview, indicated that he had known the victim since third grade and that the victim was murdered on the eve of his twenty-third birthday. Singleton was initially standing outside in front of his brother's apartment with Dre (the defendant) and Rae Michelle. After the defendant and Rae Michelle went inside, Singleton saw the victim riding his bicycle towards him. Singleton, an admitted drug dealer, knew the victim's birthday was hours away and anticipated a drug sale at that point. As the victim approached, he asked Singleton if he could purchase some marijuana to celebrate, further stating that he had four dollars at the time. Considering the victim's upcoming birthday, Singleton agreed to make the exchange for two baggies and led the victim to the alleyway. As the victim placed the four dollars in Singleton's hand, the defendant "crept up" from behind before Singleton could give the victim the marijuana, and began shooting at the victim. The victim pushed Singleton just before attempting to flee. The defendant kept shooting at the victim, ultimately striking him.

The defendant testified at the trial and admitted that he, his girlfriend Rae Michelle, and her two children were at London's residence that night and that he was outside with Rae Michelle at the time of the shooting. He further admitted that he was wearing a long white T-shirt and dark blue jean shorts that night. According to the defendant, he and Rae Michelle were walking when they heard very loud gunshots that were seemingly fired "real, real close" to their standpoint. The defendant confirmed that he left the scene in a green vehicle, stating that after he secured Rae Michelle, they ran to London's apartment, woke up the children, and asked London to take them home. He confirmed that he knew Singleton, but denied knowing or shooting the victim, or having a gun that night.

SUFFICIENCY OF THE EVIDENCE

In a combined argument for the assignments of error, the defendant claims that there was no evidence the jury could have relied on to corroborate the facts asserted in supposed prior statements used to impeach Taylor and Singleton. The defendant notes that both witnesses testified that they did not recall making the pretrial out-of-court statements identifying the defendant, and neither witness was able to identify the defendant as the perpetrator in court. Thus, the defendant maintains that the prior statements cannot be relied on in considering whether the evidence is sufficient to support the conviction. The defendant argues that the jury should not have considered the substance of those statements as proof of the matter asserted. The defendant concludes that the balance of the evidence fails to rise to the level of proof beyond a reasonable doubt that the defendant was the shooter and guilty of second degree murder.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana , 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. State v. Hearold , 603 So.2d 731, 734 (La. 1992).

When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. Id.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson , requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438 ; State v. Wright , 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied , 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville , 448 So.2d 676, 680 (La. 1984).

Louisiana Revised Statute 14:30.1(A)(1) defines second degree murder, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon , 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied , 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco , 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied , 2006-2636 (La. 8/15/07), 961 So.2d 1160.

The State bears the burden of proving the elements of the offense, along with the burden to prove the identity of the defendant as the perpetrator. State v. Draughn , 2005-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied , 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. A positive identification by only one witness is sufficient to support a conviction. State v. Weary , 2003-3067 (La. 4/24/06), 931 So.2d 297, 311, cert. denied , 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006), quoting State v. Neal , 2000-0674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson , 459 So.2d 31, 38 (La. App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall , 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied , 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). It is the fact finder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes , 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

Due to the presence of fresh blood at 1076 Manson Drive where the victim was lying, blood on the vehicle in the parking lot at 14150 East Azalea Park Drive, and a shoeprint impression in the alleyway, the officers on the scene concluded that the victim ran from 14150 East Azalea Park Drive to where his body was discovered at Manson Drive. During their on-the-scene canvas that night, most of the bystanders who were questioned, including Singleton and Taylor, denied seeing anything relating to the shooting. However, the police received information indicating that the victim previously had an altercation with the defendant on Goodwood Boulevard in Baton Rouge. The police further received information prompting them to contact Shalena London the day after the shooting.

London, who testified at the trial, lived on Azalea Park Avenue at the time of the offense. London confirmed that "Dre" (the defendant) and Rae Michelle planned to sleep at her house that night. She further confirmed that the defendant was not in the apartment when she was awakened by gunfire. She went to her front door and stepped outside, but went back inside as one of her neighbors warned her to go inside and close her door. A few minutes later, Rae Michelle and the defendant knocked on London's door, indicating that they were ready to go home. She noted that the defendant was upset and irritated, adding, "He said that somebody was after him, been shooting at him."

Rae Michelle and the defendant proceeded downstairs as London retrieved her car keys. As London proceeded to the stairway, she heard the defendant arguing with someone she was unable to see. London confirmed that Rae Michelle was yelling at the time, telling the defendant to get into the car. London also saw "Ms. Linda" (Linda Taylor) outside at the time. During the ride home, the defendant apologized to London. London specifically testified as follows, "he calls me 'Lyn'. He said, 'Lyn, I'm sorry this happened over here by your house.' And he just said he was sorry." London confirmed that the defendant was wearing a white T-shirt and blue-jean shorts that night. London testified that she did not see the defendant with a gun.

Though Taylor had initially indicated that she did not see anything, she was re-interviewed on March 13, 2009, after her son Singleton's recorded interview. Taylor testified at the trial that she was asleep in bed when she heard the gunshots. After she opened her front door, a neighbor told her to stay inside. Thus, she closed her door and waited before going outside. Minutes later, Taylor's daughter Yolanda Lewis went with Singleton to check on their younger brother, Denard, who also lived in the complex. Taylor then put some shorts on under her gown before also going outside. She saw the defendant as he entered a green car that was then driven from the scene. Taylor remembered being interviewed by Detective Harden after the shooting, and recalled telling her that the defendant left the scene in a green vehicle, but denied telling her that she saw the defendant with a gun that night. However, Detective Harden, who conducted and documented the unrecorded 2009 interview, testified that at that time Taylor specifically stated that just after the gunshots she saw the defendant with a gun in his right hand. According to Detective Harden, Taylor further stated that she heard the defendant state something to the effect, "all you motherf---ers can get it like he got it[,]" just before a female yelled at him, telling him to get into the car.

In addition to denying that she saw the defendant with a gun or had made a pretrial statement indicating as such, Taylor insisted at trial that her son, Bobby Singleton, was inside asleep at the time of the shooting. Taylor further testified that Singleton was schizophrenic and bipolar, was on medication, and had been hospitalized twice before the trial. She testified that although she was in her bedroom asleep at the time, she was certain that Singleton was in the living room sleeping on the sofa bed when the shots were fired because she was the last one to fall asleep that night and Singleton was on the sofa bed asleep before she entered her bedroom. She further testified that she did not hear her alarm that beeps when someone exits the apartment.

Although he indicated at trial that he had difficulty recalling the shooting or his pretrial interview, Singleton's recorded interview was extremely detailed. Singleton stated that the defendant began shooting at the victim after the victim gave Singleton the four dollars, but before Singleton could place the marijuana in the victim's hand. Singleton further specifically stated that the defendant initially missed the victim, but continued firing his weapon, as the victim fled after pushing Singleton out of harm's way. Singleton knew the defendant and did not express any doubts as to the defendant's identity as the shooter. Singleton indicated that immediately after the defendant shot the victim, the defendant turned to Singleton's brother, Denard, and stated, "You can get it too." Before the shooting, Singleton heard rumors that the defendant and the victim previously "got into it" during a marijuana transaction on Goodwood Boulevard. Singleton stated he and the defendant were "cool, tight" at the time of the offense, though there were past indications that the defendant wanted to kill Singleton due to rumors that Singleton had an affair with the defendant's girlfriend. Singleton described the defendant's gun as a rusty snub-nose .38 caliber firearm, noting that he saw it on another occasion before the shooting. However, he was not absolutely certain that the defendant used the same gun in the shooting as it was dark outside at the time.

Though he denied committing the shooting at trial, the defendant confirmed that Singleton was telling the truth about him being outside with Rae Michelle as the shots were fired. The defendant testified that they left the scene immediately after the shooting because they wanted to bring the children, who were in London's apartment asleep at the time, to a safer environment. As noted, the defendant now argues on appeal that the jury should not have considered the substance of the out-of-court statements by Taylor and Singleton as proof of the matter asserted.

While a witness's prior inconsistent statement can be used to attack the credibility of that witness, until the 2004 amendment to Louisiana Code of Evidence article 801(D), it could not be used as substantive evidence of a defendant's guilt. See La. Code Evid. art. 607(D)(2) ; State v. Cousin , 96-2973 (La. 4/14/98), 710 So.2d 1065, 1069. Article 801(D)(1)(a) now provides that a prior statement by a witness is not hearsay if the declarant testifies at the trial, is subject to cross-examination, and the statement is inconsistent with his testimony, provided that the proponent has first fairly directed the witness's attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted. State v. Harper , 2007-0299 (La. App. 1st Cir. 9/5/07), 970 So.2d 592, 601, writ denied , 2007-1921 (La. 2/15/08), 976 So.2d 173.

Both Taylor and Singleton testified at trial, at which time they were subject to cross-examination. As detailed above, they provided testimony that was inconsistent with their prior statements, after they were directed to their prior statements and given ample opportunity to admit the facts of their prior statements. While the defendant contends that the statements at issue were not corroborated, the record shows otherwise. The bicycle found next to the victim at the scene was consistent with Singleton's statement that the victim was riding his bicycle when he approached Singleton to inquire about purchasing marijuana to celebrate his birthday. As Singleton indicated, the victim's twenty-third birthday was imminent. The marijuana found near the victim's body was consistent with Singleton's claim that they were in the midst of a drug transaction, and that he was unable to place the marijuana in the victim's hand as the defendant approached and began firing at the victim. The victim's fatal gunshot wound in his back was consistent with Singleton's claim that the defendant initially misfired, but struck the victim as he was running away. Further, consistent with Taylor's pretrial statement, testimony presented at trial by Brown and London indicated that after the shooting, the defendant made confrontational statements before admittedly leaving the scene in London's green vehicle. Thus, pursuant to Article 801(D)(1)(a), we find that the prior statements by Taylor and Singleton may be considered as substantive evidence or may be given substantive effect.

Moreover, a prior statement by a witness which is "[o]ne of identification of a person made after perceiving the person," is non-hearsay when the witness appears and is cross-examined on the statement. La. Code Evid. art. 801(D)(1)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Stokes , 2001-2564 (La. 9/20/02), 829 So.2d 1009, 1010 (per curiam). See United States v. Brink , 39 F.3d 419, 426 (3rd Cir. 1994) (" 'If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect.' ") (quoting Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, § 801(d)(1)(C)[01], at 801-222 (1993) ); see also Wright , 730 So.2d at 489 (prior identification made of the defendant by the witness in his testimony before a grand jury was admissible when the witness testified at trial that he could not identify the defendant). Thus, pursuant to La. Code Evid. art. 801(D)(1)(c), the statements of prior identification of the defendant by Taylor and Singleton were non-hearsay, and any discrepancy between their prior statements and the in-court testimony was a matter for the jury to weigh. Wright , 730 So.2d at 489 (citing State v. Harper , 27,278 (La. App. 2d Cir. 8/23/95), 660 So.2d 537, 545, writ denied , 95-2318 (La. 1/12/96), 666 So.2d 320 ).

The verdict indicates the jury believed the pretrial statements by Taylor and Singleton and rejected the defendant's hypothesis of innocence denying that he was the shooter. According to London and the defendant's own trial testimony, the defendant was wearing a white T-shirt and jean shorts at the time of the shooting and left the scene in London's green vehicle. Manson Drive resident Brown looked out of his window just after hearing the gunshots, and observed a male wearing a white top and dark pants make confrontational statements before entering a green four-door vehicle. London similarly observed the defendant in a verbal confrontation just before he entered her vehicle. London testified that the defendant came to her apartment just after the shots were fired, abruptly asking for a ride home despite his previous plans to spend the night at London's apartment. Prior to the trial, Taylor positively identified the defendant as the person she saw, just after hearing the gunshots, as he was holding a gun in his right-hand, making confrontational statements, and leaving the scene in a green vehicle. Finally, Singleton's detailed account, including his unequivocal identification of the defendant as the shooter, was well corroborated by the physical evidence presented at trial as discussed above.

In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi , 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire , 2014-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as a perpetrator. Accordingly, the counseled assignments of error lack merit.

LEADING QUESTION

In his pro se brief, the defendant argues that the prosecution's utilization of a leading question on the direct examination of London violated his due process right to a fair trial. The defendant notes that after his defense counsel objected and the trial court sustained the objection, the prosecutor immediately asked a question that he knew would elicit the answer that was suggested in the previous, leading question. The defendant argues that the trial court should not have allowed the prosecutor to rephrase the same question in a manner that would elicit the answer previously provided by the prosecutor. The defendant contends that the trial court allowed the prejudicial error to remain without admonishment or correction. He argues that he was prejudiced by the leading question because the prosecution at the time was "searching for evidence" to show that the defendant was involved in a conflict shortly after the shots were fired. He further argues that the evidence was weak in this case. Citing, in part, the trial court's reasons in denying the motion for post-verdict judgment of acquittal and motion for new trial, the defendant concludes that the statement in question assisted the jury in their guilty verdict.

A leading question is one that suggests the answer the witness is expected to give. State v. Odom , 2003-1772 (La. App. 1st Cir. 4/2/04), 878 So.2d 582, 592, writ denied , 2004-1105 (La. 10/8/04), 883 So.2d 1026. Generally, leading questions should not be used on the direct examination of a witness. La. Code Evid. art. 611(C). The use of leading questions is largely within the discretion of the trial judge. Only a clear abuse of discretion which prejudices the defendant's rights will justify reversal of a conviction. State v. Lynch , 94-0543 (La. App. 1st Cir. 5/5/95), 655 So.2d 470, 476, writ denied , 95-1441 (La. 11/13/95), 662 So.2d 466.

Herein, the defendant specifically refers to the following line of questioning on the direct examination of London by the State:

Q. Now, when he [the defendant] went back outside and the argument started with someone, could you hear what he said?
A. No, I didn't.
Q. All right. Did you ever hear him make a statement about "pussy ass niggers, I ain't to-"
Ms. Leigier [Defense Attorney]: Judge, I'm going to object for leading.
The Court: Sustained.
By Mr. Fontenot [State]:
Q. Did you make-Did you hear him make a statement?
A. Yes.
Q. What did he say?
Ms. Leigier [Defense Attorney]: Judge, I'm still objecting for leading.
Mr. Fontenot: I'm-I'm asking what he said.
By Mr. Fontenot:
Q. What did he say?
A. These pussy ass niggers better stop playing with me.

As the defendant notes on appeal, the trial court did not rule on the second objection. Further, the defendant did not seek a ruling on the second objection or move to admonish the jury. When a defendant objects to the admission of testimony, it is incumbent upon him to seek a ruling from the court, especially where, as in this case, the State immediately rephrases the question in response to the initial objection. Absent a ruling by the court or a refusal by the court to rule, there is nothing for this court to review. See State ex rel. Clark v. Marullo , 352 So.2d 223, 228 (La. 1977) ; Lynch , 655 So.2d at 476. Herein, it was incumbent upon the defendant to seek a ruling on his objection that took place after the State rephrased the question.

Moreover, we disagree with the defendant's argument on appeal that he was denied a fair trial as a result of the State's line of questioning. The defendant is correct in noting that the trial court, when denying the post-trial motions, considered London's testimony in finding that there was sufficient corroboration for the jury to consider the out-of-court statements by Taylor and Singleton as substantive evidence. However, the trial court considered London's testimony in its entirety. Prior to the objectionable portion of her testimony, London had already testified that the defendant was not in her apartment at the time of the shooting. She further testified that within minutes of the shooting the defendant came back to the apartment, upset, irritated, asking for a ride home (although he and Rae Michelle had planned to spend the night there), and indicating that someone was after him or had shot at him. She subsequently testified that the defendant was arguing with someone just before they left the scene, and that during the ride home he vaguely apologized for what happened at her apartment. Thus, even in the absence of the portion of the testimony that was objected to on the basis of leading, London offered substantial evidence to corroborate the statements by Taylor and Singleton.

We reiterate that as to the level of corroboration required to properly consider prior statements as non-hearsay, La. Code Evid. art. 801(D) requires only "any additional evidence." Herein, London's testimony was not the only evidence at trial that corroborated the matter asserted in the pretrial statements by Taylor and Singleton. As noted above in addressing the sufficiency of the evidence counseled assignment of error, the defendant himself confirmed that Singleton was telling the truth about him being outside with Rae Michelle as the shots were fired. Furthermore, as heretofore noted, additional corroboration was provided by the physical evidence including the bicycle, the marijuana, and the location of the victim's fatal gunshot wound. As previously noted, the pretrial statements of identification made by Taylor and Singleton were also properly considered as substantive, non-hearsay under La. Code Evid. art. 801(D)(1)(c). In light of the substantial evidence against the defendant, we conclude that any error resulting from the line of questioning raised herein on appeal was harmless. La. Code Crim. P. art. 921. Considering the foregoing, the pro se assignment of error lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      The victim suffered a through-and-through arm gunshot wound, a chest gunshot wound, and a fatal lower back (spine) gunshot wound that penetrated the left ventricle of his heart.

      The gun was fully loaded at the time and there was no indication that it had been fired.

      "Dre" was implicated by two additional anonymous tips, one to crime stoppers and one to Sergeant Harden.

      According to the autopsy report, the victim was born on July 21, 1985, and his time and date of death is noted as 11:30 p.m., on July 20, 2008. Thus, the victim died just prior to his twenty-third birthday, as Singleton stated. At the trial that took place in January of 2016, over seven years after the offense, Singleton testified that he could not recall the statements he made during the interview and denied being outside at the time of the shooting. According to his testimony, Singleton was on medication at the time of the trial and had been hospitalized for mental conditions.

      Lewis similarly testified that everyone, including her brother, Singleton, was asleep when the gunshots were fired. She testified they went outside to check on their brother, Denard Singleton, after the gunfire ceased, adding that they went through the alleyway. Although she "stumbled on" the victim's body and called 911, she did not make a pretrial statement or speak to anyone about the incident until two months before the trial.

      Detective Morris testified that Singleton's description of the defendant's gun, a snub-nose revolver which do not eject cartridges, was consistent with the fact that no shell casings were found at the scene.

      The defendant admitted at trial that his criminal record included a 1995 guilty plea to attempted armed robbery and a 1998 guilty plea to possession of a firearm by a convicted felon.

      Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C).


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Mark Steven JENKINS v. Jill Hopper JENKINS
    Jill Hopper Jenkins v. Mark Steven Jenkins
    NO. 2017 CA 1200 NO. 2017 CA 1201
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 13, 2018
    Mark D. Plaisance, Thibodaux, Louisiana, Counsel for Appellant, Jill Hopper Jenkins
    Charles E. Griffin, II, St. Francisville, Louisiana, Counsel for Appellee, Mark Steven Jenkins
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

Jill Hopper Jenkins, the appellant, appeals a judgment by the Twentieth Judicial District Court, which denied her request for permanent spousal support in favor of the appellee, Mark Steven Jenkins. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mark and Jill Jenkins were married September 23, 1988. Three children were born of the marriage. Mark filed a petition for divorce on July 25, 2014, wherein he claimed Jill's conduct gave rise to the necessity of him filing for divorce. A judgment of divorce was signed on October 6, 2015, dissolving the marriage. At the time of the divorce, all but the youngest of the children had reached the age of majority.

In her answer and reconventional demand, Jill requested final periodic spousal support, claiming that she was free from fault in the divorce and that she had sufficient financial need. Jill had been employed as a school bus driver until 2010, when she retired. In 2009, she had been diagnosed with breast cancer, for which she underwent a double mastectomy, reconstructive surgery, and chemotherapy. Shortly after receiving a chemotherapy port in her arm, she retired. Her medical treatment due to her cancer was ongoing. In his answer to her reconventional demand, Mark claimed that Jill was not free from fault.

A trial on the issue of permanent periodic spousal support was heard on March 15, 2017. During the hearing, Jill testified that her ongoing medical issues prevented her from holding any kind of a job. She stated that at the time of the hearing, her treatments had resulted in out-of-pocket costs of $22,286.00, averaging about $425.00 a month, plus prescriptions averaging $103.00 a month. In addition to medical expenses, Jill testified as to her household, utility, and cell phone expenses. She was not insured through her employment as a bus driver because during the marriage, she had declined her employer's health insurance in favor of Mark's insurance benefits through his employment.

During cross-examination, Jill testified that she and Mark were "both at fault" for the breakup of the marriage. She claimed that Mark belittled her as being "half a woman" after her surgeries and that they communicated poorly. She admitted to asking Mark to leave the home following a disagreement concerning their youngest child's involvement in an automobile accident.

Mark testified that he had initially separated from Jill on June 22, 2014 after she had asked him to leave the home for "three days in a row," from June 20 to June 22, 2014. Mark stated that this incident was not the first time that Jill had asked him to leave, and when Jill asked him to leave on June 22, 2017, he told her he would not come back to the home. Mark recalled two or three other occasions when Jill asked him to leave the home.

Mark denied ever belittling Jill by calling her half a woman. He also denied abusing her physically. In contrast, he testified that Jill was "moody and argumentative" during the marriage, even before she was diagnosed with cancer. He stated that Jill would refuse to speak to him for multiple days, sometimes as long as a week. Mark testified that she would nag him regularly throughout the marriage, often arguing over issues with the children. Mark testified it got to the point where he found the marriage to be "unbearable." Whenever Jill would tell him to leave the home, Mark would go to another piece of property he owned and sleep in his truck.

The trial court found that Jill failed to meet her burden of proving that she was free from fault in the breakup of the marriage. As such, the trial court denied her request for an award of permanent periodic spousal support in favor of Jill, and this appeal followed.

ASSIGNMENTS OF ERROR

Jill cites the following assignments of error:

1. Because Jill was free from fault in the breakup of her marriage with Mark, the trial court erred in denying her demand for permanent periodic spousal support.
2. Because Jill established she has need beyond her means exceeding $1,900.00 per month, based in part on her medical issues and inability to work, and that her ex-husband has means, the trial court erred in denying her permanent periodic spousal support.

STANDARD OF REVIEW

A spouse seeking permanent alimony must be without fault, and the burden of proof is on the claimant. The question of fault is a factual one. Mayes v. Mayes , 98-2228 (La. App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259.

The appellate court's review of factual findings is governed by the manifest error-clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Almon v. Almon , 2005-1848 (La. App. 1 Cir. 9/15/06), 943 So.2d 1113, 1115. Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. Id.

However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. Id. ; See Stobart v. State, through Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). The manifest error standard of review obligates an appellate court to give great deference to the trial court's findings of fact. We will not reverse factual determinations, absent a finding of manifest error. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).

DISCUSSION

Jill's burden in seeking permanent spousal support was to prove she was free from fault in the breakup of the marriage. To constitute legal fault, misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation. Mayes , 743 So.2d at 1259. Recognized examples of legal fault are adultery, conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other's life, status as a fugitive, and intentional non-support. Id. at 1260. A continued pattern of mental harassment, nagging, and griping by one spouse directed at the other can constitute cruel treatment. Adkins v. Adkins , 42,076 (La. App. 2 Cir. 4/11/07), 954 So.2d 920, 923 ; Jenkins v. Jenkins , 441 So.2d 507, 509 (La. App. 2 Cir. 1983), writ denied, 444 So.2d 1223 (La. 1984).

We find that the record contains sufficient evidence to support the trial court's finding that Jill failed to meet her burden of proving that she was free from fault in the dissolution of the marriage. In addition to Mark's own testimony about Jill's behavior, Cynthia Hopper Smith, Jill's sister, testified on Mark's behalf that Jill told her the reason for the separation was that she asked him to leave. Ms. Smith, being a frequent visitor at the Jenkins' home and being close to both Jill and Mark, knew of at least three occasions Jill had asked Mark to leave the home. Ms. Smith testified she never heard Mark belittle Jill in any way during the twenty-six years of their marriage, but that Jill "talked down" to Mark often. She characterized Mark as being a supportive husband and not abusive to Jill.

Ms. Smith's testimony corroborates Mark's testimony that living with Jill had become unbearable by being constantly argumentative with him and told him to leave the family home on several occasions. The evidence submitted by Jill mostly concerned the valuation and her need of the spousal support she requested. Based on all the evidence in the record, we cannot say that the trial court erred in denying permanent spousal support to Jill. The trial court has vast discretion in matters regarding determination of fault for purposes of precluding final periodic support. The trial court's finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Roan v. Roan , 38,383 (La. App. 2 Cir. 4/14/04), 870 So.2d 626, 632 ; Lyons v. Lyons , 33,237 (La. App. 2 Cir. 10/10/00), 768 So.2d 853, 859, writ denied, 2000-3089 (La. 1/5/01), 778 So.2d 1142. Since we are affirming the trial court's denial of spousal support, we pretermit discussion on the issue of valuation.

DECREE

The judgment of the Twentieth Judicial District Court denying permanent periodic spousal support on behalf of the appellant, Jill Hopper Jenkins, is affirmed. All costs of this appeal are assessed to the appellant.

AFFIRMED.

      The judgment conflicts with the record by stating that the hearing was held on March 16, 2017. However, the judgment also states that judgment was rendered in open court on March 15, 2017, and that the judgment was signed March 16, 2017. We find the conflict of dates to be simply erroneous and of no moment for the issues presented.

      Jill also filed an appeal of the judgment concerning the partition of the community property, which is also before this Court. See Jenkins v. Jenkins, 2017-1202 c/w 2017-1203 (La. App. 1 Cir. 4/13/18), --- So.3d ----, 2018 WL 1773158.


text:
    J. BOONE DEVELOPMENT, LLC v. MILTON WATER SYSTEM, INC., et al.
    18-99
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
   Steven J. Dupuis, Law Office of Steven J. Dupuis, P.O. Box 4425, Lafayette, LA 70502-4425, Telephone: (337) 233-6070, COUNSEL FOR: Plaintiff/Appellant-J. Boone Development, LLC

Carroll Lee Spell, Jr., P.O. Box 249, Milton, LA 70558, Telephone: (337) 857-9772, COUNSEL FOR: Defendant/Appellee-Milton Water System, Inc.

Michael Dean Hebert, Katherine E. Currie, Becker & Hebert, LLC, 201 Rue Beauregard, Lafayette, LA 70508, Telephone: (337) 233-1987, COUNSEL FOR: Defendant/Appellee-Lafayette Parish Consolidated Government

F. Douglas Wimberly, Cloyd, Wimberly & Villemarette, LLC, P.O. Box 53951, Lafayette, LA 70505-3951, Telephone: (337) 289-6906, COUNSEL FOR: Defendant/Appellee-William Theriot, Councilman of Lafayette City-Parish Consolidated Government

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.

THIBODEAUX, Chief Judge.

Plaintiff, J. Boone Development, LLC (Boone), brought suit against Milton Water System, Inc. (MWS), Lafayette City-Parish Consolidated Government (LCG), and William Theriot (Theriot), alleging multiple causes of action in response to a dispute involving a Wholesale Water Agreement between LCG and MWS. LCG filed its peremptory exception of no cause of action or, in the alternative, no right of action. Boone subsequently amended its petition to further allege its causes of action against LCG, prompting LCG to amend its exception in response thereto. After a hearing, the trial court granted the exception, dismissing Boone's claims against LCG with prejudice. Reviewing the petitions and exhibits incorporated therein, we find no error in the trial court's judgment and affirm the dismissal with prejudice accordingly.

I.

ISSUES

Boone entreats us to consider:

(1) whether the trial court committed legal error in granting LCG's Peremptory Exceptions of No Cause of Action or, in the Alternative, No Right of Action;
(2) whether the trial court committed legal error when it granted LCG's Peremptory Exceptions of No Cause of Action or, in the Alternative, No Right of Action denying Boone leave to amend its Petition; and
(3) whether the trial court committed legal error when it denied Boone's Motion for Continuance of the Hearing on LCG's Peremptory Exceptions of No Cause of Action or, in the Alternative, No Right of Action?

II.

FACTS AND PROCEDURAL HISTORY

Despite the voluminous and verbose petitions, the facts herein are rather straightforward as they relate to LCG. In 2014, Boone purchased approximately 42.35 acres of land in unincorporated Lafayette Parish to develop a residential community, consisting of approximately 172 lots, known as the San Sebastian subdivision (subdivision). Boone contracted with MWS to supply water to the subdivision. As per a 1997 Wholesale Water Agreement, LCG, through the Lafayette Utility System (LUS), supplied wholesale water to MWS.

In October 2014, MWS sent correspondence to LUS advising that MWS may need to request additional water volume from LUS because of a number of proposed developments, including the subdivision. LUS replied that it would need to make a major upgrade to its system in the area to accommodate the request.

On March 13, 2017, LUS sent an invoice to MWS in the amount of $125,781.25, representing the pro-rata share of the future additional capital costs LCG would incur in upgrades to infrastructure necessitated by the development of the subdivision. This rate setting method, called "customer contribution in aid of construction," was utilized in accordance with Lafayette Parish Utility Authority (LPUA) Ordinance No. O-003-2015. MWS then sent a follow-up letter to LUS, revising its estimate to reflect that its actual need for water was less than it had anticipated due to the slowing of developments and repairs of several leaks. It also advised LUS that there would be no need for substantial infrastructure improvements in the foreseeable future. LUS did not, however, withdraw or rescind its invoice. MWS then demanded payment of the invoice by Boone before it would supply water to the subdivision. Boone made the payment by issuing a two-party check to MWS and LCG/LUS, with the notation "PAYMENT UNDER PROTEST WITH A FULL RESERVATION OF RIGHTS."

Boone then filed the present suit against MWS and LCG, alleging tortious conduct and contractual breaches on the part of LCG and MWS, which allegedly caused serious damage to Boone. Also named a defendant was Theriot, who was (1) the president, a board member, and a manager of MWS, (2) an LCG council member, and (3) the developer of property adjacent to the subdivision. Boone alleged in his petition that Theriot required Boone to unnecessarily relocate and move its sewerage system, which occasioned Boone to incur substantial additional cost. These actions allegedly imposed upon Boone "unnecessary and unreasonable delays which cost Plaintiff a substantial amount of additional 'interest carry' on its construction loan." The petition further sought a declaration that the LPUA ordinance was unconstitutional and was intentionally, deceptively, and maliciously used by LCG against Boone in the unconstitutional taking of Boone's cash, property, and property rights.

In response, LCG filed its exception of no cause of action or, in the alternative, no right of action. Boone first sought a continuance of the hearing on the exception. After the trial court denied its motion, Boone amended its petition to further state its causes of action against LCG and expand upon its efforts to assign responsibility to LCG for omissions or actions allegedly taken by MWS and/or Theriot. Consequently, LCG amended its exception, objecting that the amended petition "failed to cure the deficiencies asserted in [the] original [e]xception[.]"

After hearing the exception, the trial court ruled in favor of LCG, reasoning:

In this case LCG and MWS have a contract between one another for the wholesale of water. There is no contract between LCG and J. Boone Development, LLC for the supply of water to the San Sebastian Subdivision. Upon the request of MWS for increased water demand, LCG sent an invoice to MWS. MWS demanded that J. Boone Development pay this invoice. This court does not find a contractual relationship between J. Boone Development, LLC and LCG. The way in which MWS chooses to pass on these additional cost[s] to update or make their system greater to meet the needs of their increased custom[er] base, is up to them. The fact that J. Boone Development, LLC paid the invoice and took it upon themselves to issue a two-party check to MWS and LCG does not create a contract between LCG and J. Boone Development, LLC. As a result of there being no contractual relationship between J. Boone Development, LLC and LCG, this court finds that plaintiff does not have a cause or a right of action against LCG at this time.

The trial court granted the exception, dismissing Boone's claims against LCG with prejudice.

III.

STANDARD OF REVIEW

An appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo. City of New Orleans v. Bd. of Comm'rs of Orleans Levee Dist. , 93-690 (La. 7/5/94), 640 So.2d 237.

IV.

LAW AND DISCUSSION

In ruling on an exception of no cause of action, our supreme court in Ramey v. DeCaire , 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19 (citations omitted), provided the following guidance:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief.

When ruling on the exception, courts may also "consider exhibits attached to the petition in determining whether the law extends a remedy to the plaintiff under the factual allegations of the petition." Bogues v. La. Energy Consultants, Inc. , 46,434, pp. 3-4 (La.App. 2 Cir. 8/10/11), 71 So.3d 1128, 1131.

We are, therefore, tasked with reviewing the petitions and the exhibits attached thereto in a light most favorable to the plaintiff and resolving every doubt in its favor to determine whether the petitions state any valid cause of action for relief against LCG. Having undertaken this task, we, as did the trial court, find no valid cause of action has been pled against LCG.

Through its lengthy and multitudinous petitions, Boone attempts to set forth various causes of action against LCG and advance constitutional claims. However, Boone, in all its allegations, fails to establish a factual connection between any action taken by LCG and the damages or takings Boone allegedly sustained. The only actions alleged to have caused damage were taken by MWS or Theriot, not LCG.

Both the petitions and the attached exhibits, most specifically the invoice, definitively show that Boone was never indebted to LCG. LCG never sought payment of the invoice from Boone and never supplied or failed to supply water to the subdivision. Rather and most significantly, it was MWS that demanded payment by Boone and refused to provide water in the absence thereof. Issuing the payment to both MWS and LCG, even if done under protest, does not, unilaterally or retroactively, create any indebtedness on the part of Boone to LCG for the invoiced amount. Under the facts alleged, LCG had and still has no right to proceed against Boone for the payment of the invoice as well as no obligation to supply water to the subdivision.

Boone also endeavors to expose an alleged agency relationship between LCG and the two other defendants, MWS and Theriot. But the simple statements that MWS contracted with LCG for the supplying of wholesale water and that Theriot was a LCG council member are not factually or legally sufficient to impute any alleged actions taken by either co-defendant to LCG.

As to the alleged actions of MWS and Theriot, Boone merely advances legal theories of agency and respondeat superior, but he has not pled sufficient facts "for a court to find that those facts, if proven, demonstrate that a legal duty is owed by one party to another." Johnson v. Orleans Par. Sch. Bd. , 05-796, p. 5 (La.App. 4 Cir. 3/22/06), 929 So.2d 761, 764. Merely alleging legal conclusions will not be enough to withstand an exception of no cause of action without a sufficient factual basis.

Even accepting all the allegations as true and resolving any doubt in Boone's favor, we can find no factual basis in these petitions sufficient to demonstrate the legal theories advanced therein against LCG based on the alleged actions taken by its wholesale customer, MWS, and its council member, Theriot. Simply put, the facts alleged do not sufficiently show how the status of MWS as LCG's customer and Theriot as LCG's council member have anything to do with the alleged omissions or acts taken by these co-defendants or how those same acts and omissions would somehow bind LCG either under an express mandate or an implied one.

Under our law of mandate, "[a]n agent is one who acts for or in place of another by authority from the latter. An agency relationship may be created by express appointment of a mandatary under LSA-C.C. Art. 2985 or by implied appointment arising from apparent authority in order to protect innocent third parties." Oliver v. Cent. Bank , 26,932, p. 8 (La.App. 2 Cir. 5/10/95), 658 So.2d 1316, 1321, writ denied , 95-1469 (La. 9/22/95), 660 So.2d 477 (citations omitted); see also La.Civ.Code arts. 2985 and 3021. "In an actual authority situation the principal makes the manifestation first to the agent; in an apparent authority situation the principal makes this manifestation to a third person." Tedesco v. Gentry Dev., Inc. , 540 So.2d 960, 963 (La.1989). The facts in Boone's petitions, however, fail to allege any manifestations made by LCG to the effect that either MWS or Theriot had authority to act for LCG, thus precluding a finding of agency or mandate under the facts alleged herein.

Moreover, the contracts clearly show that no contractual relationship existed between LCG and Boone. As has long been held,

A person can become a party to a contract in only one of two ways: First, by entering into it himself, either directly or through an agent; or, secondly, by accepting a stipulation made in his favor by the contractants, he remaining a third person and stranger to it until by accepting the stipulation he becomes a party. Such a stipulation is called in the civil law a "stipulation pour autrui"; "autrui" meaning some one else, or a third person; that is to say, a person not party to the contract.

Allen & Currey Mfg. Co. v. Shreveport Waterworks Co. , 113 La. 1091, 1094-95, 37 So. 980, 982 (1905).

LCG contracted with MWS "to provide a ready supply of potable water on a wholesale basis to MWS ... for resale to its retail and wholesale customers[.]" MWS, in turn, contracted with Boone to supply water to the subdivision. As the contracts show, Boone is not a party to the contract between LCG and MWS.

Moreover, although Boone alleges it is a third-party beneficiary to the contract between LCG and MWS because it is a customer of MWS, its allegations are again merely conclusions which the contracts on their faces do not support. Three criteria must be met to provide a benefit for a third party: "1) the stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee." Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St. Mary , 05-2364, pp. 8-9 (La. 10/15/06), 939 So.2d 1206, 1212. None of the three requirements are evident from the face of the contracts. There is no manifestly clear intention to benefit the developer of the subdivision. Rather, the alleged facts and actions taken by LUS clearly demonstrate that the anticipated retail customers, who prompted the need for the infrastructure upgrade and corresponding invoice at the heart of this matter, are the future residents of the 172 lots, not the developer. With no benefit, it logically follows there is no certainty, and any "benefit" Boone may derive from the contract would strictly be incidental thereto.

Accordingly, we find that the facts alleged and the contracts incorporated into the petitions do not demonstrate any contractual obligations owed by LCG to Boone under any theory advanced by Boone. More importantly, though, we further find the petitions fail to allege facts sufficient to (1) connect any alleged actions taken by LCG to the damages or takings allegedly sustained by Boone, or (2) bind LCG for the alleged omissions or actions taken by MWS and/or Theriot. Having examined the petition and the amended petition in their entirety, we find no error in the trial court's ruling sustaining the exception of no cause of action. Despite the valiant efforts of creative phraseology and the volume of verbiage used by Boone, the assertions in the petition and its attachments simply do not talismanically transform themselves into any actionable claim.

Louisiana Code of Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Although Boone challenges the trial court's refusal to allow further amendment to the petition, we note that Boone has already filed an eighty-two-page amended petition to his original sixty-two-page petition and yet has still failed to plead sufficient facts to state a cause of action against LCG. We find, therefore, that "the grounds of the objection raised through the exception cannot be ... removed" by further amendment and affirm the trial court's dismissal with prejudice. La.Code Civ.P. art. 934.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining LCG's exception of no cause of action and dismissing Boone's claims against LCG with prejudice is affirmed.

Costs of this appeal are assessed to the Appellant, J. Boone Development, LLC.

AFFIRMED.

      This same amount of $125,781.25 attributable to the subdivision was recited in a letter from LUS to MWS, dated January 15, 2015. In that letter, LUS stated that it had advised Boone of the pro-rata cost described above on December 24, 2014.

      LCG also moved for summary judgment, which the trial court's ruling rendered moot.

      The Civil Code article referred to in the quoted language has since been revised and re-numerated in La.Civ.Code art. 2989. Our jurisprudential rules of implied appointment and apparent authority are now codified in La.Civ.Code art. 3021.

      "[I]n order to state a cause of action under the doctrine of responde[a]t superior, the petitioner must allege the existence of an employer-employee relationship, that there was negligence on the part of the employee and that the tortious acts of the employee were committed in the course and scope of the employment." Moreau v. Landry , 305 So.2d 671, 672 (La.App. 1 Cir. 1974) ; see also La.Civ.Code art. 2320. Although such a relationship may allegedly exist between MWS and Theriot, no employer-employee or master-servant relationship has been sufficiently alleged between LCG and either MWS or Theriot, warranting no further discussion by this court.


author: Judge Terri F. Love

text:
    Maxine HALL v. GLOBAL SOLUTION SERVICES, LLC and Illinois National Insurance Company
    NO. 2018-CA-0060
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 20, 2018
    Maxine Hall, 8334 Palm Street, New Orleans, LA 70118, PRO SE PLAINTIFF/APPELLANT, MAXINE HALL
    Denise M. Ledet, JUGE NAPOLITANO GUILBEAU RULI & FRIEMAN, APLC, 3320 West Esplanade Ave. N., Metairie, LA 70002, COUNSEL FOR DEFENDANTS/APPELLEES, GLOBAL SOLUTIONS, LLC AND ILLINOIS NATIONAL INSURANCE COMPANY
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Terri F. Love

This appeal arises from a disputed claim for compensation filed by the plaintiff for injuries sustained while on the job. After a door closed on plaintiff's foot at the hotel where she was working, she was unable to continue working. Plaintiff began to receive workers' compensation benefits, but the benefits were terminated approximately two years after injury. Plaintiff then filed a disputed claim for compensation. Following a trial, the workers' compensation court judge dismissed plaintiff's claims. Plaintiff filed an appeal in proper person contending that she remained entitled to workers' compensation benefits because she continues to suffer from pain and cannot work. We find that the trial court did not commit manifest error by dismissing plaintiff's claims, as there were two permissible views of the evidence, and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 12, 2014, Maxine Hall was working as a housekeeper for Global Solution Services, LLC ("Global") when a closet door automatically shut on her left foot while she was performing a turn down service at the Roosevelt Hotel. Ms. Hall was told at the Ochsner emergency room that no bones were broken. However, Ms. Hall continued to experience pain and swelling. Ms. Hall then treated with Dr. Gregory Moldin, who prescribed pain medication. Ms. Hall's caseworker then directed her to Concentra where Ms. Hall received another x-ray and discovered that she had a fracture in her toe. Ms. Hall was placed on crutches and given a boot. Ms. Hall was then treated by an orthopedic surgeon, a neurologist, a vascular surgeon, and a pain management doctor. Ms. Hall contends she received no relief from her pain, continues to experience swelling, tenderness, and is unable to return to work.

Ms. Hall began receiving workers' compensation benefits as a result of her injuries, but the benefits were terminated on August 7, 2016. Ms. Hall then filed a Disputed Claim for Compensation against Global and its insurer, Illinois National Insurance Company ("Illinois"), seeking a reinstatement of benefits, an authorization for medical treatment, and alleging that Global failed to pay or timely pay for travel expenses. Ms. Hall also requested penalties and attorney's fees. Following the trial, the workers' compensation court judge dismissed Ms. Hall's Disputed Claim for Compensation at her own costs. Ms. Hall filed an appeal in proper person. Ms. Hall contends that the workers' compensation court judge erred by dismissing her claims.

STANDARD OF REVIEW

"Appellate courts review workers' compensation cases using the manifest error-clearly wrong standard of review." Martinez v. Rames , 16-1312, p. 2 (La. App. 4 Cir. 7/12/17), 224 So.3d 467, 470. "In applying the manifest error-clearly wrong standard of review, the appellate court must not determine whether the trier of fact was right or wrong, but only whether the factfinder's conclusion was a reasonable one." Chaisson v. Louisiana Rock Monsters, LLC , 13-1423, p. 3 (La. App. 4 Cir. 4/2/14), 140 So.3d 55, 57. "Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong." Id. "Thus, 'if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' " Banks v. Indus. Roofing & Sheet Metal Works, Inc. , 96-2840, p. 8 (La. 7/1/97), 696 So.2d 551, 556, quoting Sistler v. Liberty Mut. Ins. Co. , 558 So.2d 1106, 1112 (La. 1990).

"When legal error interdicts the fact-finding process in a workers compensation proceeding, the de novo , rather than the manifest error, standard of review applies." Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp. , 11-0179, p. 3 (La. App. 4 Cir. 6/29/11), 70 So.3d 988, 990. "Likewise, interpretation of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct." Id.

DISPUTED CLAIM FOR COMPENSATION

Ms. Hall asserts that the trial court erroneously dismissed her Disputed Claim for Compensation.

Initially, Ms. Hall sought treatment at an Ochsner emergency room and was told she had no broken bones. After being treated by Dr. Moldin, she was told to go to Concentra. There, she received another x-ray and was informed that her toe was fractured.

Dr. Robert Bostick III

Dr. Bostick III, an orthopedic surgeon, treated Ms. Hall between May 2014, and February 2015. Dr. Bostick III assessed Ms. Hall as having achilles bursitis /tendonitis, contusion of the toe, midfoot sprain, and neuralgia-neuritis. He ordered an MRI of her left foot and lumbar spine. Dr. Bostick III initially stated that Ms. Hall could return to work on a sedentary basis, but required her to wear a cast shoe. However, in early 2015, he wrote that Ms. Hall was unable to return to work. Dr. Bostick III also prescribed Ms. Hall several medications. Dr. Bostick III referred Ms. Hall to Dr. Robert Batson and Dr. Morteza Shamsnia.

Dr. Robert Batson

Ms. Hall treated with Dr. Batson, a vascular surgeon, at the referral of Dr. Bostick III, between February 2015, and June 2015. Dr. Batson noted that Ms. Hall was suffering from Complex Regional Pain Syndrome ("CRPS") and recommended that she see Dr. Paul Hubbell for a nerve block. Following the nerve block from Dr. Hubbell, Dr. Batson noted that Ms. Hall had "significant improvement following block." Ms. Hall did not receive any further nerve blocks.

Dr. Morteza Shamsnia

Upon Dr. Bostick III's referral, Ms. Hall treated with Dr. Shamsnia, a neurologist, between April 2015, through June 2016, for her continuing symptoms. Ms. Hall reported to Dr. Shamsnia, complaining of "swelling in the left foot and ankle, weakness in the left foot and numbness and burning in the bottom of her left foot" with "vague discomfort around her left ankle." Dr. Shamsnia noted that Ms. Hall was unable to return to work in April 2015. In April 2015, Dr. Shamsnia noted that Ms. Hall was suffering from left foot pain, possible tarsal tunnel syndrome, and possible CRPS. By June 2016, Dr. Shamsnia noted that Ms. Hall was suffering from tarsal tunnel syndrome, left peroneal neuropathy, and lumbosacral radiculopathies. Ms. Hall remained on medications and Dr. Shamsnia recommended physical therapy.

Dr. Ramon Rodriguez

Ms. Hall was referred to Dr. Rodriguez, an orthopedist, for a second medical opinion in October 2014. Dr. Rodriguez diagnosed Ms. Hall with acute foot pain, CRPS, and back pain with radicular symptoms in the left leg.

Dr. Daniel Trahant

Dr. Trahant, an expert in neurology, treated Ms. Hall in May 2016, as a referral from defendants, Global and Illinois. Dr. Trahant stated in his report that:

[a]ny pain that she is experiencing is on an orthopedic or soft tissue basis. Her complaints, however, and limitation of function of the left foot and, in fact, the entire leg, are all out of proportion to the nature of the injury and is not supported by the clinical examination or diagnostic studies.

Dr. Trahant testified in his deposition that Ms. Hall was not suffering from CRPS. Further, Dr. Trahant stated that Ms. Hall's remaining complaints were "basically of a subjective nature." When questioned, he indicated her symptoms were out of proportion and exaggerated. Dr. Trahant found that Ms. Hall reached maximum medical improvement and should not have any permanent impairment, from a neurological perspective. Dr. Trahant also testified that "from a neurological perspective, she may return to work in any capacity." However, Dr. Trahant qualified that he "would defer to an orthopedist to what his consideration would be for work status on an orthopedic basis, but as far as any nerve injury or neurological cause for her pain, [he] did not think there was one."

Dr. Chad Domangue

Dr. Domangue was appointed by the Office of Workers' Compensation to conduct an independent medical exam on Ms. Hall. During his exam in July 2016, Dr. Domangue noted that Ms. Hall presented to his office on crutches, but wearing two athletic running shoes. Dr. Domangue found "that Ms. Hall's pain perception was over exaggerated and [he] could easily distract to change her reactions to stimuli." Dr. Domangue further notes that Ms. Hall "had no objective findings for complex regional pain syndrome including normal skin texture and color." Dr. Domangue diagnosed Ms. Hall with malingering.

Dr. Domangue explained:

I want to specify that I do not think that Ms. Hall has complex regional pain syndrome and all of her symptoms are malingering and secondary to conscious stimulation. Her imaging does not show any findings other than a small fracture which was healed and does not show any changes that would correlate with a diagnosis of complex regional pain syndrome.

He further opined

[t]he other inconsistency during the exam is the amount of pain she expressed with even the lightest touch in her foot yet she came into my clinic wearing a sock and a running shoe on that foot. I want to specify that the amount of pressure that the sock and shoe would place on the lower extremity is remarkably more than the light touch that I was applying during the physical exam. Also as stated above when we would talk and I would exam other body parts in distraction I was able to lightly touch her foot without the same exaggerated response. I agree with Dr. Trahant's assessment that there is nothing neurologically wrong with Ms. Hall and the only pain that she could be experiencing is on an orthopedic or soft tissue basis. But at this point I think that she is not experiencing organic symptoms and as stated above I think that there are conscious simulation in etiology. I also agree with Dr. Trahant that she has reached maximum medical improvement and from a neurologic perspective there is no reason she cannot go back to the previous levels of duty and she has no medical restrictions from this minor trauma.

Overall, Dr. Domangue found that Ms. Hall suffered from "nothing more than a contusion of her foot" and that "the reason why she has quote, unquote 'pain' and has swelling is because she is consciously not using her leg, and that's what I think is going on." Dr. Domangue stated that Ms. Hall could return to work without restrictions.

University Medical Center

Approximately two months before trial, Ms. Hall began treating at University Medical Center New Orleans. The medical records reflect that Ms. Hall was diagnosed with nerve pain and was continuing to treat with opiates. Ms. Hall was referred to physical therapy.

A review of the medical evidence and testimony presented at trial reflects that one group of physicians believed Ms. Hall suffered from CRPS and could not return to work, while the other group of physicians found that Ms. Hall did not suffer from CRPS and could fully return to work. Notably, the IME found that Ms. Hall did not have CRPS and could return to work. "The courts have interpreted La. R.S. 23:1123 to mean that an IME's medical conclusions should be given significant weight because the IME is an objective witness." Bell , 10-0818, p. 11, 54 So.3d at 1234. Considering this and that two permissible views of the evidence exist, we cannot find that the workers' compensation court judge committed manifest error by dismissing Ms. Hall's Disputed Claim for Compensation. The judgment is affirmed.

DECREE

For the above-mentioned reasons, we find that the trial court did not commit manifest error by dismissing Ms. Hall's Disputed Claim for Compensation, as two permissible views of the evidence existed. Accordingly, the judgment of the workers' compensation court is affirmed.

AFFIRMED

      No written reasons were provided by the workers' compensation court judge.

      Ms. Hall contended this statement was untrue, as she indicated she could only wear a running shoe on her right foot.

      La. R.S. 23:1123"provides for the appointment of an IME when there is a conflict in the medical evidence." Bell v. Mid City Printers, Inc. , 10-0818, p. 11 (La. App. 4 Cir. 12/22/10), 54 So.3d 1226, 1234.


author: COOKS, Judge. AMY, J., dissenting.

text:
    Holly FONTENOT, et al. v. SAFEWAY INSURANCE COMPANY OF LOUISIANA
    17-780
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2018
    R. Scott Iles, P.O. Box 3385, Lafayette, LA 70502, (337) 234-8800, COUNSEL FOR PLAINTIFFS/APPELLANTS: Holly Fontenot and Kristi Young
    Holly K. Yandle, Tracey L. Oakley, Angelique P. Provenzano-Walgamotte, W. Brett Cain, Michael W. Landry, 400 E. Kaliste Saloom Rd., Suite 4300, P.O. Box 92807, Lafayette, LA 70509, (887) 323-8040, COUNSEL FOR DEFENDANT/APPELLEE: Safeway Insurance Company of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc T. Amy, Phyllis M. Keaty and John E. Conery, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

This appeal stems from a single vehicle accident which occurred on December 20, 2015 on South Texas Street in DeRidder, Louisiana. On that date the plaintiff, Holly Fontenot, was operating a 2008 Subaru Impreza with the permission of the owner. The vehicle had been purchased used from a car dealership approximately six months before the accident by Patricia Neil and her husband. The Neils were the parents of Holly Fontenot's fiance, Chris Reid. Guest passengers in the vehicle that day were two minors, Haley Young and Makenzy Young, who were sitting in the backseat. Plaintiff lost control of the vehicle and it ran off the roadway, striking a utility pole. No other vehicle was involved.

Holly Fontenot and Kristi Young, on behalf of her two minor children, Haley and Makenzy, filed suit seeking damages for the injuries allegedly sustained as a result of the accident. The petition alleged Ms. Fontenot suffered "injuries to her back, knees and hand/finger as a consequence of the accident." It was further alleged the two minor children "sustained whiplash type injuries as a consequence of the accident." The sole defendant named in the suit was Safeway Insurance Company of Louisiana, who had issued a policy of insurance covering the Impreza to Patricia Neil.

It was alleged that the accident occurred due to a lack of maintenance on the vehicle. In particular, Plaintiffs contended the Impreza ran off the road because of a broken tie rod, which caused the immediate failure of the steering mechanism. An answer was filed by Safeway, denying the allegations.

The matter was tried before the district court on April 19, 2017. After the close of Plaintiffs' case, Defendant moved for a directed verdict/involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B), contending Plaintiffs failed to show any right to relief under the evidence presented. After hearing oral argument from the parties, the trial court orally granted the motion for directed verdict, stating as follows:

At this time, I will grant the directed verdict. I think that while I don't doubt that the injuries occurred, I believe the basis of this law suit has not been proved. There's been insufficient evidence to prove that there has been no maintenance on the vehicle. There's not been introduced anything about the purchase of the vehicle verifying the mileage, the condition of the vehicle, the warranties or anything other things. There's nothing to prove by any expert what actually caused the car to go off the road. Whether or not as the Officer said, the tie rod broke as a result of causing the crash or if hitting the curb caused the tie rod to break. It could be either way and we don't presume thins under the law. That has to be proven and I think there is a lack of sufficient evidence to prove that at this time. So, the directed verdict is granted.

Judgment was rendered on May 17, 2017, dismissing Plaintiffs' claims with prejudice. Plaintiffs have appealed, arguing the trial court erred in failing to find liability on the part of Safeway as the insurer of a defective vehicle.

ANALYSIS

A motion for involuntary dismissal is the proper procedural vehicle in cases where the action is not tried before a jury. The procedure governing motions for involuntary dismissal is found in La.Code Civ.P. art. 1672(B), which provides as follows:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the [2007-1588 La.App. 3 Cir. 5] plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Pursuant to Article 1672, the trial court must consider and weigh the Plaintiffs' evidence and dismiss the matter if it determines they have not met their burden of proof. Kite v. Carter , 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271. The trial court's grant of an involuntary dismissal is subject to the well-settled manifest error standard of review. Id. Accordingly, in order to reverse the trial court's grant of involuntary dismissal, we must find, after reviewing the record, that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD , 617 So.2d 880 (La.1993). The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable. Id.

A review of the oral reasons for judgment show that the trial court granted the motion for involuntary dismissal because Plaintiffs failed to establish "what actually caused the car to go off the road," as well as "producing insufficient evidence to prove that there has been no maintenance on the vehicle." Therefore, to grant Plaintiffs the relief they seek on appeal, we must find the trial court's conclusion in these areas to be unreasonable.

Plaintiffs based their suit on the fact that they suffered injuries arising out of the use of a vehicle owned by the Defendant's insured that had a dangerous defect. The Louisiana Supreme Court in King v. Louviere , 543 So.2d 1327 (La.1989) held the owner of a vehicle, rather than a driver who has not been charged with maintenance of the vehicle, is liable for damages when an automobile accident arises out of a defect in a vehicle in his care or "garde." Under our law, the responsibility for damages in such a case rests with the owner of the vehicle when it remains in his care. Id. In Williams v. U.S. Agencies Casualty Ins. Co. , 00-1693 (La. 2/21/01), 779 So.2d 729, Justice Victory, in his concurring opinion, discussed the need for placing such responsibility on the owner in such cases:

... the owner is the party liable for damages caused by his vehicle's defects, [and to hold otherwise] would leave the motoring public unprotected whenever such ... an accident occurs as a consequence of a latent defect in a vehicle that remains under the care and custody of its owner. For instance, if the owner of a vehicle with faulty brakes lends the vehicle to a friend who has an accident as a consequence of the brake failure, the injured party could sue the owner's insurer... If there is no coverage for the owner because of a policy exclusion, the innocent injured third party may have no effective recovery. This result would defeat the public policy manifested in the compulsory insurance law and La. R.S. 32:900B(2), which provides that an owner's policy shall insure against loss arising out of ownership, maintenance, or use.

In this case, the testimony of Ms. Fontenot stated she was driving, with permission, Safeway's insured's vehicle, within the posted speed limit on Texas Street, when she heard a loud pop. Her steering mechanism then failed, the vehicle left the roadway and struck the utility pole. Ms. Fontenot's testimony admittedly is sketchy as to the time and distance she traveled after hearing the pop, but she stated she did lose consciousness as a result of the accident. However, there is no indication in the record she was doing anything other than driving her vehicle within her lane of travel until she heard the loud pop. The investigating officer found nothing to indicate Ms. Fontenot had committed any driving infraction. At the scene, a broken tie rod was found on the ground which broke off from the vehicle.

Officer Edward Kuzmik of the DeRidder Police Department, who was called to the scene and investigated the accident at issue, testified as follows concerning the events that surrounded the accident:

Q. Any evidence that this accident happened because of a blow out of a tire or anything like that?
A. No, sir.
Q. Did you have a conclusion of how this accident happened?
A. Based off looking at the totality of the parts on the car and brakeage [sic], I'm not a mechanic but based off of what I've seen in a pat on prior crashes, it appeared that in the front part of the drive train area. The front wheel something broke off on there. I don't know if that was the actual causing factor of it but that was part of it that I observed on the vehicle.
Q. Okay. Do you know of any infractions, driving infractions that had been committed by Ms. Fontenot that caused or contributed to this accident or was it all mechanical failure?
A. I didn't see any time of-there was no indicators of any speeding. Didn't have any witnesses, there was no marks on the roadway so, no indicators of any moving violations[or] infraction due to her driving, no.
Q. Were you able to converse with Ms. Fontenot or were her injuries preventative from you having any kind of communication with her at the scene?
A. No, sir. I did speak with her and she did complain of some pain, yes, sir.
Q. Did she tell you what happened prior to the crash?
A. Yes, sir.
Q. Tell us.
A. When I spoke to her, I asked what took place and what happened. She said, she was driving, she heard a loud pop and the car jerked over to the right, she struck a pole and the air bag exploded. That's what the words she said.
Q. Okay. And that was compatible with what you saw at the scene of the accident?
A. Yes, sir.

On cross-examination, Officer Kuzmik confirmed the tie rod broke off the vehicle and again reiterated he did not believe the car left the roadway for any other reason:

Q. You testified earlier that you did not see any evidence that the loss of control, experience by Ms. Fontenot was anyway related to a possible tire failure or tire blow. Let me correct myself. How are you sure of that?
A. Based off of us picking-myself and Officer Boone, was on scene as well. We picked the tire up and it wasn't flat.
Q. Okay. You testified earlier that you did not observe any markings on the concrete leading up to where the vehicle left the road way; did you specifically look for them or did you just not notice any?
A. No, I can stand corrected on the actual mark where-I know on my crash report there's a spot where it left the road way on the curb. There was some marks on that but I was actually referring to any skid marks in the road way. But there was a point of impact where she camo off the road way, hit the curb and then directly into the pole.

Officer Kuzmik acknowledged he could not say categorically if the tie rod breaking was the "causing factor of the accident." Admittedly, as he noted several times, Officer Kuzmik is not a mechanic and felt hesitant to make such a conclusion. However, a review of his testimony indicates he saw nothing to reveal that Ms. Fontenot was driving erratically or at an excess speed. There were no skid marks on the roadway, and there was only a scuff mark on the curb where the vehicle left the road. He specifically testified a tire blowout could not have been the cause of the loss of vehicle control, as it was not flat at the scene. The only thing he observed that indicated a reason for the vehicle to have suddenly left the road way was the broken tie rod. Although not a mechanic, Officer Kuzmik believed such a malfunction could certainly have led the vehicle to veer suddenly off the road.

We find the evidence adduced during Plaintiff's case in chief was enough to survive a motion for involuntary dismissal.

Ms. Fontenot presented evidence that the broken tie rod was the reason for her losing control of the vehicle, veering off the road and striking the utility pole. At this stage the burden shifted to the Defendant's insured to show that the accident was caused by a latent defect which the owner was not aware of and did not result from the failure to maintain and care for the vehicle. Apparently, the trial court improperly placed this burden on the Plaintiffs. It may be true Defendants may be able to meet this burden, but this evidence does not exist in the record before us. All that was offered was speculation that the tie rod may have broken as a result of the vehicle striking the curb or utility poll. However, as Officer Kuzmik clearly testified, there was no physical evidence presented below that supported such speculation. Thus, the testimony and evidence presented below preponderates that the broken tie rod was the cause of the accident and the trial court at this stage was manifestly erroneous in concluding otherwise. The law is clear that "[i]n view of the clear legislative policy and other empirical considerations, ... the owner of an automobile continues to have the garde of it and to be responsible for the damage caused by its vice or defect even while it is in the physical custody or control of another." King , 543 So.2d at 1330.

We likewise find nothing elicited at trial below indicates that Ms. Fontenot had been delegated the right or the obligation to perform maintenance on the vehicle. She specifically stated she was not responsible for the maintenance of the vehicle and there was nothing to challenge that assertion. There was nothing presented that she had the right of direction or control of the vehicle to the extent that she was empowered to maintain its structural equipment. Consequently, Ms. Fontenot was not in "a position to detect, evaluate or remedy any vice or defect in the automobile's [structural] system." King , 543 So.2d at 1330.

We note part of the trial court's stated reasoning for granting the motion for involuntary dismissal was that Plaintiffs produced "insufficient evidence to prove that there has been no maintenance on the vehicle." As the law clearly provides that duty should be placed on the owner unless Ms. Fontenot was in "a position to detect, evaluate or remedy any vice or defect in the automobile's [structural] system," it was error for her to be held to that duty.

For the above reasons, the judgment of the trial court granting the defendant's motion for involuntary dismissal is reversed. The case is remanded to the trial court for further proceedings. All costs of this appeal are assessed to defendant-appellee, Safeway Insurance Company of Louisiana.

REVERSED AND REMANDED.

Amy, J., dissents and assigns reasons.

AMY, J., dissenting.

I respectfully dissent as I find an affirmation required in this matter.

Importantly, a trial court evaluates a motion for involuntary dismissal upon consideration of all evidence, without special inference in favor of the opponent of the motions, and grants the dismissal if the plaintiff has not established proof by a preponderance of the evidence. Trahan v. Acadiana Mall of Del. , 14-232 (La.App. 3 Cir. 10/1/14), 149 So.3d 359. It appears to me that trial court, as the trier of fact, made a straightforward determination that the plaintiffs failed to meet that burden at the close of their case. I find no manifest error in that determination.

Fundamentally, Ms. Fontenot explained only that she was the permissive driver of a vehicle, that she was driving reasonably, and that she heard a "pop" before the vehicle apparently left the road. Officer Kuzmik's testimony was similarly limited as he identified an area where the vehicle hit the curb, left the road, and struck the light pole. He explained that, after the accident, he identified that the tie rod assembly was broken. However, as evidenced by the following passage, Officer Kuzmik did not testify as to the chain of events:

Q Are you able to say if striking the curb was or was not a possible source of the loud pop that Ms. Fontenot heard before she lost control?
A No, ma'am.
....
Q A few minutes ago when Mr. Iles was asking you some questions, I thought I heard you say that you don't know if the tie rod br[e]aking was the causing factor of the accident. As you sit here today, you still can't say if that's what caused the chain of events.
A That's correct.
Q Or if the broken tie rod was [a] consequence of something that caused the chain of events.
A I don't know. To be honest with you, I'm not a mechanic so I couldn't really tell you. And we're not trained to-we're not crash Reconstructionist[s].
Q Sure.
A So, I can't say that, no.

Thus, upon consideration of either Ms. Fontenot's testimony or that of Officer Kuzmik, it seems to me that the plaintiffs lacked evidence of whether the tie rod assembly was a causative factor in the vehicle leaving the road, or whether the vehicle striking the curb was the source of the loud pop. Given that paucity of factual evidence, I find that the trial court acted permissively in dismissing this matter upon a conclusion that the plaintiff failed to meet her burden of proof.

Although I recognize that King v. Louviere , 543 So.2d 1327 (La.1989), discusses an owner's responsibility for the maintenance of his or her vehicle, I find that case ultimately unhelpful in the present matter. Rather, King inquired into whether the permissive driver could be held solidarily liable with the vehicle's owner (who was sued in strict liability) for the plaintiff's injuries. Id. The permissive driver in that case claimed a latent defect defense in an attempt to exculpate herself from the negligence action lodged against her by the plaintiff. While the supreme court observed that it was the owner who had the duty of maintenance given the facts of that case (the permissive driver was using the car for a work-related errand), it further explained that the permissive driver failed to carry her burden of proving the applicability of the latent defect defense. Id. In short, the plaintiff failed to demonstrate "that the accident was caused exclusively by a latent defect in her vehicle and that she was not guilty even of slight negligence that in any way contributed to the accident." Id. at 1331. The surrounding discussion demonstrates that the inquiry in King focused on the permissive driver's own negligence, not on the existence of an alleged defect.

Even assuming the owner's duty of maintenance, however, it seems to me that the plaintiffs were required to demonstrate the existence of the purported defect and, in turn, causation. In my opinion, the trial court's conclusion that they did not do so is supported by the record as, ultimately, the plaintiffs proved only the existence of a sound prior to the subject accident and a post-accident observation regarding the car's condition. Notably, no expert opinion testimony was offered regarding the potential cause of the sound heard by the driver or the potential mechanical issues involved.

For these reasons, I would affirm the trial court's dismissal of this matter pursuant to La.Code Civ.P. art. 1672(B).

      Since the purchase of the vehicle a few months prior to the accident, Mrs. Neil, who was the mother of Ms. Fontenot's fiancé, passed away.