text:
    In re Kenner O. MILLER, Jr.
    No. 2009-B-2680.
    Supreme Court of Louisiana.
    May 21, 2010.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kenner 0. Miller, Jr., an attorney licensed to practice law in Louisiana.

During the disciplinary proceedings, respondent presented evidence suggesting his misconduct was caused by his alcoholism and cocaine abuse, for which he has been seeking treatment. To that end, on March 24, 2008, respondent entered into a five-year contract with the Lawyers Assistance Program (“LAP”). The ODC subsequently received information from LAP that respondent’s January 27, 2009 drug test was positive for cocaine. Accordingly, the ODC filed a petition requesting the court place respondent on immediate interim suspension for threat of harm to the public. The court granted the petition on February 11, 2009. In re: Miller, 09-0271 (La.2/11/09), 2 So.3d 418.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

_¡2Count I — The Boyd Matter

In December 2000, Baton Rouge attorney Drew Louviere asked respondent to be lead counsel in the representation of Allen Boyd, who was involved in two car accidents, one in Georgia and one in Louisiana. The Georgia car accident occurred on February 22, 2000 and was subject to a two-year prescription period.

Respondent agreed to associate a Georgia attorney as local counsel for the Georgia case but failed to do so, despite corresponding with a Georgia attorney in January, June, and October 2001. On January 3, 2002 and February 11, 2002, Mr. Louviere contacted respondent to find out if he had obtained a Georgia attorney and to remind him of the approaching prescription date. On February 12, 2002, respondent informed Mr. Louviere that “I’ve got the Ga. matter taken care of. Don’t worry.”

Respondent prepared a lawsuit as a pro se filing and affixed to it a signature purporting to be Mr. Boyd’s without having Mr. Boyd’s power of attorney or other proper legal written authority to sign his name. On February 21, 2002, respondent foiwarded the lawsuit to the clerk of court for Cobb County (Georgia) Superior Court, and the clerk of court’s office filed it on February 22, 2002. Respondent did not inform the Cobb County Superior Court that the signature on the lawsuit was not Mr. Boyd’s.

Respondent also failed to submit forms necessary to have the lawsuit assigned to a judge and served. The clerk’s office returned to respondent a date-stamped copy of the lawsuit and the required forms. Respondent did not return the required forms. Accordingly, the lawsuit was not assigned to a judge or timely served.

| sIn April 2003, February 2004, and July 2004, Mr. Louviere asked respondent about the settlement status of Mr. Boyd’s Georgia case. In July 2004, respondent’s office informed Mr. Louviere that respondent was preparing a settlement package in Mr. Boyd’s case. In September 2004, respondent still had not submitted the settlement package, and Mr. Louviere demanded he return Mr. Boyd’s file. Respondent returned' the file to Mr. Louviere on September 10, 2004.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.3 (candor toward the tribunal), 4.1 (truthfulness in statements to others), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent stipulated that he violated Rules 1.3, 1.4, 8.4(c), and 8.4(d).

Count II — The Heath Matter

In July 2001, Amy Heath retained respondent to handle a medical malpractice claim. In August 2001, respondent requested the appointment of a medical review panel.

In attempting to locate an expert witness to support the malpractice claim, respondent spoke briefly to one other attorney and spoke to only one physician, who reviewed only .part of the medical records. In June 2003, the medical review panel rendered an opinion adverse to Ms. Heath’s claim. Respondent sent Ms. Heath a copy of the opinion on July 11, 2003.

|4In September 2003, respondent filed a petition for damages on Ms. Heath’s behalf with the Fourth Judicial District Court for the Parish of Ouachita. Thereafter, respondent failed to respond to the defendants’ discovery requests. Motions for summary judgment on behalf of most of the defendants were granted in open court on April 5, 2005. The related judgment was signed on April 19, 2005. A joint motion dismissing the remaining defendant, which respondent signed, was granted on July 24, 2006.

In May 2005, respondent mailed a copy of the April 2005 judgment to Ms. Heath and informed her he was unable to find a doctor to testify that malpractice occurred. Ms. Heath requested her file, but respondent did not send it to her until October 2006, more than one year after summary judgment was granted and after she filed a disciplinary complaint against him. Although respondent was in contact with Ms. Heath during the litigation, he failed to properly and accurately advise her of the status of the case.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.4(c). Respondent stipulated that he violated the Rules of Professional Conduct as alleged.

| bCount III — The Hampton Matter

Respondent has never been admitted to the practice of law in Texas. Nonetheless, on March 31, 2004, Linda Hampton hired respondent to represent her in a personal injury matter, based on a slip and fall incident that occurred on July 19, 2003 in Harris County, Texas. The prescription date was July 19, 2005.

Between May 13, 2005 and June 10, 2005, respondent corresponded with two Texas attorneys about undertaking Ms. Hampton’s representation. However, neither wished to do so because of a perceived lack of merit. Between March 31, 2004 and July 19, 2005, respondent did not send a settlement demand or otherwise correspond with the apparent defendants in Ms. Hampton’s case.

Furthermore, although Ms. Hampton’s accident occurred on July 19, 2003, respondent prepared a petition for damages that inaccurately listed the accident date as August 19, 2003. Respondent signed the petition, stating he had been admitted pro hac vice when he did not submit a motion for pro hac vice admission in the case. On August 19, 2005, respondent fax-filed the petition with the district court in Harris County, Texas. Accordingly, respondent did not timely file the petition on Ms. Hampton’s behalf.

During the representation, respondent communicated with Ms. Hampton. However, he failed to keep her properly and accurately advised of the status of the case. He failed to inform her that he had not timely filed the lawsuit on her behalf, had not been admitted pro hac vice in her case, and had not submitted a motion for pro hac vice admission.

On June 30, 2006, another lawyer contacted respondent on Ms. Hampton’s behalf after Ms. Hampton complained to him that respondent would not meet with or speak to her. Despite Ms. Hampton’s requests for her file, respondent did not send |fia copy of her file to her until December 2006, more than one year after the lawsuit was filed and after she filed a disciplinary complaint against him.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer), 5.5(a) (engaging in the unauthorized practice of law), 8.4(c), and 8.4(d). Respondent stipulated that he violated the Rules of Professional Conduct as alleged.

DISCIPLINARY PROCEEDINGS

In September 2007, the ODC filed three counts of formal charges against respondent. In December 2007, respondent answered the formal charges, admitting some alleged misconduct and denying other alleged misconduct. He also indicated he had been undergoing intensive substance abuse treatment through the Tau Center.

Formal Hearing

This matter proceeded to a hearing in mitigation conducted by the hearing committee in July 2008. Respondent introduced the following exhibits: 1) January 26, 2009 video deposition of Paula Norris, a substance abuse counselor, 2) January 28, 2009 video deposition of Steven Adams, respondent’s LAP monitor, 3) respondent’s January 28, 2009 video deposition, 4) respondent’s February 6, 2009 ^supplemental video deposition, and 5) the parties’ second joint stipulation and agreement.

In respondent’s initial deposition on January 28, 2009, he admitted he is an alcoholic and a drug addict. However, he denied using alcohol or cocaine since October 2007, and he indicated he has been randomly drug tested through the LAP program. On February 6, 2009, respondent gave a supplemental deposition, wherein he admitted to using cocaine on January 26, 2009, which was detected during his January 27, 2009 random drug test. He admitted he lied about being drug free during his initial deposition on January 28, 2009. However, he indicated his use of cocaine on January 26, 2009 was an isolated incident.

Hearing Committee Report

After considering the evidence and testimony presented in this matter, the hearing committee determined the parties entered a detailed stipulation, which establishes the factual findings. Based on these stipulated facts, the committee found respondent repeatedly failed to provide his clients with diligent representation and repeatedly provided them with inaccurate or incomplete information. The committee further found respondent knowingly deceived his client and the Georgia court by signing Mr. Boyd’s name to the lawsuit without Mr. Boyd’s authorization. The committee also found respondent knowingly deceived the Texas court by post-dating Ms. Hampton’s accident date and misrepresenting his pro hac vice status. Based on these findings, the committee accepted the parties’ stipulation regarding rule violations.

IsThe committee further determined respondent caused injury or potential injury to his clients, and he knowingly engaged in deceitful conduct. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, as well as this court’s prior jurisprudence involving similar misconduct, the committee determined the baseline sanction is suspension.

In aggravation, the committee found multiple offenses and substantial experience in the practice of law (admitted 1983). The committee also found the following mitigating factors present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, cooperative attitude toward the proceedings, mental disability or chemical dependency including alcoholism or drug abuse, and remorse.

After considering this court’s prior jurisprudence, the committee recommended respondent be suspended from the practice of law for three years, fully deferred, subject to his compliance with his March 24, 2008 LAP contract.

The ODC filed an objection to the hearing committee’s recommendation, arguing that no portion of the three-year suspension should be deferred because respondent cannot establish compliance with his LAP contract and cannot establish that he has been drug free during his interim suspension. In the ODC’s subsequent brief to the disciplinary board, it presented two letters from William Leary, LAP’S executive director. The first letter, dated April 30, 2009, indicated respondent had not submitted sobriety reports or attendance sheets for the past quarter and had not taken a drug test since February 2009. The second letter, dated September 10, 2009, indicated respondent’s continued non-compliance with his LAP contract, as he had still not contacted LAP. Under these circumstances, the ODC submitted that mental disability or chemical dependency should not be considered as a mitigating factor. InThe ODC further argued the additional aggravating factor of submission of false evidence, false statements, or other deceptive practices during the disciplinary process is present because respondent intentionally perjured himself during his January 28, 2009 deposition.

Disciplinary Board Recommendation

After review, the disciplinary board, like the hearing committee, accepted the stipulations as factual findings. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as follows:

The Boyd matter — Respondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Mr. Boyd’s legal matter and failing to properly and accurately communicate with Mr. Boyd. Respondent’s signing Mr. Boyd’s name to the pro se lawsuit and failing to inform the Georgia court of same does not rise to the level necessary to establish a violation of the Rules of Professional Conduct. Accordingly, the board determined respondent did not violate Rules 3.3, 4.1, 8.4(b), 8.4(c), and 8.4(d) with respect to respondent signing Mr. Boyd’s name on the lawsuit.

The Heath matter — Respondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Ms. Heath’s legal matter and failing to properly and accurately communicate with her. Respondent violated Rule 1.16(d) by failing to promptly return Ms. Heath’s file. The board did not find violations of Rules 1.16 and 3.1.

The Hampton matter — Respondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Ms. Hampton’s legal matter and failing to properly and accurately communicate with her. Respondent violated Rule 1.16(d) by failing to promptly return Ms. Hampton’s file. Respondent violated Rules 3.3(a)(1), 5.5(a), 8.4(c), and 8.4(d) by filing a lawsuit containing inaccurate material information and falsely | ^representing to another state’s court that he had been admitted pro hac vice. The board did not find violations of Rules 1.16 and 3.1.

The board further determined respondent violated duties owed to his clients, the legal system, and the legal profession. He acted knowingly and caused harm to his clients. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors present: a pattern of misconduct, multiple offenses, submission of false statements during the disciplinary process, and substantial experience in the practice of law. In mitigation, the board found timely good faith effort to rectify the consequences of the misconduct (in the Boyd matter only) and remorse. The board rejected the mitigating factor of mental disability or chemical dependency due to respondent’s use of cocaine just prior to his January 28, 2009 deposition and his abandonment of the LAP program, both of which indicate he has not successfully recovered and recurrence of his misconduct is likely.

Based on this court’s prior jurisprudence involving similar misconduct, the ABA Standards, and the facts of this case, the board recommended respondent be suspended from the practice of law for eighteen months.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter supports the stipulated facts. Based on the parties’ stipulations and the other evidence in the record, respondent has neglected three legal matters, failed to properly and accurately communicate with three clients, failed to promptly return two client files, signed a client’s name to a pro se lawsuit without the client’s written authorization, failed to properly indicate to a court that he signed his client’s name to a pro se lawsuit, filed a lawsuit containing inaccurate material information, and falsely represented to another state’s court that he had been admitted pro hac vice. Based on this misconduct, respondent has violated Rules 1.3, 1.4, 1.16(d), 3.3(a)(1), 5.5(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct, as stipulated to by the parties.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

| ^Respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. His actions caused actual harm to his clients and the legal system. The baseline sanction for this type of misconduct is a period of suspension.

The record supports the following aggravating factors: a pattern of misconduct, multiple offenses, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, and substantial experience in the practice of law. Mitigating factors present are the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, a cooperative attitude toward the proceedings, and remorse.

Prior jurisprudence indicates the appropriate sanction for similar misconduct is a suspension from the practice of law for one year and one day to two years. For example, in In re: Hebert, 08-2785 (La.5/29/09), 9 So.3d 846, we suspended an attorney for one year and one day after the attorney neglected a legal matter, failed to communicate with his client, made false statements of material fact to his client and the ODC, and failed to cooperate with the ODC in its investigation. In In re: Bailey, 03-0839 (La.6/6/03), 848 So.2d 530, we suspended an attorney for two years after the attorney knowingly made false statements to a trial court and knowingly submitted altered evidence at a trial. Finally, in In re: Waltzer, 04-1032 (La.10/8/04), 883 So.2d 973, we suspended an attorney for two years after the attorney neglected three legal matters, failed to communicate with three clients, failed to properly terminate the representation of her clients, failed to cooperate with the ODC in its investigations, failed to appear in response to subpoenas personally served on her, and gave false and misleading information to the ODC.

|1sIn light of the mitigating factors present, we find the eighteen-month suspension recommended by the disciplinary board is reasonable as it will require respondent to file an application for reinstatement before being allowed to return to the practice of law. Accordingly, we will adopt the board’s recommendation and suspend respond from the practice of law for eighteen months, retroactive to the date of his interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kenner O. Miller, Jr., Louisiana Bar Roll number 1963, be and he hereby is suspended from the practice of law for eighteen months, retroactive to February 11, 2009, the date of his interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The Louisiana accident occurred in the summer of 2000, and respondent settled the case for a significant sum of money. Accordingly, respondent’s conduct in the Louisiana case is not at issue in the instant disciplinary proceedings.

      . Respondent did not file oppositions to the motions for summary judgment because he could not find an expert to establish that malpractice had occurred.

      . Due to a clerical error, the remaining defendant was not properly included in the original medical review panel case or the original petition for damages. Respondent agreed to dismiss the lawsuit against the remaining defendant in light of the summary judgment in favor of the other defendants and because the claim against the remaining defendant had prescribed.

      .In the alternative, the ODC alleged respondent violated Rules 1.4, 1.16 (declining or terminating representation), and 3.1 (meritorious claims and contentions) only if he believed Ms. Heath’s cause of action was not viable but failed to properly advise her of his belief and withdraw from the representation.

      . In the alternative, the ODC alleged respondent violated Rules 1.4, 1.16, and 3.1 only if he believed Ms. Hampton’s cause of action was not viable but still failed to properly advise her of his belief and withdraw from the representation.

      . According to his counselor at the Tau Center, respondent attended the Chemical Dependency Intensive Outpatient Program from October 15, 2007 to December 6, 2007. In March 2008, after successfully completing the program, he began attending the Continuing Care Program’s weekly meetings.

      . The parties' second joint stipulation and agreement, dated February 13, 2009, states: "[Respondent] has freely admitted his use of the prohibited substance detected in the screen and has not attempted to hide his failure in this regard. He continues to cooperate with both LAP and his Bar Monitor, Steve Adams. Nonetheless, he is currently in violation of his LAP Contract in light of this positive drug screen."

      . While we acknowledge respondent's alcoholism and drug abuse caused the misconduct, he has been unable to demonstrate a meaningful and sustained period of successful rehabilitation. As the record reflects, respondent used cocaine in January 2009 and has not participated in LAP since February 2009. Therefore, the more heavily weighted mitigating factor of mental disability or chemical dependency is not present.

      . In a footnote, the disciplinary board suggested we may wish not to exercise our discretion to apply the suspension retroactively to the date of respondent’s interim suspension. However, we have historically chosen to exercise our discretion in order to make suspensions run retroactive to the date of prior interim suspensions. See, e.g., In re: La-cobee, 03-2010 (La.2/20/04), 866 So.2d 237; In re: Gaudin, 00-2966 (La.5/4/01), 785 So.2d 763; In re: Ferrouillet, 99-3434 (La.6/30/00), 764 So.2d 948; In re: Edwards, 99-1783 (La.12/17/99), 752 So.2d 801; In re: Sterling, 08-2399 (La.1/30/09), 2 So.3d 408.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Sloan RICHARD.
    No. 2010-OB-0869.
    Supreme Court of Louisiana.
    May 21, 2010.
   hON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Sloan Richard, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Richard, 08-2603 (La.12/19/08), 996 So.2d 291 (hereinafter referred to as “Richard I ”), we accepted a petition for consent discipline filed by petitioner and the Office of Disciplinary Counsel (“ODC”) and suspended petitioner from the practice of law for three years, with all but one year and one day deferred, for violating Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC concurred in petitioner’s reinstatement. Accordingly, the matter was referred to the disciplinary board for review.

After considering the evidence presented, the board recommended to this court that petitioner be reinstated to the practice of law. The board further recommended pthat the time period within which the deferred portion of petitioner’s suspension in Richard I may become executory in the event of further misconduct by petitioner be set at two years from the date of petitioner’s reinstatement.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation and reinstate petitioner to the practice of law. However, we will also place petitioner on supervised probation for a period of two years, subject to the following conditions:

1. Petitioner shall maintain his trust account in accordance with the Rules of Professional Conduct.

2. Petitioner’s trust account shall be subject to quarterly review by a monitor approved by the ODC, at petitioner’s expense, during the period of probation.

3. Petitioner shall attend a session of the LSBA’s Trust Accounting School.

4. Petitioner shall attend a session of the LSBA’s Ethics School.

5. Any violations of these conditions or other misconduct during the probationary period shall be grounds for making the deferred portion of the suspension in Richard I executory, and/or imposition of additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record, it is ordered that Sloan Richard, Louisiana Bar Roll number 28737, be immediately reinstated to the practice of law in Louisiana. It is further ordered that petitioner shall be placed on supervised probation for a period of two years, governed by the conditions set forth in this opinion. The probationary period shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan. Any failure of petitioner to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for |smaking the deferred portion of the suspension imposed in In re: Richard, 08-2603 (La.12/19/08), 996 So.2d 291, executory, or imposing additional discipline, as appropriate. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.


text:
    Kalford K. MIAZZA v. CITY OF MANDEVILLE, et al.
    No. 2010-C-0304.
    Supreme Court of Louisiana.
    May 21, 2010.
   PER CURIAM.

Granted. Based on the reasons assigned by the dissenting judge in the court of appeal, we find the district court has subject matter jurisdiction to consider the appeal pursuant to La. Rev.Stat. 33:2561(E). Having found the legislature vested appellate jurisdiction in the district court, we conclude the court of appeal lacks appellate jurisdiction over this matter. See Caire v. Stassi, 379 So.2d 1056 (La.1980) (holding statute granting appellate jurisdiction to district court divests court of appeal of appellate jurisdiction).

Accordingly, the case is remanded to the court of appeal, which is directed to convert plaintiffs appeal of the district court’s judgment to an application for supervisory writs.

       Chief Justice Kimball not participating in this opinion.


text:
    STATE ex rel. Dermon RODRIGUEZ v. STATE of Louisiana.
    No. 2009-KH-1572.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Rodriguez, Dermon;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, Nos. 02-3801, 99-8066; to the Court of Appeal, Fifth Circuit, No. 09-KH-298.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael COOPER v. STATE of Louisiana.
    No. 2009-KH-1547.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Cooper, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 06-0768; to the Court of Appeal, Fifth Circuit, No. 09-KH-334.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Christopher Dewayne HILL v. STATE of Louisiana.
    No. 2009-KH-1451.
    Supreme Court of Louisiana.
    April 30, 2010.
   In re Hill, Christopher Dewayne;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. B, Nos. 39,806, 40,398; to the Court of Appeal, Second Circuit, No. 44,715-KH.

Denied.

WEIMER, J., would grant.


text:
    Carolyn Hightower JONES v. ABER OIL & GAS COMPANY, Fred Jackson Haberle and Cohort Energy Company.
    No. 2010-CC-0460.
    Supreme Court of Louisiana.
    April 30, 2010.
   In re Christopher Trust;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 518,534; to the Court of Appeal, Second Circuit, No. 45189-CW.

Denied.


text:
    STATE in The Interest of B.E.M.
    No. 2010-CJ-0957.
    Supreme Court of Louisiana.
    May 5, 2010.
   In re E.F.H. (Father);—Other; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, Slidell City Court, No. 2009-4219; to the Court of Appeal, First Circuit, No. 2009 CJ 2061.

Denied.


text:
    In re J.M.C. & M.A.C. Applying for Private Adoption.
    No. 2010-CJ-0969.
    Supreme Court of Louisiana.
    May 5, 2010.
   In re J.M.C. et al.; M.A.C.;—Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court, No. 9545; to the Court of Appeal, First Circuit, No. 2010 CJ 0457.

Denied.


text:
    Jessica GATLIN, Individually and on behalf of Minor Child, Joey Collins, Jr, and Jerry Nathiel Nelson; Catrina Trayshon Sterling-Nelson; Individually and Obo Minor Children Taylor Fayer Nelson; Jerry Nathaniel Nelson; and Jacob Neil Nelson v. Guy A. KLEINHEITZ; Parish Wheels, Inc.; Varian Medical Systems, Inc.; ABD Insurance & Financial Services; Estate of Sharon M. Bolton; Evelyn J. Johnson; Allstate Indemnity Company.
    No. 2010-CC-1011.
    Supreme Court of Louisiana.
    May 5, 2010.
   In re Collins Jr., Joey; Gatlin, Jessica; Nelson, Jerry Nathiel; Sterling-Nelson, Catrina Trayshon;-Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 558,417; to the Court of Appeal, First Circuit, No. 2010 CW 0761.

Denied.


text:
    STATE of Louisiana v. Jason MASTERS.
    No. 2010-KK-1015.
    Supreme Court of Louisiana.
    May 5, 2010.
   In re Masters, Jason;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 491-355; to the Court of Appeal, Fourth Circuit, No. 2010-K-0562.

Denied.


text:
    Frank TATE v. WOMAN’S HOSPITAL FOUNDATION d/b/a Woman’s Hospital.
    No. 2010-C-0425.
    Supreme Court of Louisiana.
    May 7, 2010.
   ORDER

The court hereby informs the parties that it has granted certiorari in this matter. The court has selected this case for possible resolution by summary disposition and per curiam opinion.

Pursuant to Supreme Court Rule VIII, § 5, it is ordered that oral argument be limited to fifteen minutes for each side. During argument, the court may, at its discretion, grant the parties additional time.


text:
    Jonathon JOHNSON and Belinda Johnson, Individually and on behalf of their Minor Son, Garrett Johnson v. MOREHOUSE GENERAL HOSPITAL, et al.
    No. 2010-C-0488.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Johnson, Belinda; Johnson, Jonathon et al.;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. E, No. 2003-587; to the Court of Appeal, Second Circuit, No. 44,798-CA.

Granted. Consolidated with 2010-C-387.

CLARK, J., recused.


text:
    STATE of Louisiana v. Alton Lane STROTHER.
    No. 2009-K-2357.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 287123; to the Court of Appeal, Third Circuit, No. 09-110.

Granted.


text:
    Jonathon JOHNSON and Belinda Johnson, Individually and on Behalf of their Minor Son, Garrett Johnson v. MOREHOUSE GENERAL HOSPITAL, et al.
    No. 2010-C-0387.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Morehouse General Hospital, et al.; Morehouse Parish Hospital Service District No. 1 d/b/a;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. E, No. 2003-587; to the Court of Appeal, Second Circuit, No. 44,798-CA.

Granted.

CLARK, J., recused.


text:
    In re Joseph W. BAILEY.
    No. 2010-B-0426.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Disciplinary Counsel;—Other; Applying For Notice of Discipline in Another Jurisdiction Pursuant to Rule XIX, Section 21 and Motion to Initiate Reciprocal Discipline Proceedings.

Reciprocal discipline ordered. See per curiam.


text:
    STATE ex rel. Allen BRIDGET, Sr. v. STATE of Louisiana.
    No. 2009-KH-1536.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Bridget, Allen;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 04-165527A; to the Court of Appeal, First Circuit, No. 2009 KW 0381.

Denied.


text:
    STATE ex rel. Paul ROBERTS, Jr. v. STATE of Louisiana.
    No. 2009-KH-1593.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Roberts Jr., Paul;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 276876; to the Court of Appeal, Third Circuit, No. KH 08-01401.

Denied.


text:
    STATE ex rel. Edmond BURKHALTER v. STATE of Louisiana.
    No. 2009-KH-1594.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Burkhalter, Edmond;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 271-378.

Denied.


text:
    STATE ex rel. Ralph SWEAT v. STATE of Louisiana.
    No. 2009-KH-1596.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Sweat, Ralph;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 231,232; to the Court of Appeal, Second Circuit, No. 44,773-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Ricky SINCLAIR v. STATE of Louisiana.
    No. 2009-KH-1597.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Sinclair, Ricky;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 260,034; to the Court of Appeal, Third Circuit, No. KH 09-00373.

Denied.


text:
    STATE ex rel. Alfred FLEMING v. STATE of Louisiana.
    No. 2009-KH-1598.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Fleming, Alfred;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 02-4428; to the Court of Appeal, Fifth Circuit, No. 09-KH-316.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Adrian R. MINOR v. STATE of Louisiana.
    No. 2009-KH-1599.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Minor, Adrian R.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 125,980-A; to the Court of Appeal, Third Circuit, No. KH 09-00399.

Denied.


text:
    Charles ALFORD v. Burl CAIN, Warden.
    No. 2009-CI-1601.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Alford, Charles;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 08-WCR-320; to the Court of Appeal, First Circuit, No. 2008 CW 2645.

Denied.


text:
    STATE ex rel. Mario CHARLES v. STATE of Louisiana.
    No. 2009-KH-1602.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Charles, Mario;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 345943; to the Court of Appeal, First Circuit, Nos. 2009 KW 0309, 2005 KW 1552, 2008 KW 1720.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Aaron HAMILTON v. STATE of Louisiana.
    No. 2009-KH-1639.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Hamilton, Aaron;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 79320; to the Court of Appeal, Third Circuit, No. KH 09-00193.

Denied.


text:
    STATE ex rel. Ivory L. SIMON v. STATE of Louisiana.
    No. 2009-KH-1640.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Simon, Ivory L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div., No. CR-821-02; to the Court of Appeal, Third Circuit, No. KH 09-00074.

Denied.


text:
    STATE ex rel. Kirby MATTHEW, Jr. v. STATE of Louisiana.
    No. 2009-KH-1641.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Matthew Jr., Kirby;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 72734-FA; to the Court of Appeal, Third Circuit, No. 07-1326.

Denied.


text:
    STATE ex rel. Ronald EVANS v. STATE of Louisiana.
    No. 2009-KH-1642.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Evans, Ronald;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. E, No. 98-955F; to the Court of Appeal, Second Circuit, No. 37300-KH.

Denied. See State ex rel. Fleury v. State, 93-2898(La.10/13/95), 661 So.2d 488; cf. State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205.


text:
    STATE ex rel. Marilyn Roman LIVELY v. STATE of Louisiana.
    No. 2009-KH-1643.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Lively, Marilyn Roman;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. I, No. 03-458; to the Court of Appeal, Third Circuit, No. KA 08-1310.

Denied.


text:
    STATE ex rel. Michael LeBLANC v. STATE of Louisiana.
    No. 2009-KH-1668.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re LeBlanc, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 4-01-0739; to the Court of Appeal, First Circuit, No. 2009 KW 0279.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. John PRIEST v. STATE of Louisiana.
    No. 2009-KH-1669.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Priest, John;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 16299; to the Court of Appeal, First Circuit, No. 2009 KW 0339.

Denied.


text:
    STATE ex rel. Lamont MATHEWS and James King v. STATE of Louisiana.
    No. 2009-KH-1696.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re King, James; Mathews, Lamont;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 53892; to the Court of Appeal, Third Circuit, No. KH 09-00369.

Denied.


text:
    STATE ex rel. Sergant CAULFIELD v. STATE of Louisiana.
    No. 2009-KH-1853.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Caulfield, Sergant;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 08-4671; to the Court of Appeal, Fifth Circuit, No. 09-K-482.

Denied.


text:
    STATE of Louisiana v. Antoine Demond SMITH.
    No. 2009-KO-2248.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Smith, Antoine Demond;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 08-06-0658; to the Court of Appeal, First Circuit, No. 2009 KA 0262.

Denied.


text:
    Earl WARE v. Troy M. VAUGHN, et al.
    No. 2009-C-2417.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Watson, Craig S.;—Other; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 202,716; to the Court of Appeal, Third Circuit, No. CA 09-263.

Denied.


text:
    STATE of Louisiana v. Sharon Barnes OLDEN.
    No. 2009-K-2478.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Olden, Sharon Barnes;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 10-06-0474; to the Court of Appeal, First Circuit, No. 2008 KA 1695.

Denied.


text:
    STATE of Louisiana v. Jeremy D. HOWARD.
    No. 2009-KO-2531.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Howard, Jeremy D.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-405-2008; to the Court of Appeal, Third Circuit, No. KA 09-281.

Denied.


text:
    STATE of Louisiana v. Jordan D. ZANTIZ.
    No. 2009-KO-2553.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Zantiz, Jordan D.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 436391; to the Court of Appeal, First Circuit, No. 2009 KA 0771.

Denied.


text:
    STATE of Louisiana v. Eddie WILLIAMS.
    No. 2009-K-2565.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Williams, Eddie;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 05-4196; to the Court of Appeal, Fifth Circuit, No. 09-KA-48.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Alton MARKS.
    No. 2009-K-2568.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Marks, Alton;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 08-2922; to the Court of Appeal, Fifth Circuit, No. 09-KA-260.

Denied.


text:
    STATE of Louisiana v. Melvin B. McDOWELL.
    No. 2010-KK-0409.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re McDowell, Melvin B.;—Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Lasalle, 28th Judicial District Court Div. 0, Nos. 86089, 86090, 86091; to the Court of Appeal, Third Circuit, No. KW 10-00007.

Denied.


text:
    STATE of Louisiana v. Tracey YOUNG.
    No. 2010-KK-0476.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 10-06-0811; to the Court of Appeal, First Circuit, No. 2009 KW 1880.

Denied.

KNOLL, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Herbert HARRIS.
    No. 2010-KK-0518.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Harris, Herbert;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 487-795; to the Court of Appeal, Fourth Circuit, No. 2009-K-1365.

Denied.


text:
    Billy Ray WOODARD v. TOWN OF COLFAX.
    No. 2010-C-0520.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Town of Colfax;—Defendant; Applying For Writ of Certiorari and/or Review Office of Workers Compensation District # 02, No. 07-06773; to the Court of Appeal, Third Circuit, No. 09-892.

Denied.


text:
    ORX RESOURCES, INC. v. MBW EXPLORATION, L.L.C. and Mark B. Washauer c/w Orx Resources, Inc.
    No. 2010-C-0530.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re MBW Exploration L.L.C. et al.; Washauer, Mark B.;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2007-6736; to the Court of Appeal, Fourth Circuit, Nos. 2009-CA-0662, 2009-CA-0859.

Denied.

VICTORY, J., would grant.


text:
    AMSOUTH BANK v. Riley Truman SESSIONS and Mark Bryan Sessions.
    No. 2010-C-0531.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Sessions, Riley Truman;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 631-799; to the Court of Appeal, Fifth Circuit, No. 09-CA-504.

Denied.


text:
    STATE ex rel. Ricky SINCLAIR v. STATE of Louisiana.
    No. 2010-KH-0537.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Sinclair, Ricky;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 260,034; to the Court of Appeal, Third Circuit, Nos. KH 09-00986, KH 09-01051, KH 09-00373.

Denied.


text:
    Dorman O. CROWE v. WINN-DIXIE OF LOUISIANA, INC.
    No. 2010-C-0539.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Warren/Sherer, Inc.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. C, No. 64,215; to the Court of Appeal, First Circuit, No. 2009 CA 0647.

Denied.


text:
    Tracy THIBODEAUX, on Behalf of Herself & All Others Similarly Situated v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2010-C-0541.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Louisiana Citizens Property Ins. Corp.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 569,216; to the Court of Appeal, First Circuit, No. 2009 CA 1304.

Denied.


text:
    STATE of Louisiana v. Christopher BROWDER.
    No. 2010-KK-0542.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Browder, Christopher;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 454-863; to the Court of Appeal, Fourth Circuit, No. 2010-K-0056.

Denied.


text:
    The GR GROUP, L.L.C. v. LAFAYETTE INSURANCE COMPANY.
    No. 2010-CC-0546.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re GR Group, L.L.C.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 06-10316; to the Court of Appeal, Fourth Circuit, No. 2009-C-1589.

Denied.


text:
    Amanda ABNEY, Wife of and William Abney, Individually and as the Natural Tutrix of their Minor Children, Kylie M. Abney, Hunter Abney, and Katelynn M. Abney v. Stephanie L. SMITH and USAA Insurance Company, State of Louisiana, Department of Transportation and Development and The Parish of St. Tammany.
    No. 2010-C-0547.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Abney, Amanda et al.; Abney, William;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2001-10554; to the Court of Appeal, First Circuit, No. 2009 CA 0794.

Denied.


text:
    STATE ex rel. Eddie L. JONES v. STATE of Louisiana.
    No. 2010-KH-0555.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Jones, Eddie L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 09-4768; to the Court of Appeal, Fifth Circuit, No. 10-K-40.

Denied.


text:
    STATE of Louisiana v. Lonnie HINES.
    No. 2010-KK-0558.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Hines, Lonnie;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 492-039; to the Court of Appeal, Fourth Circuit, No. 2010-K-0192.

Denied.


text:
    Rosa M. BATISTE v. TENET HEALTHCARE CORPORATION.
    No. 2010-C-0559.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Meadowcrest Hospital L.L.C.;—Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Comp. Dist. 05, No. 07-00919; to the Court of Appeal, First Circuit, No. 2009 CA 1192.

Denied.


text:
    Michael DeLATTE v. PALA GROUP, LLC and Zurich Insurance Company.
    No. 2010-C-0562.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Pala Group LLC et al.; Zurich Insurance Company;—Defendant(s); Applying For Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 9, No. 07-04995; to the Court of Appeal, First Circuit, No. 2009 CA 0913.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Linda Sharee JONES.
    No. 2010-KK-0568.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Jones, Linda Sharee;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 09-08-0443; to the Court of Appeal, First Circuit, No. 2010 KW 0372.

Denied.


text:
    STATE ex rel. Eddie L. JONES v. STATE of Louisiana.
    No. 2010-KH-0728.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Jones, Eddie L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 09-4768; to the Court of Appeal, Fifth Circuit, No. 10-K-87.

Denied.


text:
    Dimitri I. IKONITSKI v. Kateryna IKONITSKI.
    No. 2010-CJ-0853.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Ikonitski, Kateryna;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. K, No. 2009-11771; to the Court of Appeal, First Circuit, No. 2010 CW 0454.

Denied.


text:
    Alfred L. NORRED v. WELLS FARGO FINANCIAL.
    No. 2010-CC-0862.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Norred, Alfred L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 555964; to the Court of Appeal, First Circuit, No. 2009 CW 2293.

Denied.


text:
    STATE ex rel. Leonard FREEMAN v. STATE of Louisiana.
    No. 2010-KH-0901.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Freeman, Leonard;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 02-10-0246; to the Court of Appeal, First Circuit, No. 2010 KW 0260.

Denied. The district court has acted.


text:
    In re Margrett FORD.
    No. 2009-B-2524.
    Supreme Court of Louisiana.
    May 21, 2010.
   In re Ford, Margrett;—Plaintiff; Applying for Rehearing of this Court’s action dated March 26, 2010; Office of Disciplinary Board, No. 08-DB-072.

Rehearing Denied.


author: PETTIGREW, J.

text:
    JENKINS BUILDING SUPPLY, INC. v. Wanda J. McClain THIGPEN and Lionel K. Thigpen.
    No. 2009 CA 0903.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Sondra A. Cheek, Bogalusa, LA, for Plaintiff-Appellee, Jenkins Building Supply, Inc.
    Rykert O. Toledano, Jr., Brian G. Meiss-ner, Covington, LA, for Defendants-Appellants, Wanda J. McClain Thigpen and Lionel K. Thigpen.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| .¿Defendants/appellants, Wanda J. McClain Thigpen and Lionel K. Thigpen, appeal from the trial court’s judgment in favor of plaintiff/appellee, Jenkins Building Supply, Inc. (“Jenkins”), awarding Jenkins damages for out-of-pocket expenses it incurred for materials and subcontractors in connection with the construction of the Thigpens’ residence in St. Tammany Parish. For the reasons that follow, we affirm.

PERTINENT FACTS AND RULING OF THE LOWER COURT

According to the record, the Thigpens initially met with Barrett Jenkins, part owner of Jenkins, in August 2004, to discuss the construction of their home, at which time the Thigpens presented house plan specifications to Barrett. It was agreed by the parties that Jenkins would build the Thigpen home for a fixed price of $95,300.00. Because of title problems with the land, construction did not actually begin until April 2005, with an updated bid proposal dated February 2, 2005. The agreed upon price, $95,300.00, remained the same. As construction progressed, several changes to the original plan specifications were made by the Thigpens, causing an increase in cost. However, the Thigpens assured Barrett that they had borrowed more money than the original bid called for and that the changes would be taken care of at the end of the job.

Construction on the home continued, as did inspections by both the Parish of St. Tammany and Parish National Bank, the bank that provided the loan to the Thig-pens. No workmanship problems or code violations were noted. By August 2005, the home was 75-80 percent complete, and Jenkins had received 3 of 4 draws from Parish National Bank for approximately $70,000.00. Like many other properties in Louisiana, the Thigpen home suffered damage from Hurricane Katrina in August 2005. Barrett worked with the Thigpens’ insurance company to secure insurance funds for the damage sustained as a result of Hurricane Katrina. The Thigpens ultimately received a $30,500.00 check from their insurance company for them property damage claim. After the insurance funds were received by the Thigpens, Jenkins proceeded with salvage work on the home, advancing money out-of-pocket to pay for labor, materials, and appliances. In February 2006, Jenkins requested payment from the Thigpens to cover these out-of-pocket expenses. [sWhen the Thigpens refused, Jenkins ceased all work on the Thigpen home and left the jobsite.

On March 27, 2006, Jenkins filed the instant suit to recover costs it paid out-of-pocket for material and subcontractors for work performed on the Thigpen home. The Thigpens responded, claiming Jenkins’ work was unsatisfactory, and reconvened for alleged damages as a result of breach of contract and pursuant to the New Home Warranty Act (“NHWA”), La. R.S. 9:3141, at seq. The Thigpens sought damages for emotional distress, loss of enjoyment and use, lost opportunities, frustration and concern, and time and energy, as well as all additional costs incurred by them over and above the contract price as a result of the alleged breach of contract by Jenkins.

The matter proceeded to a bench trial on August 20, 2008, and was taken under advisement by the trial court. In a judgment rendered December 16, 2008, the trial court found in favor of Jenkins, awarding damages in the amount of $45,339.44, plus interest from the date of judicial demand until paid. The Thigpens subsequently filed a motion for new trial, which was denied by the trial court. This appeal by the Thigpens followed.

ISSUES PRESENTED

The Thigpens assign legal error by the trial court in finding that the NHWA was the only remedy available to them under the facts of this case and that notice was required under the NHWA. The Thigpens assign manifest error by the trial court in its factual finding that Jenkins was entitled to damages in the amount of $45,339.44 and in its factual finding that the Thigpens were not entitled to attorney fees and costs or compensatory damages for the amounts they paid to complete their residence and for delay in construction and loss of use.

DISCUSSION

The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Hutcherson v. Harvey Smith Const, Inc., 2008-1046, p. 3 (La.App. 1 Cir. 2/13/09), 7 So.3d 775, 778. An appellate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Pierce v. State, Office of Legislative Auditor, 2007-0230, p. 7 (La.App. 1 Cir. 2/8/08), 984 So.2d 61, 67, writ denied, 2008-0542 (La.4/25/08), 978 So.2d 369.

In ruling in favor of Jenkins, the trial court issued the following detailed written reasons for judgment:

This matter came to be heard on the merits August 20, 2008 and was taken under advisement with a briefing schedule (which was later extended due to Hurricane Gustav.) Plaintiff seeks relief for the alleged failure of defendants to pay sums due to it for expenses incurred due to its performance of a building contract. Defendants denied those allegations and reconvened for alleged damages as a result of breach of contract and under the [NHWA].
The Court has no difficulty in determining that plaintiff supplied extra materials and construction that was not contemplated in the building contract. Although all parties could have operated in a more businesslike manner, it is clear that the Thigpens made several changes and knew they would have to pay more for those changes. The Court finds that defendants owe $45,339.44 for those changes. The Court also has no difficulty in finding the defendants breached the building contract and not plaintiff. Defendants never paid the complete draw from Parish National Bank to the contractor and plaintiffs hadn’t gotten anything from the repairs necessitated by Hurricane Katrina. In February, 2006 plaintiff was totally justified in leaving the job. It had done numerous add-ons without compensation as well as not receiving all of the draw nor anything for hurricane repairs. The claim of defendants that plaintiff breached due to time delays is spurious. Mr. Thigpen notes that there was no specific time period agreed upon in the contract and only approximate time frames given in conversation. It appears that even the approximated time might have been met but for Hurricane Katrina. The Court finds that there had been no indications of any dissatisfaction with the construction expressed by the Thigpens until the plaintiff left the job.
Whether there were defects under the [NHWA] is much more difficult and mystifying to the Court. On one hand, it is clear that there were inspections by Parish National Bank before each draw and no workmanship problems were noted. There were inspections by the Parish of St. Tammany and no problems or code violations were noted. Also, | .¡there was an appraisal completed after the last construction of plaintiff showing the value of the house in the condition plaintiff left it at $138,000.00 “as is.” [$143,-515.00 by a Cost Approach Method. Jenkins # 17]. The Court also finds and believes that plaintiff had never been notified of any problems beforehand. On the other hand, defendants introduced numerous pictures showing workmanship that is defective even by the plaintiffs testimony. Plaintiff, except with the exception of one matter, does not admit it to be his construction and states he regularly attended the work site. However, Barrett Jenkins never testified it definitely was not his work nor did he bring in any subcontractor to testify that it was not his work. Plaintiff received a little over $70,000.00 on the contract that had met all the inspections and left a house on a little over 1.5 acres with a value of $138,000.00.
The Court, however, is of the opinion that it does not have to wrestle through its dilemma. The reason for the Court’s dilemma is probably the reason for the [NHWA] being enacted with certain notification procedures. La. R.S. 9:3145 requires that:
Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter. The builder shall give the owner written notice of the requirements of this Chapter at the time of closing.
The reason for such notification is given by the Supreme Court as follows:
[2] Thus, the legislature has specifically excluded from the home builder’s warranty any defects of which the owner fails to give the builder the required notice under the NHWA. The legislature decided the builder should not be responsible for defects of which he was never made aware and never given the chance to remedy in accordance with the standards of the NHWA. Without notice of defects, the builder is deprived of the more economically sound and judicially effi-dent alternative, i.e., the opportunity to cure the defects, an alternative in accord with the legislative intent to promote commerce and stability. In such a case, not only is the owner precluded from recovery under the NHWA, he is also precluded from any other theory of recovery because the NHWA provides the exclusive remedy between owners and new home builders. Thus, the applicability of the NHWA is not waived in such a case, it still applies as it is the exclusive remedy, but this type of defect is excluded from the builder’s warranty as a penalty of the failure to give notice. Carter v. Duhe, 921 So.2d 963 (La.2006) at pg. 968.
The Court would note, also, that failure to give notice negated any ability of the plaintiff to inspect and determine whether the allegations of defective work were true. Once defendants immediately started construction and allegedly repairing the conditions, both the ability of defendants to inspect the construction for the alleged defects and their ability to make more cost effective repairs was negated. Admittedly, | nplaintiff did not give the notice at closing that is required by the statute. However, the Supreme Court in Carter. Ibid., specifically held that, although there was a remedy in favor of the builder for failure to give notice, there was not any penalty provided when the builder failed to give notice at closing. The Court found that Louisiana Civil Code Art. 5 provides that failure to have knowledge of the law does not affect the validity. The builder’s notice deals with knowledge of law while the notice by the owner is not a notice of law but of factual allegations. Ibid, at pg. 969.
Since the [NHWA] is the exclusive remedy against the builder (Ibid.) and the owner notice under La. R.S. 9:3145 was not given, the reconventional demand relating to construction defects is dismissed.'
The Court renders judgment in favor of the plaintiff for $45,339.44 plus interest from date of judicial demand until paid. Costs are taxed to defendants. There was no open account and attorney fees are denied. [Footnote omitted.]

After a thorough review of the evidence in this case, we agree with the essential factual findings provided in the trial court’s reasons for judgment. However, we disagree with the trial court’s finding that the Thigpens’ sole remedy in this case was the NHWA. See Thorn v. Caskey, 32,310, pp. 5-7 (La.App. 2 Cir. 9/22/99), 745 So.2d 653, 658 (holding that NHWA was not the exclusive remedy available to purchasers in their action against builder based on builder’s failure to complete construction of home, and purchasers could bring breach of contract claim as well as claim under NHWA).

With regard to the Thigpens’ NHWA claim, we agree with the trial court’s finding that the Thigpens’ failure to give notice under La. R.S. 9:3145 precludes this claim. Moreover, concerning the breach of contract claim, we note the trial court made specific findings of fact that the Thigpens breached the contract with Jenkins without justification. Therefore, the Thigpens are left with no remedy in breach of contract.

We are convinced that the findings of the trial court are reasonable in light of the record in its entirety. We find no manifest or reversible error in the trial court’s determination that Jenkins is entitled to $45,339.44 plus interest from the date of judicial demand until paid.

LDECREE

For the above and foregoing reasons, we affirm the judgment of the trial court. All costs associated with this appeal are assessed against defendants/appellants, the Thigpens. We issue this memorandum opinion in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B.

AFFIRMED.

CARTER, C.J., concurs.

GUIDRY, J., concurs in the result.


author: CARTER, C.J.

text:
    Jessica GATLIN, individually and on behalf of the minor child, Joey Collins, Jr.; Jerry Nathaniel Nelson and Catrina Trayshon Sterling-Nelson, Individually and on Behalf of the Minor Children, Taylor Fayer Nelson, Jerry Nathaniel Nelson, and Jacob Neil Nelson v. Guy A. KLEINHEITZ, Wheels Inc., Varian Medical Systems, Inc., ABD Insurance & Financial Services, Estate of Sharon M. Bolton, Evelyn J. Johnson, and Allstate Indemnity Company.
    No. 2009 CA 0828.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Writ Denied Feb. 26, 2010.

      Lara E. White, Jason R. Brown, Laurie Briggs Young, New Orleans, LA, for Defendants/Appellants, Guy A. Kleinheitz, Wheels, Inc., and Varían Medical Systems, Inc.
    Daniel R. Atkinson, Jr., Baton Rouge, LA, for Defendants/Appellees, Estate of Sharon M. Bolton and Allstate Insurance Company.
    Donna U. Grodner, Charlotte McDaniel McGehee, for Intervenor, Jessica Gatlin, et al.
    Stephen M. Irving, Baton Rouge, LA, for Defendant/Appellee, Evelyn J. Johnson.
    Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.

      . Because we find that the deposition excerpts were properly "on file” and were referenced by Nelson, we pretermit discussion of whether the excerpts could be considered as attachments to Kleinheitz’s response to the motion for summary judgment, which was filed after judgment was rendered in open court, but before the judgment was signed.

   CARTER, C.J.

IsThis is an appeal of a partial summary judgment dismissing the plaintiffs’ claims against the estate of the driver whose vehi-ele crossed the interstate median and collided with plaintiffs’ vehicle.

FACTS AND PROCEDURAL HISTORY

This suit arises from a motor vehicle accident that occurred on Interstate 12, near Covington, Louisiana. At this stage of the proceedings, it is undisputed that the accident occurred when Sharon Bolton’s vehicle, which was traveling westbound, crossed the center median, entered the eastbound lanes, and collided with another vehicle. Bolton died as a result of the injuries she sustained in the accident. The driver of the other vehicle, Jerry Nelson, and his passenger, Jessica Gatlin, were seriously injured and filed the instant suit. The named defendants include Bolton’s estate (“the estate”) as well as Guy Kleinheitz, who was also traveling westbound at the time of the accident, and who plaintiffs allege caused Bolton to lose control of her vehicle.

The estate filed a motion for summary judgment seeking dismissal of all claims against it, contending that Bolton’s vehicle was struck by another westbound vehicle, which caused Bolton to lose control. The estate supported the motion for summary judgment with the deposition of a witness to the accident who testified she saw a vehicle hit Bolton’s vehicle before Bolton lost control. The estate claimed Bolton was free of fault in causing the accident, and entitled to summary judgment. The estate specified that it|4was not moving for summary judgment on the issue of whether Kleinheitz was the driver of the other westbound vehicle involved.

In response to the motion for summary judgment, Nelson (one of the two plaintiffs) filed a “Response to Statement of Material Facts on Summary Judgment.” Therein, he stated that all witnesses had testified that another vehicle contacted Bolton’s vehicle before she lost control and also stated he was not in possession of any evidence to dispute the statement that Bolton did not do any act that caused her vehicle to go out of control. Gatlin (the second plaintiff) joined in Nelson’s position. Kleinheitz did not oppose the motion for summary judgment and did not participate in the hearing on the matter.

After the hearing, the trial court orally ruled that it found the law and evidence in the estate’s favor and granted the motion. Before a judgment was presented for signature, Kleinheitz filed a “Response to Statement of Material Facts on Summary Judgment” and attached a copy of his deposition, which had been previously filed into the record in connection with an exception of no cause of action. The trial court signed the judgment, granting the motion for summary judgment and dismissing the claims against the estate, with prejudice. Kleinheitz now appeals.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. It should be |Rgranted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, the movant need only show that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2); LeBlanc v. Bouchereau Oil Co., Inc., 08-2064 (La.App. 1 Cir. 5/8/09), 15 So.3d 152, 155. If, however, the movant fails in his burden to show an absence of factual support for one or more of the elements of the adverse party’s claim, the burden never shifts to the adverse party, and the movant is not entitled to summary judgment. LeBlanc, 15 So.3d at 155. Even in the absence of opposition, the movant must show entitlement to summary judgment. Baker v. Ingram, 447 So.2d 101, 102 (La.App. 4 Cir.1984).

Appellate courts review summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Granda v. State Farm Mut. Ins. Co., 04-2012 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Material facts are those that potentially insure or preclude recovery, affect the litigant’s success, or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether a particular fact in | (¡dispute is material can be seen only in light of the substantive law applicable to the case. Gomon v. Melancon, 06-2444 (La.App. 1 Cir. 3/28/07), 960 So.2d 982, 984, writ denied, 07-1567 (La.9/14/07), 963 So.2d 1005; LeBlanc, 15 So.3d at 155.

DISCUSSION

As stated previously, at this stage of the proceedings, it is undisputed that the accident occurred when Bolton’s vehicle left the westbound lanes and entered the eastbound lanes of Interstate 12. Therefore, as these facts establish, Bolton’s vehicle was in the wrong lane of travel and collided with a vehicle in its correct lane of travel. A presumption of negligence arises when a driver leaves her own lane of traffic and strikes another vehicle. Shephard v. Scheeler, 96-1690, 96-1720 (La.10/21/97), 701 So.2d 1308, 1318. Once a prima facie case of negligence is established by way of the presumption, it is the driver’s burden to show that she was not guilty of any dereliction, however slight, that might have had casual connection with the accident. King v. Louviere, 543 So.2d 1327, 1331 (La.1989); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139, 140-141, 142 (1957). Thus, at trial, the estate would bear the burden of exculpating Bolton from any fault contributing to the accident. See Stapleton v. Great Lakes Chemical Corp., 93-1355, 93-1459 (La.11/29/93), 627 So.2d 1358, 1361; King, 543 So.2d at 1331.

The estate moved for summary judgment seeking dismissal of plaintiffs’ claims against it on the basis that Bolton was free of fault. As the mover who would bear the burden of proof at trial, it was the estate’s burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See LSA-C.C.P. art. 966 B. The estate supported its motion for summary judgment "with the deposition testimony of |7Harriet Tansiel, who was also traveling westbound and witnessed the accident. Tansiel testified that a sport utility vehicle was following closely behind Bolton’s vehicle in the “fast lane.” She explained that as the following vehicle attempted to pass Bolton’s vehicle, it struck the rear bumper of Bolton’s vehicle. Tansiel testified that after Bolton’s vehicle was struck, Bolton lost control, and her vehicle began spinning, crossed the interstate median, entered the lanes of eastbound traffic, and collided with the plaintiffs’ vehicle. The following vehicle, which Tansiel says first struck Bolton’s vehicle, did not stop. The estate contends this exonerates Bolton from any liability.

In response to the estate’s motion for summary judgment, plaintiffs essentially agreed with the estate’s position, suggested that Kleinheitz was involved, and cited Kleinheitz’s deposition testimony. Plaintiffs then referred the court to a memorandum previously filed into the record in connection with an exception, with excerpts of Kleinheitz’s deposition testimony attached.

One issue raised on appeal is whether Kleinheitz’s deposition testimony can be considered for purposes of the motion for summary judgment. The estate maintains that since the deposition testimony was not attached to a pleading and was not offered and introduced into evidence, it cannot be considered, citing Dyes v. Isuzu Motors Ltd. in Japan, 611 So.2d 126 (La.App. 1 Cir.1992). In Dyes, this court concluded that a document identified as a release, which had been attached to a [ ^memorandum, could not be considered in ruling on the motion for summary judgment, stating, “[memoran-da are not considered pleadings ... consequently, attachments thereto should not be considered by the trial court in resolving motions for summary judgments.” Dyes, 611 So.2d at 128. We agree with the legal principle stated, but disagree that it applies to the situation presented here.

Louisiana Code of Civil Procedure article 966 B sets forth the documentation to be considered on a motion for summary judgment, stating, “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Article 966 B specifically authorizes consideration of depositions. This includes any depositions “on file,” even if simply attached to a memorandum. Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189-190 (holding that information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment). See also Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 232 (holding that “[ajffida-vits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal.” (Emphasis added.)). Article 966 B does not require that deposition testimony already filed in the record be introduced into evidence at the hearing on the motion for summary judgment.

|flKleinheitz’s deposition testimony was “on file” within the meaning of Article 966 B. Nelson’s response to the motion for summary judgment directed the trial court’s attention to the deposition testimony. Thus, Kleinheitz’s deposition testimony will be considered during this court’s de novo review. See Johnson v. Slidell Memorial Hospital, 552 So.2d 1022, 1023 (La.App. 1 Cir.1989), writ denied, 558 So.2d 571 (La.1990). See also Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 814-815, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231 (finding that deposition excerpts could be considered on a motion for summary judgment, whether filed with motion or memorandum).

In his deposition, Kleinheitz admits that he was driving in proximity to Bolton before she lost control, but denies that their vehicles came into contact. Rather, Kleinheitz contends that as he was passing Bolton’s vehicle, she attempted to enter his lane of travel, then jerked the wheel to the left to correct herself into her lane of travel, which caused her to lose [ incontrol. Kleinheitz admits he witnessed the accident, but did not stop and proceeded on to his destination.

As the party moving for summary judgment, the estate’s burden was to come forward with evidence sufficient to rebut the presumption that Bolton, the driver of the vehicle that crossed into the wrong lanes of travel, was free of fault. Although one witness attested that Bolton’s vehicle was struck by another before losing control, Kleinheitz attested that Bolton lost control when she overcorrected. At this stage, a determination regarding liability would require a credibility determination. Credibility is a question for the trier of fact and cannot be resolved by the court in deciding a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236. Considering this, summary judgment is not appropriate here.

CONCLUSION

For the foregoing reasons, the judgment appealed, which granted summary judgment and dismissed all claims against the estate, is reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the estate.

REVERSED.

GUIDRY, J., concurs in the result.

      . The petition alleges that Kleinheitz was in the course and scope of his employment when the accident occurred, and names his employer as a defendant. Whether Kleinheitz was in the course and scope of his employment is not at issue in this appeal. Thus, arguments presented by Kleinheitz and his employer are referred to herein as being advanced by ''Kle-inheitz.''

      . Although Kleinheitz did not timely oppose the motion for summary judgment, he did not confess judgment or voluntarily and unconditionally acquiesce in the judgment, and is therefore not precluded from appealing. See LSA-C.C.P. art. 2085; Andrus v. Police Jury of Lafayette Parish, 266 So.2d 535, 537-538 (La.App. 3 Cir. 1972). However, this court's appellate review is limited to the evidence that was in the record at the time the trial court rendered its judgment. Dyes v. Isuzu Motors, Ltd. in Japan, 611 So.2d 126, 128 (La.App. 1 Cir.1992).

      . We note that it has not been clearly established how the vehicles were positioned prior to their alleged contact. However, that is not pertinent to this appeal, as the estate relies on the fact of contact alone to support its motion for summary judgment.

      . During oral argument, an issue was raised as to whether the deposition testimony is appropriate for consideration because it is not the complete deposition and consists of excerpts only. Although this issue was not briefed, we note that it is meritless as LSA-C.C.P. art. 1450 allows the use of any part or all of a deposition for purposes of a motion for summary judgment. Cf. Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 815, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231.
      Also raised for the first time was the argument that the deposition excerpts were not properly "on file” because they had been filed into the record in connection with a peremptory exception raising the objection of no cause of action, on which no evidence can be introduced. See LSA-C.C.P. art. 931. We note that this issue was not briefed and no supporting legal authority was cited during oral argument. We find no merit to the argument. The court is not reviewing the deposition testimony for the purpose of determining whether the plaintiffs’ petition states a cause of action. Rather, the deposition testimony "on file” is being considered in accordance with LSA-C.C.P. art. 966 to determine whether the estate is entitled to summary judgment.

      . Our findings herein are limited to the motion for summary judgment and the record before us on appeal. We make no findings regarding the ultimate liability of the parlies in this case.