author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Earlene COUVILLION v. RIVERSIDE PROPERTIES, L.L.C., and XYZ Insurance Company
    NO. 2017-CA-1000
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 20, 2018
    DARLEEN M. JACOBS, AL A SARRAT, RENE D. LOVELACE, JACOBS, SARRAT, LOVELACE & HARRIS, 823 St. Louis Street, New Orleans, Louisiana 70112-3415, COUNSEL FOR PLAINTIFF/APPELLANT
    PHILIP G. WATSON, DUPLASS ZWAIN BOURGEOIOS PFISTER WEINSTOCK & BOGART, 3838 North Causeway Boulevard, Suite 2900, Metairie, Louisiana 70002, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale Atkins )
   JAMES F. MCKAY III, CHIEF JUDGE

In this action based on negligence, involving a fall on a stairway, the plaintiff, Earline Couvillion, appeals the district court's granting of a summary judgment in favor of the defendants, Riverside Properties, L.L.C. and XYZ Insurance Company. For the reasons that follow, we reverse the district court's judgment and remand the matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On March 11, 2015, at approximately 12:30 p.m., Ms. Couvillion was exiting the stairs of a building owned by Riverside Properties and located at 5200 Coffee Drive, when she fell. The stairs were cement, frayed on their edges and lacked a handrail. As a result of her fall, Ms. Couvillion alleges that she sustained the following injuries and damages: internal derangement, disruption and subligmentous herniation of the L3-L4 intervertebral discs; internal disruption and herniation of the L2-L3 intervertebral discs; straightening of the lumbar lordosis ; acute lumbosacral strain ; laceration, contusion and strain of the left knee; and damage to the L2-L3, L4 and L5 nerve roots.

Ms. Couvillion filed a lawsuit against Riverside Properties and XYZ Insurance Company on March 7, 2016, alleging that the sole and proximate cause of her accident was the negligence of Riverside Properties and/or its agents in the following respects: failing to properly maintain their stairways and keep them safe for pedestrian traffic; failing to install handrails on the stairways; failing to provide for the safety of pedestrian traffic; and other acts of negligence to be shown at the trial of this matter.

On March 13, 2017, Riverside Properties filed a motion for summary judgment, accompanied by a memorandum in support of motion for summary judgment. The matter came before the district court for hearing on August 11, 2017. Following arguments by the parties, the court took the matter under advisement, and on September 18, 2017 it issued a judgment granting summary judgment on behalf of Riverside Properties. It is from this judgment that Ms. Couvillion now appeals.

DISCUSSION

Appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining if summary judgment is proper. Kennedy v. Sheriff of East Baton Rouge, 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686.

Summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of a case. La. C.C.P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). The burden of proof remains with the mover, but if the mover does not bear the burden of proof at trial on the issues before the court in the motion for summary judgment, the mover is not required to "negate all essential elements of the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.

In the instant case, Ms. Couvillion submits that there are a number of material factual issues. These include: 1) the stairs were worn; 2) the stairs were required to have handrails; 3) a handrail would have helped the plaintiff; 4) Riverside should have known of the defects in the steps and the lack of a handrail; 5) the damages could have been prevented if Riverside had exercised reasonable care by properly maintaining the steps and by installing a handrail; and 6) Riverside failed to exercise reasonable care. Ms. Couvillion also submitted the affidavit and report of Dr. Fereydoun Aghazadeh, a professional industrial engineer. His report concluded that Ms. Couvillion's injury was due to an unreasonably dangerous condition due to worn out stairs and lack of hand rails.

Louisiana Civil Code Article 2317.1 states:

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

"An owner or custodian of immovable property has the duty to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence; the duty is the same regardless of whether fault is asserted under negligence or strict liability." Banks v. New Orleans Sewerage and Water Board, 98-1373 (La.App. 4 Cir. 1/27/99), 728 So.2d 527, 531. Courts in this state have found that conditions such as lack of a handrail, worn stair tread, and broken steps all create unreasonably dangerous conditions. See Dupre v. The Saenger Arts Center, Inc., 508 So.2d 837 (La.App. 4 Cir. 1987) ; Richardson v. City of Gramercy, 99-1162 (La.App. 5 Cir. 4/25/00), 772 So.2d 682 ; and Cazes v. Parish of West Baton Rouge, 97-2824 (La.App. 1 Cir. 12/30/98), 744 So.2d 54.

In the instant case, Ms. Couvillion has raised a number of issues of fact concerning whether or not an unreasonably unsafe condition existed in the premises where she fell. She has also provided this Court with an affidavit and report of an expert stating that her injuries were caused by such an unreasonably, unsafe condition. She has also identified for this Court law and jurisprudence which supports her position. From our vantage point, it appears that genuine issues of material fact do exist and that the defendants were not entitled to judgment as a matter of law. Accordingly, the district court improperly granted summary judgment in favor of Riverside Properties and against Ms. Couvillion.

CONCLUSION

For the above and foregoing reasons, based on our de novo review of the record in this case, we reverse the district court's granting of summary judgment in favor of the defendants, Riverside Properties and XYZ Insurance Company (and against the plaintiff, Ms. Couvillion). We remand the matter to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      A jurisdictional issue is arguably raised as the judgment does not specify what relief is granted, i.e., it does not provide that plaintiff's claims are dismissed. See La. C.C.P. art. 1841 ; Tomlinson v. Landmark Am. Ins. Co., 2015-0276, p. 2 (La.App. 4 Cir. 3/23/16), 192 So.3d 153, 156. However, it is clear from the petition for damages and the motion for summary judgment (and memorandum in support thereof) that dismissal of plaintiff's claim is the only relief that the district court could have possibly granted. Therefore, we will address the merits of the issue on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Blann KYLE v. BOISE CASCADE COMPANY
    18-384
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2018
    Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPLICANT: Blann Kyle
    J. Michael Nash, Ungarino & Maldonado, LLC, 910 Pierremont Road, Suite 103, Shreveport, LA 71106, (318) 866-9598, COUNSEL FOR DEFENDANT/RESPONDENT: Boise Cascade Company
   Court composed of John D. Saunders, Marc T. Amy. And Candyce G. Perret, Judges.

SAUNDERS, Judge The issues presented in this writ application arise out of a claim for workers' compensation brought by Blann Kyle ("Kyle") against his employer, Boise, alleging that his hearing loss was caused by his employment at Boise's Paper Mill in DeRidder, Louisiana. Kyle retired on June 4, 2010, after being employed at the paper mill since 1976. The 1008 was filed on September 19, 2017.

On January 23, 2018, Kyle filed a motion for expedited hearing pursuant to La.R.S. 23:1121. Kyle alleged that Boise failed to authorize an initial visit with his choice of treating physician, Dr. Brad LeBert, an otolaryngologist. Kyle sought an order from the WCJ directing Boise to authorize the initial visit with Dr. LeBert, to reimburse Kyle for the cost of an audiogram, and to pay two penalties and attorney's fees for Boise's arbitrary and capricious behavior.

Boise opposed the motion and alleged that Kyle's claims were prescribed. Boise also argued that Kyle's request for penalties and attorney's fees in his motion for expedited hearing was an unauthorized use of summary proceedings.

Kyle's motion came for hearing on February 20, 2018. The WCJ took the matter under advisement. On March 9, 2018, the WCJ issued an oral ruling denying Kyle's motion and found that "there is a tenuous link between the alleged hearing loss" and Kyle's employment such that Boise had "good cause for the refusal of the choice of physician." A judgment denying Kyle's motion was signed on April 16, 2018.

Kyle timely filed his notice of intent to seek writs, and the WCJ set a return date of May 16, 2018. This writ application was timely filed.

No trial date has been set.

SUPERVISORY RELIEF

In our sister case, Scott v. Packaging Corp. of America, 18-338, Kyle's counsel contended that the ruling granting Scott's motion for expedited hearing "appears to constitute a final judgment or order 'not requiring further trial on the merits.' " La.R.S. 23:1201.1(K)(8)(a)(i).) Kyle's counsel also cited Ewing v. Hilburn , 11-1243 (La.App. 3 Cir. 3/7/12), 88 So.3d 640, wherein this court reviewed the denial of penalties and attorney's fees based on the employer's refusal to approve treatment by the claimant's orthopedic surgeon of choice. In Ewing , the request for expedited hearing appears to have been the only pleading filed. There is no mention that a 1008 had been filed in Ewing as one had been in the Scott case and the case sub judice. This court has held that a ruling allowing a claimant to replace his choice of physician was an interlocutory order. Dunlap v. Cajun Livestock, LLC , 15-357 (La.App. 3 Cir. 6/10/15), 166 So.3d 1264.

Counsel for Kyle asserts that this court has supervisory jurisdiction in this case because Kyle will suffer irreparable injury if the WCJ's ruling is not reversed.

ON THE MERITS

"Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v. Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted). Additionally, "the determination of whether an employer should be cast with penalties and attorney fees in a workers' compensation case is essentially a question of fact, and 'subject to the manifest error/clearly wrong standard of review.' " Reed v. Abshire , 05-744 p. 4 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224, 1226.

"[G]radual noise induced hearing loss caused by occupational exposure to hazardous noise levels" has been recognized as an occupational disease such that the employee's remedy was in workers' compensation rather than in tort. Arrant v. Graphic Packaging International, Inc. , 13-2878, p. 2 (La. 5/5/15), 169 So.3d 296, 298.

Louisiana Revised Statutes 23:1121 provides that the employee is entitled to select one treating physician in any field or specialty without the approval of the employer and that if the employer denies that right, the employee "shall have a right to an expedited summary proceeding." See also Smith v. Southern Holding Inc. , 02-1071 (La. 1/28/03), 839 So.2d 5. The WCJ "shall order the employer or payor to authorize the claimant's choice of physician unless the employer or payor can show good cause for his refusal." La.R.S. 23:1121(B)(1). Furthermore, pursuant to La.R.S. 23:1201(F), penalties and attorney's fees may be imposed "for failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by [La.]R.S. 23:1121." Youngblood v. Covenant Sec. SVC, LLC , 11-2382, p. 12 (La.App. 1 Cir. 12/21/12), 112 So.3d 233, 241, writ denied , 13-0200 (La. 3/8/13), 109 So.3d 363.

In Deloach v. FARA Insurance Services , 14-408, p. 4 (La.App. 3 Cir. 12/10/14), 154 So.3d 737, 739, this court stated:

The law is clear that to determine if a claim has been reasonably controverted, "a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant." Brown v. Texas-LA Cartage, Inc ., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

Boise alleges that Kyle's claim is prescribed pursuant to La.R.S. 23:1031.1(E), which provides:

All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

The WCJ stated: "[t]here is a tenuous link between the alleged hearing loss and the employment at Boise Cascade Holdings, LLC. The Court finds that based on the evidence presented, that there was good cause for the refusal of the choice of physician. The Court[,] therefore[,] denies the motion for expedited hearing."

Kyle argues that the WCJ had nothing on which to base his finding of good cause since exhibits 1-6 offered by Boise were excluded from evidence, as so much information was redacted that in order for it to be allowed into evidence, there would have to be testimony authenticating it and because the documents were not sufficiently identified. The exhibits were proffered. They are contained in the writ application at pages 43-48. We find that due to the redactions, no useful information can be gleaned from them. Two pages from Kyle's deposition were received into evidence as D-7 without objection. This exhibit is not contained in the writ application. Reportedly, the deposition testimony establishes that Kyle had a hearing test in 2008 or 2009 that showed some hearing loss. We find that this does not establish good cause because it is not enough "to reasonably counter the factual and medical information presented by the claimant." Brown v. Texas-LA Cartage, Inc ., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

What is clear from Boise's argument is that counsel for Boise admits that "we don't know whether [Kyle] ... [is] disabled or not because we haven't completed discovery." Counsel for Boise states that the issue is "if the claim is prescribed, is that good cause to deny the request for the claimant to have his initial choice of physician." But, counsel for Boise also notes that he is not asking the court to rule on prescription because discovery is incomplete.

We find that for the reasons given in the Scott case, the motion for expedited hearing should have been granted in this case. While the WCJ found a "tenuous link," causation is not the issue. In Nelson v. Windmill Nursery of Louisiana, LLC , 04-1941, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, 712, writ denied , 05-2294 (La. 3/10/06), 925 So.2d 516, the court stated that "causation of the alleged accident is not an issue in determining whether an employee has been deprived of the right to see a treating physician of her choice." Then, in Ewing , 88 So.3d 640, this court noted that the burden of proof rests on the employer to establish that the employee's request to see his choice of physician was reasonably controverted. In that case, this court stated that causation was not the issue and, therefore, found that the employer's conclusion that causation did not exist was not enough to constitute reasonable controversy.

Kyle asks this court to reverse the WCJ's ruling and notes that courts "have consistently awarded penalties and attorney fees in circumstances where the employer refuses to authorize at least the initial visit. Kyle does not ask this court to award penalties and attorney's fees. We find that there is no evidence on which to base a finding that Boise reasonably controverted Kyle's request to see Dr. LeBert. Accordingly, we remand this matter for a determination of whether penalties and attorney's fees are appropriate under the facts of this case.

WRIT GRANTED IN PART AND MADE PEREMPTORY. WRIT DENIED IN PART AND REMANDED WITH INSTRUCTIONS. We find that the Workers' Compensation Judge (WCJ) committed manifest error in denying Blann Kyle's motion for expedited hearing and that ruling is hereby reversed. Louisiana Revised Statutes 23:1121 provides that the employee is entitled to select one treating physician in any field or specialty without the approval of the employer and that if the employer denies that right, the employee "shall have a right to an expedited summary proceeding." See also Smith v. Southern Holding Inc. , 02-1071 (La. 1/28/03), 839 So.2d 5. Furthermore, the WCJ "shall order the employer or payor to authorize the claimant's choice of physician unless the employer or payor can show good cause for his refusal." La.R.S. 23:1121(B)(1). The WCJ excluded six exhibits submitted by Boise Cascade Company (Boise) in opposition to the motion for expedited hearing. Two pages of Kyle's deposition testimony were admitted into evidence as D-7 without objection but are not included in the filings in this court. While the WCJ found a "tenuous link," causation is not the issue. Nelson v. Windmill Nursery of Louisiana, LLC , 04-1941, (La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied , 05-2294 (La. 3/10/06), 925 So.2d 516.

Therefore, the motion for expedited hearing is hereby granted, and Boise is ordered to approve and authorize Kyle's choice of physician, Dr. Brad LeBert. The matter is remanded for a determination of whether or not Kyle is entitled to reimbursement of the cost of the audiogram and/or penalties and attorney's fees for Boise's failure to approve and authorize the choice of physician and for the failure to reimburse the cost of the audiogram or whether Boise reasonably controverted Kyle's request to see Dr. LeBert.

      This was three days before the hearing in the Scott case which is currently before this court under Docket Number: 18-338.

      The ruling in Scott was made on February 23, 2018, but a judgment was not signed until March 21, 2018.


author: AMY, Judge.

text:
    Clarisse ARMSTEAD, et al. v. MULTI-CHEM GROUP, LLC, et al.
    17-988 17-985 17-986 17-987 17-989 17-990 17-991 17-992
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Richard G. Duplantier, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANTS/APPELLANTS: Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, Aaron Gauthier
    Robert deLoney Downing, 8201 Jefferson Highway, Baton Rouge, LA 70809, COUNSEL FOR PLAINTIFFS/APPELLEES: Clarisse Armstead, et al.
    David Wynne, Wynne & Wynne, 1415 Louisiana Street, Suite 3900, Houston, TX 77002, (713) 227-8835, COUNSEL FOR PLAINTIFFS/APPELLEES: Clarisse Armstead, et al.
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

For the reasons provided in the consolidated appeal of Robert J. Broussard, et al. v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), --- So.3d ----, the awards to Sheral Iles, Julia Tillman, Adam Curley, Dorothy Lopez, and Clarisse Armstead for mental anguish resulting from the fear of developing cancer are reversed. The remainder of the award is affirmed. Thus, the judgment is partially recast as to those plaintiffs and rendered, in part, as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment herein in favor of plaintiff, SHERAL ILES , and against defendants, MULTI-CHEM GROUP, LLC, et al condemning said defendants to pay unto plaintiff, SHERAL ILES the full sum of $11,431.75 ($4,039.75 in medical expenses; $392.00 in lost wages; and $7,000.00 in general damages).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment herein in favor of plaintiff, JULIA TILLMAN , and against defendants, MULTI-CHEM GROUP, LLC, et al condemning said defendants to pay unto plaintiff, JULIA TILLMAN the full sum of $5,000.00 ($5,000.00 in general damages).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment herein in favor of plaintiff, ADAM CURLEY , and against defendants, MULTI-CHEM GROUP, LLC, et al condemning said defendants to pay unto plaintiff, ADAM CURLEY the full sum of $5,000.00 ($5,000.00 in general damages).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment herein in favor of plaintiff, DOROTHY LOPEZ , and against defendants, MULTI-CHEM GROUP, LLC, et al condemning said defendants to pay unto plaintiff, DOROTHY LOPEZ the full sum of $2,573.00 ($2,500.00 in general damages and $73.00 in medical expenses).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment herein in favor of plaintiff, CLARISSE ARMSTEAD , and against defendants, MULTI-CHEM GROUP, LLC, et al condemning said defendants to pay unto plaintiff, CLARISSE ARMSTEAD the full sum of $2,000.00 ($2,000.00 in general damages).

The judgment is thereafter affirmed as amended. Costs of this proceeding are assessed to the defendants-appellants, Multi-Chem Group, LLC, Cade Bourque, John Gauthier, Nathan Walker, and Aaron Gauthier.

REVERSED IN PART; AFFIRMED AS AMENDED AND RENDERED.


author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Antonio GALLAGHER
    NO. 2018-K-0183
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 7, 2018
    Lena Hinton, Orleans Parish Public Defenders, 2601 Tulane Avenue, Seventh Floor, New Orleans, Louisiana 70119, COUNSEL FOR DEFENDANT/RELATOR
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Orleans Parish, 619 S. White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA/RESPONDENT
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

Relator/defendant, Antonio Gallagher, seeks supervisory review of the district court's February 21, 2018 ruling denying his motion to withdraw guilty plea and motion for evidentiary hearing. For the following reasons, we vacate the district court's ruling and remand to district court Section "G" for an evidentiary hearing on defendant's motion to withdraw guilty plea.

PROCEDURAL BACKGROUND

On April 1, 2014, defendant was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:497(B)(1). On April 4, 2014, defendant appeared for arraignment and entered a plea of not guilty. Defendant filed a motion to suppress statements and evidence, inventory of discovery, and motion to compel production of discovery and exculpatory information. On May 8, 2014, defendant appeared with counsel for hearing on motions, which was continued on joint motion to allow additional time to work on a plea agreement. On May 14, 2014, defendant appeared for hearing with counsel and declined the plea offer from the State.

On September 2, 2014, defendant was released on bond; but, defendant subsequently failed to appear for a hearing to determine counsel. When defendant did not appear at the bond forfeiture hearing, held on September 15, 2014, the district court granted the bond forfeiture and issued an alias capias. On April 11, 2016, defendant was arrested pursuant to the capias.

On December 9, 2016, defendant signed a written agreement with the State, entitled "Memorandum of Understanding" ("MOU"). Under the terms of the MOU, defendant agreed to plead guilty as charged and to obligate himself to further terms and conditions; in exchange for his guilty plea, and "upon successful completion" of defendant's obligations set forth therein, the State agreed to waive all minimum mandatory sentences for the charged offense and to request a sentence of 15 years, suspended, with five years active probation. In addition, the MOU provided that defendant's refusal to comply with his obligations under the agreement would result in the cancellation of the State's obligations. The MOU was signed by defendant, his defense counsel, and an assistant district attorney.

On that same date, December 9, 2016, defendant appeared before Section "A" with counsel, withdrew his prior plea of not guilty, and entered a plea of guilty as charged. The record reflects that the State informed the district court that defendant was pleading guilty in exchange for an agreed-upon sentence of 15 years suspended, five years active probation, and no multiple bill in this case. The transcript of the hearing does not reveal any mention of the terms and conditions of the MOU agreement between defendant and the State. The district court then questioned defendant with regard to the waiver of his constitutional rights, pursuant to Boykin , and accepted defendant's plea as being knowing, intelligent, and voluntary. The district court then released defendant pending sentencing, which was set for February 3, 2017.

On February 3, 2017, defendant failed to appear for sentencing; and the district court issued an alias capias. On June 26, 2017, defendant was arrested pursuant to the capias. On July 14, 2017, defendant appeared for sentencing and requested a continuance, which was granted by the district court.

On October 27, 2017, defendant filed a motion to withdraw guilty plea and a motion to set matter for evidentiary hearing. The State filed a response on November 20, 2017. On January 12, 2018, the parties appeared for a hearing on defendant's motions. At the hearing, defense counsel sought to call defendant's prior counsel, who was presently serving as the district court's law clerk, as a witness in support of the motion to withdraw guilty plea. After discussion with the district court, regarding the basis for defendant's motion to withdraw guilty plea and defense counsel's intent to call defendant's prior counsel as a witness, the district court recused itself and ordered the case to be re-allotted for a hearing on defendant's motion to withdraw guilty plea. Thereafter, defendant's motion to withdraw guilty plea was re-alloted to Section "G."

On February 21, 2018, Section "G" heard arguments regarding defendant's motion to withdraw guilty plea. Following argument, the district court denied defendant's motion to withdraw guilty plea. Defendant objected and noticed his intention to seek supervisory review.

Defendant timely filed the instant writ application and requested a stay of sentencing, which was granted by this Court. Subsequently, this Court ordered a response from the State, which filed its opposition to defendant's writ on May 1, 2018.

DISCUSSION

Defendant now seeks review of the district court's denial of his motion to withdraw guilty plea and motion for evidentiary hearing. Defendant argues that his guilty plea was constitutionally infirm because he was induced to plead guilty by the plea bargain (a 15 year sentence, suspended, five years active probation, and no multiple bill in this case), which the State has not upheld. Defendant argues that he entered his guilty plea based on his understanding of the terms of the contractual MOU agreement, which he asserts he upheld; and he argues that the State has the burden to prove defendant's breach of the MOU agreement before cancelling its own obligation to uphold the plea bargain. Defendant further argues that he is entitled to an evidentiary hearing at which he can present testimony to show the constitutional infirmity of his guilty plea due to vice of consent in entering the MOU agreement.

Pursuant to La. C.Cr.P. art. 559, [t]he court may permit a plea of guilty to be withdrawn at any time before sentence." However, there is "no absolute right to withdraw a previously entered plea of guilty." State v. Pichon , 96-0886, p. 2 (La. App. 4 Cir. 11/20/96), 684 So.2d 501, 502. "The withdrawal of a guilty plea is within the discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised." State v. Rhea , 04-0091, p. 3 (La. App. 4 Cir. 5/19/04), 876 So.2d 131, 133-34 (citing State v. Johnson , 406 So.2d 569 (La. 1981) ).

For a guilty plea to be valid, the record must show that defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against compulsory self-incrimination. Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ;

State ex rel. Jackson v. Henderson , 260 La. 90, 255 So.2d 85 (1971). "However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and waiver of the basic triad of rights." Rhea , 04-0091, pp. 3-4, 876 So.2d 131, 134. "In determining whether the defendant's plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision." Pichon , 96-0886, p. 2, 684 So.2d at 503.

In the present case, the transcript of the guilty plea colloquy, on December 9, 2016, shows that defendant agreed to plead guilty as charged in exchange for an agreed-upon sentence of 15 years, suspended, with five years active probation, and an agreement that the State would not file a multiple bill in this case. The transcript reflects that defendant was properly informed of and waived his constitutional rights pursuant to Boykin . However, we note that the district court did not inform defendant of the possible sentence he could receive if found guilty of the charged offense or that he could receive a life sentence if the State filed a multiple bill and he were found guilty and sentenced as a quadruple offender. In addition, we note that the guilty plea transcript does not indicate any terms and conditions of the MOU agreement between defendant and the State.

In his motion to withdraw guilty plea, defendant does not argue that his plea was not knowingly and intelligently made pursuant to Boykin . Rather, defendant argues that his guilty plea was constitutionally infirm because he was induced to plead guilty by a plea bargain that was not kept by the State. Defense counsel explained defendant's argument and allegations at the first hearing on defendant's motion to withdraw guilty plea and motion for evidentiary hearing before Section "A"; the transcript of that January 12, 2018 hearing reflects the following:

THE COURT:
And your motion is to withdraw the guilty plea based on?
DEFENSE COUNSEL:
Based on it not being knowingly, intelligently, and voluntarily made. And in addition to that based upon there needing to be a determination of fact whether or not a breach occurred in the contract that was ancillary to that plea agreement.
THE COURT:
Okay.
DEFENSE COUNSEL:
And so, Your Honor, with all that being said I did --
THE COURT:
Because I don't think he's entitled to have his plea withdrawn, but in the other sense I just assume (sic) him -- -- because I really don't think there is some clear understanding going on with your client. He was at large after a guilty plea awaiting sentencing cooperating with the authorities, and he made that agreement with the State. And now he's saying he didn't understand an ancillary agreement, but you're asking to withdraw. So he's due for sentencing today.
DEFENSE COUNSEL:
He is due for sentencing.
THE COURT:
On his guilty plea with this Court which would be a fifteen year sentence as he agreed to as a double offender; am I correct?
DEFENSE COUNSEL:
That's correct, Your Honor.
THE COURT:
From everything I've reviewed, because I've reviewed -DEFENSE COUNSEL:
And so -- go ahead.
ASSISTANT D.A. (THE STATE):
And actually. Judge, I just want to clarify that I think the original plea agreement was for a suspended sentence. Mr. Gallagher is actually a quadruple offender. Mr. Gaudin -
THE COURT:
It was going to be suspended with his cooperation,
THE STATE:
Yes, and if Mr. Gallagher wanted to -
THE COURT:
And without cooperation his sentence would be fifteen years.
THE STATE:
Yes, but now he's eligible for a quadruple bill.
DEFENSE COUNSEL:
And, Your Honor, that's part of the issue is whether it was clear in that contract that that was the agreement, and so that determination of fact is up to Your Honor.
THE COURT:
But I think what he pled to with the Court was a fifteen year sentence.
DEFENSE COUNSEL:
Suspended, Judge, and with five years' probation.
THE STATE:
Subject to him cooperating.
DEFENSE COUNSEL:
Right.
THE COURT:
And he's picked up on new charges?
DEFENSE COUNSEL:
No.
THE STATE:
Well, so subject to him cooperating, but also I think there's a clear provision in the Memorandum of Understanding which says he also agrees to attend any and all court settings which the Record clearly shows he didn't do because Your Honor issued a capias for him.
THE COURT:
Because he didn't come to court.
THE STATE:
And then several months went by, and the only reason he's back now is because he was arrested.
THE COURT;
On the capias or a new charge?
THE STATE:
On Your Honor's capias. There was no new charge as far as I'm aware of.
THE COURT:
Okay, all right.
DEFENSE COUNSEL:
And, Your Honor, all that has to do with the facts that will be presented at a hearing to determine whether or not he agreed upon -- if he complied with and did do his part in the agreement that was made between he and the State. And that can only be determined by calling people who were privy to that information.
THE COURT:
What's interesting about that is you're calling his prior lawyer, which is my law clerk, instead of calling the federal agent that he was supposed to be cooperating with.
DEFENSE COUNSEL:
Well, Your Honor, it was my intention to file a motion to recuse on the basis that that may be an issue with this Court in making a determination about the details of that contact.
THE COURT:
But you have not filed a motion to recuse.
DEFENSE COUNSEL:
Your Honor, may we approach?
THE COURT:
Not yet. I'm putting his business on the street because that's what we need to talk about.
DEFENSE COUNSEL:
Right, and it was my request to the Court to have this done at a closed setting because of the sensitive nature of it.
THE COURT:
Absolutely not because apparently the problem now is there was a closed, in chambers discussion apparently off the Record with Mr. Gaudin and the defendant represented by counsel in which a Memorandum of Understanding between the Defendant and the State was talked about. The Court was not privy to or apart of any agreement he made with the State. So we come outside, he enters a guilty plea, and now basically he's saying what he pled to was an infirmed guilty plea not based on what I've even read of his Boykin in this court but based on what he has understood with the State.
DEFENSE COUNSEL:
Correct.
THE COURT:
That's what he's complaining about.
DEFENSE COUNSEL:
Correct, Your Honor, because that plea agreement was contingent upon the actions of Mr. Gallagher and the State in a contract that was made based upon that plea.
THE COURT:
All right, so are you alleging that he fulfilled his end of the agreement with the State?
DEFENSE COUNSEL:
I'm alleging that he performs specific performance, if I could use civil law terms, and he did --
THE COURT:
Cause that's what we're talking about. This is a contract issue.
DEFENSE COUNSEL:
It is, Judge.
THE COURT:
But you've raised it as an infirmed guilty plea because he didn't -- because it's constitutionally infirmed, but I don't see that in the transcript and the questions and the Boykin form.
DEFENSE COUNSEL:
It wouldn't be reflected in the Boykin form, Judge.
THE COURT:
Ah.
DEFENSE COUNSEL:
It would be reflected in the contractual agreement that in accordance with the new law it allows the Court to look at the contractual agreement between the State and the Defendant using civil law but broader because a constitutional liberty is at play here. His loss of freedom is at play here. And so as I read what I enumerated in my memo the Court has to make the determination of fact based upon that contract to see if either party breached the agreement to make a determination whether or not the plea was constitutionally infirmed, and that's how I read it. And so I'm asking the Court to --
THE COURT:
But if I just allow him to withdraw his guilty plea -- isn't he facing life?
DEFENSE COUNSEL:
Judge, he has a case in "G" that he is facing.
THE COURT:
Is he facing life?
THE STATE:
Yes.
DEFENSE COUNSEL:
Yes.
THE COURT:
Wow, why don't I just let him do that? You're facing fifteen years, and that's what this is about versus life? Am I clear on that?
DEFENSE COUNSEL:
You are clear. His case in "G" is a possession with intent to distribute cocaine, but he still has a right to trial is what we're arguing.
THE COURT:
So the issue would be -- I'm going to recuse myself for purposes of this hearing only so that you can call my law clerk, but it won't be a permanent recusal.
DEFENSE COUNSEL:
So --
THE COURT:
And then you can make the additional motion later if there's something that you think has affected -- the infirmity with this constitutional plea is based on the agreement between him and the State.
DEFENSE COUNSEL:
Correct, Judge.
THE COURT:
Not based on what occurred in the court.
DEFENSE COUNSEL:
Correct.
THE COURT:
At his guilty plea.
DEFENSE COUNSEL:
Correct, but they are part in parcel because they're connected.
THE COURT:
Right, but my recusal would only be based on his lawyer having been --
DEFENSE COUNSEL:
A party to the contract.
THE COURT:
Which is now my law clerk. Okay. Of course, State, why wouldn't I just let him withdraw all this, and you all now can proceed to convict him if you so choose?
THE STATE:
Because, Judge, it's the State's position that -
THE COURT:
What do y'all want to do? Do y'all think he needs to be sentenced to fifteen years?
THE STATE:
Yes, Judge. The agreement -
THE COURT:
I don't know what the M.O.U. says. Apparently I had a copy, but I've never seen it.
THE STATE:
I think Your Honor, and I don't know if I'm speaking out of place, but I think Mr. Gaudin actually attached it to his response.
THE COURT:
I know, and I've lost the whole thing.
THE STATE:
I'll have him provide you another copy.
THE COURT:
So I haven't read that. I haven't read the M.O.U., and I think it's almost better because I wasn't a party to it.
THE STATE:
Well, I have a copy of it right now if you would like to see it-
THE COURT:
Why don't you tell me what you all think he should be sentenced to if he's in violation of your agreement?
THE STATE:
Judge, at this point he has entered a guilty plea as charged to both cases, and is subject to multiple billing as a multiple offender. Now, the State agreed to waive the multiple bill and agreed to a suspended sentence under 890.1 which he wouldn't even have been eligible for because he's a quadruple offender.
THE COURT:
So now you all just want to consider this a guilty plea, and he's eligible for multiple billing?
THE STATE:
Yes, and the reason that he's not entitled to --
THE COURT:
I didn't understand that from Mr. Gaudin. I thought he was suggesting that this should be a fifteen year sentence, and he was going to file a multiple bill.
.....
THE STATE:
Judge, Mr. Gaudin would obviously have more information than I would, but I believe in my discussions with him that the State alleges he did nothing.
THE COURT:
See, that's where -
THE STATE:
Including failing to appear for court which he is required to do under provision five of the Memorandum of Understanding.
THE COURT:
Okay, I'll let another judge hear this so that they can determine all the different details that need to be sorted out, so I'm recusing for purposes of this hearing. What's the title of the pleading? Motion to withdraw his guilty plea?
DEFENSE COUNSEL:
Motion to withdraw guilty plea.
THE COURT:
All right, I'll let another judge handle that motion. Be careful what you ask for, sir.

Thereafter, defendant's motion to withdraw guilty plea was transferred to Section "G." At the February 21, 2018 hearing, defense counsel argued that it was necessary to have an evidentiary hearing to present testimony and evidence in support of defendant's argument that his guilty plea was constitutionally infirm. However, after reviewing the MOU agreement and the Boykin transcript of December 9, 2016, the district court denied defendant's motion to withdraw guilty plea.

The record of the two hearings reflects that defendant argues he was induced to plead guilty by the plea bargained sentence of 15 years, suspended, with five years of probation and no multiple bill, and the State is not honoring that plea bargain. Defendant argues that he is entitled either to specific performance of the plea agreement or withdrawal of his plea. However, the State argues that defendant knowingly and voluntarily entered into the MOU agreement with the State, as reflected by the signatures of defendant and his defense counsel; that defendant agreed to abide by those obligations as part of his plea agreement; that defendant failed to comply with his obligations under the MOU agreement; and, accordingly, the State is no longer obligated to its agreement not to charge defendant as a multiple offender.

In discussing the importance and validity of plea bargain agreements, the Louisiana Supreme Court recently stated, "[a]s a general matter, in determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to analogous rules of contract law, although a defendant's constitutional right to fairness may be broader than his or her rights under the law of contract."

State v. Karey , 16-0377, p. 4 (La. 6/29/17), 232 So.3d 1186, 1190 (citations omitted). "When a district attorney or assistant district attorney makes a good faith bargain with a person accused of a crime and the defendant, in reliance on that bargain, relinquishes a fundamental right, the State cannot repudiate the bargain." Id.

In addition, it is well established that a guilty plea may be withdrawn or set aside when the facts surrounding the guilty plea show it to be constitutionally infirm. State v. Foster , 17-0290, p. 5 (La. App. 4 Cir. 7/12/17), 224 So.3d 440, 442 ; State v. Dixon , 449 So.2d 463 (La. 1984). A guilty plea is constitutionally infirm when the terms of the plea agreement are not honored or a defendant is induced to enter that plea by what he justifiably believes was a plea bargain, and that bargain is not kept. Foster , 17-0290, p. 5, 224 So.3d at 442-43. "In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly." Dixon , 449 So.2d at 464. Consequently, "[w]hen a plea agreement is breached, the defendant has the option of specific performance of the agreement or nullification or withdrawal of the plea." State v. Epperley , 14-0259, p. 20 (La. App. 4 Cir. 10/2/14), 151 So.3d 721, 735.

In consideration of defendant's argument that the facts surrounding his guilty plea show it to be constitutionally infirm, we find that the district court abused its discretion in denying defendant's motion to withdraw guilty plea without allowing defendant to present testimony and evidence of such facts. The record indicates that Section "A" recused itself based, implicitly at least, on a finding that the testimony of the Section "A" law clerk, in relation to her work as defendant's former counsel, would be necessary for the determination of whether defendant's guilty plea was constitutionally infirm. However, Section "G" denied defendant's motion to withdraw guilty plea based solely on its review of the transcript of defendant's guilty plea colloquy, which he does not contest, and a copy of the MOU agreement, the terms and validity of which defendant contests under the laws of contract. Since Section "G" did not take any further evidence or make any determination as to the validity of the MOU agreement or the parties' compliance with that agreement in relation to defendant's guilty plea, we find the record insufficient to review defendant's claim that his guilty plea is constitutionally infirm.

For the reasons stated above, we grant defendant's writ, vacate the district court's denial of defendant's motion to withdraw guilty plea, and remand this matter to Section "G" for an evidentiary hearing regarding the validity, terms, and parties' compliance with the MOU and then to determine whether defendant has established that his guilty plea was constitutionally infirm.

WRIT GRANTED; REMANDED; STAY LIFTED

LOBRANO, J., CONCURS IN THE RESULT.

      The underlying facts related to the charge are not relevant to the matter under review.

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

      On two subsequent dates, defendant appeared for sentencing and requested continuances, which were granted by the district court.


author: PITMAN, J.

text:
    Holli Henry MERCER, Plaintiff-Appellant v. Tommy O. MERCER, Defendant-Appellee
    No. 52,101-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018 Rehearing Denied April 27, 2018
    KNIGHT LAW FIRM, LLC, By: Robert Thomas Knight, Madisonville, Counsel for Appellant
    MIXON & CARROLL, PLC, By: Rossanna Rahim McIlwain, Columbia, Counsel for Appellee
    Before BROWN, PITMAN, and GARRETT, JJ.
   PITMAN, J.

Plaintiff Holli Henry Mercer appeals the judgment of the trial court which modified a 2009 considered decree of child custody, equally dividing the time of physical custody of the child between Plaintiff and her ex-husband, Defendant Tommy O. Mercer, and designating Defendant as the domiciliary parent. For the following reasons, we affirm.

FACTS

Plaintiff and Defendant married on December 31, 2005, in Mangham, Louisiana. Their son, Dalton H. Mercer, was born on March 26, 2008. The parties separated in July 2008; and, on August 15, 2008, Plaintiff filed a petition for divorce and sought custody of their then four-month-old child.

In 2009, a two-day trial was held to determine the custody of Dalton. The trial court issued a 24-page ruling that named Plaintiff the domiciliary parent from September through May. Defendant was given visitation every other weekend during the school year and split time during the holiday period. During the summer months of June, July and August, Dalton primarily resided with Defendant, and Plaintiff was granted visitation every other weekend. During the course of the next few years, the every-other-weekend visitation period was extended from Friday night until Tuesday.

In August 2016, Defendant filed a petition to modify custody to an even 50/50 time split. In support of his petition, he alleged that Dalton was now 8 years old and entering third grade for the 2016-2017 school year. He also alleged that he had remarried, to Christina Mercer, and that together they have a son, Dillon, who was born in 2011 and would be attending Mangham Elementary for the 2016-2017 school year. He further alleged that he and Christina have, and will continue to provide, an excellent home environment for Dalton, where he can spend time with his younger brother. He complained that Plaintiff had unilaterally changed Dalton's school enrollment from Start Elementary to Family Christian Community School ("FCCS") in Winnsboro and that he wants custody of Dalton to enroll him in Mangham Elementary with his younger brother so that Dalton can spend more time with him and his family.

A conference was held before a hearing officer in September 2016. Prior to the close of the evidence, Plaintiff raised an exception of no right of action and claimed that Defendant's evidence did not meet the standard set forth in Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986). The hearing officer recommended that the petition to modify custody be denied.

Defendant objected to that recommendation and asked that the matter be set for trial. Plaintiff also filed an objection to the hearing officer's report and contended that she objected to Defendant having a four-day weekend period from Friday until Tuesday. She claimed the visitation was disrupting to the minor child and his school, that his grades had fallen and his behavior was becoming worse. She asked that, at a maximum, Defendant be awarded visitation only every other weekend from Friday until Sunday and that the schedule be followed year round. If implemented by the trial court, this suggested visitation plan would have effected an extreme deviation from the considered decree rendered in 2009 since, under the considered decree, Defendant has custody of the child during the summer months and Plaintiff only has visitation during that time period.

The trial was held on March 6, 2017. Plaintiff reurged her exception of no right of action. The trial court took the exception under advisement and allowed the trial to proceed.

At the trial, Molly Govener was called as an expert witness, who testified that she is a licensed professional counselor with a Ph.D. in marriage and family therapy. She testified that she had met with Plaintiff and Dalton in regard to the custody case and that Plaintiff had reported to her seeing "some anger in Dalton that was not normal" and some indications of stress. She stated, however, that she had observed nothing of any significance in either parent's home that would concern her. She did opine that the current custody plan was working out and that Dalton had told her he liked the custody plan and liked to visit his dad. She stated that he "prefers that his main home be with his mom" and seems well adjusted to the current schedule. She further opined that Dalton should be allowed to continue to live primarily with Plaintiff and visit Defendant and that the two parents should be in some type of family therapy.

Defendant testified regarding the allegations in his petition to modify custody and reiterated the facts that he had remarried, that he had a son by his second marriage, that Dalton loves his brother and that Defendant is willing and able to spend more time with Dalton than he was previously able to in 2010. He also testified that he believed Mangham Elementary would be a better school for Dalton for several reasons, including that he would be comfortable there with his younger brother and that he would be able to spend more time with his father's family. He admitted that since the rendition of the considered decree, he had been brought to court over allegations of unpaid child support, at one time as much as $11,000, but that he has paid the balance and that he was current for the two years prior to trial.

Defendant was questioned regarding his decision to change Dalton's school for a third time if he should obtain custody. Although he agreed he did not know which school was the better one, he stated that Dalton's grades were good and had not slipped as a result of Plaintiff changing his school. He discussed his living and work history and stated that he had worked at a plumbing company for two years, then left to go back to a land rig for a year and a half. He currently works for Mercer Air Conditioning, which is owned by his brother.

George Broadway, Defendant's stepfather, testified that he has known Defendant since he was three years old and that he had been aware of the custody issue in this case since it began in 2009. He stated that he sees Defendant two or three times a week and has observed him spending time with Dalton, especially since Dalton has gotten older. He stated, for example, that Defendant coaches Dalton's ball team and takes him hunting. He also stated that he has never seen Defendant abusing or neglecting Dalton. He testified that he had observed Christina interacting with Dalton and Dillon and stated that, from a parental standpoint, she treats both children the same. He noted that he has seen Christina helping Dalton with his homework.

Christina Mercer testified that she was comfortable with Dalton spending more time in her home and that it would not cause any burden, financial or otherwise, on the family. She stated that she is self-employed and is able to drive him to school and pick him up. She testified that they live in a three bedroom, two-bath home and that the two boys share a room with bunk beds.

Plaintiff testified about all the things she does for Dalton and that Defendant and Christina had spoken to Dalton about the legal proceedings and attempted to influence him, telling him he "better at least choose 50/50." She testified that this causes great stress for Dalton, as does Defendant's telling him about his child support payments to her. She stated that he did not pay any schooling expenses at FCCS and has not paid any of Dr. Govener's expenses. She also stated that Dalton has told her that Defendant and Christina fight and that Defendant sometimes leaves the marital residence to stay elsewhere. She testified that FCCS provides a religion class, which Mangham Elementary does not, and that Dalton is very happy in his school and has made new friends.

In October 2017, the trial court rendered a judgment denying Plaintiff's exception and changing the custody arrangement to a joint custody 50/50 time split. Defendant is named as the domiciliary parent, with custody to be shared in two-week increments. The trial court issued extensive and thoughtful reasons for the judgment, which explained in great detail why it decided to change custody. The reasons included a recitation of the circumstances which had changed since the considered decree was rendered, as well as a detailed consideration of all relevant factors found in La. C.C. art. 134, which it deemed indicated an advantage outweighing any detrimental effect the change would have on the child.

Although some factors were deemed to be equal between the parents, the trial court found Defendant was currently employed and was able to provide the child with food, clothing, medical care and other material needs, whereas Plaintiff testified that she had been unemployed for at least a year and was seeking part-time employment. She presented no evidence of having any income with which to provide for herself or the child or to pay for school expenses, and she was currently living with a male companion.

The trial court also found that the factor regarding the length of time the child lived in a stable, adequate environment and the desirability of maintaining continuity of that environment heavily favored Defendant in that he had been remarried for six years, had a son by a second marriage and had included Dalton in his new family unit for regular, extended periods of physical custody in the past years. On the other hand, it found that Plaintiff had moved out of her parents' home where she resided for a long portion of Dalton's life and was now living in a home with a male companion in residence, whom she has no present plans to marry. For these reasons, it also found that the factor relating to the permanence, as a family unit, of the existing or proposed custodial home favored Defendant.

The trial court concluded:

This Court finds that the circumstances of the custodial situation have clearly changed, and that the major reasons cited by Judge McIntyre for naming Holli as domiciliary parent either no longer existed or no longer weigh in favor of Holli to the extent they did in 2009. Under the present circumstances existing in this matter, both parents are almost equally suited to be the domiciliary parent, and the Court finds that dividing the custody of Dalton equally between them will, under the specific circumstances of this case, serve the best interests of the minor child as he continues to grow and mature.

Plaintiff has filed this appeal seeking review of the trial court's decision and claims there was no clear and convincing evidence presented showing that the advantages of a change in the custodial arrangement substantially outweighed any harm likely to be caused by such a change.

DISCUSSION

Plaintiff argues that the trial court erred in modifying a Bergeron custody decree when the main reason for modification was that the father testified he had more time to spend with his child and in modifying a considered decree to a shared custody with the father as domiciliary parent when there was no proof of detrimental effect on the child. She contends that none of the evidence presented at trial would lead a reasonable person to conclude that a change of custody was warranted under the circumstances. She argues that Dalton is very happy with the custody situation as it stands; that Defendant has put undue pressure on the child to express a wish that custody be shared 50/50; that she has been the provider for his educational, medical, dental and religious needs; and that Defendant fell $11,000 behind in child support payments during the eight-year period between the considered decree and the petition to modify custody.

In support of her arguments, Plaintiff cites Bergeron , supra , for the proposition that when a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. She argues that when a party seeks to change custody rendered in a considered decree, the person seeking a modification must show not only that a change of circumstances materially affecting the welfare of the child has occurred since the prior order of custody, but that the modifying parent must also meet the burden of proof set forth in Bergeron . She asserts that these facts show a clear abuse of discretion in the ruling made by the trial court and also show that Defendant failed to meet the burden of proof set forth in Bergeron . For these reasons, she seeks reversal of the order of the trial court.

Defendant argues that custody determinations are made on a case-by-case basis, and the trial court has vast discretion in deciding the matters of child custody and visitation. The discretion is based on the trial court's opportunity to better evaluate the credibility of the witnesses. As long as its factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse even though convinced it would have weighed the evidence differently if acting as the trier of fact.

Defendant also argues that the trial court's reasons for judgment showed that it considered and outlined the applicable law, analyzed the testimony offered into the record and applied the testimony and the evidence to each one of the best-interest-of-the-child factors. It concluded that it was in Dalton's best interest to modify custody to give both parties joint shared custody with equal time allocated based on a two-week/two-week rotation and to designate Defendant as the domiciliary parent.

In Bergeron , supra , the Louisiana Supreme Court determined that when a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is "so deleterious to the children as to justify removing them from the environment to which they are accustomed." However, in Mulkey v. Mulkey , 12-2709 (La. 5/7/13), 118 So.3d 357, the court stated that while the heavy burden of proof in custody modification cases was justified for several reasons, the court was convinced that in a narrow class of cases, a modification of custody might be in the child's best interest even though the moving party is unable to show that the present custody is deleterious to the child. The court recognized that the heavy-burden-of-proof rule could inflexibly prevent a modification of custody that is in the child's best interest. For that reason, the court quoted Bergeron and restated the burden of proof as follows:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.
Thus, when a party seeks to change custody rendered in a considered decree, the proponent of change must not only show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she must also meet the burden of proof set forth in Bergeron .

Mulkey , supra .

Having determined what the new burden of proof was to be, the Mulkey court stated that it agreed with the trial court's finding that a material change in circumstances had occurred since the considered decree was rendered and that the dynamics of both households had changed. At that point, the court stated that it considered whether the burden of proof of Bergeron was met, i.e., the narrow issue presented was whether the moving party proved by clear and convincing evidence that the harm likely to be caused by a change of custody naming him as domiciliary parent was substantially outweighed by its advantages to the child.

Every child custody case must be viewed based on its own particular facts and relationships involved, with the goal of determining what is in the best interest of the child. The determination of the trial court in child custody matters is entitled to great weight, and its discretion will not be disturbed on review in the absence of a clear showing of abuse. Mulkey , supra .

In the case at bar, the trial court found, and stated in its reasons for judgment, that a change of circumstances materially affecting the welfare of the child had occurred since the 2009 order was rendered. Dalton was only four months old when Plaintiff first petitioned the court for custody. He is now nine years old. Plaintiff lived with her parents for many years while Dalton was young, and Defendant was away from home working for long stretches of time. Defendant has remarried and has a wife and new son, and they live in a stable environment where he will be able to spend more time with Dalton. Clearly, a change of circumstances has occurred which would warrant revisiting a custody order rendered almost ten years earlier.

Further, it was incumbent upon Defendant to prove by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. The trial court's reasons for judgment recite why Defendant would be able to provide advantages to his son over those currently being provided by Plaintiff and why it determined that Defendant would be a better domiciliary parent. Specifically, it noted that Defendant was better able to provide the child with food, clothing, medical care and other material needs, the length of time the child lived in a stable, adequate environment and the desirability of maintaining continuity of that environment, and the permanence as a family unit of the existing or proposed custodial home. It also mentioned that in regard to the moral fitness of each party as it affects the welfare of the child, Plaintiff exhibited a greater negativity to Defendant than does he to her.

Of all the factors considered in the reasons for judgment, eight were considered to be equally favorable to both parties, but four specifically were weighted in favor of Defendant. None were specifically weighted in Plaintiff's favor. Therefore, although the trial court stated that "both parents are almost equally suited to be the domiciliary parent," its reasons for judgment indicate that it considered the advantages to naming Defendant domiciliary parent outweighed any harm likely to be caused by a change of environment.

The trial court thoughtfully considered all of the trial testimony and evidence and set forth in great detail the reasons why a change in custody was justified and in Dalton's best interest. We find the record supports the trial court's finding that Defendant has met the burden of Bergeron , supra , and Mulkey , supra , by proving by clear and convincing evidence that circumstances have changed and that any harm caused by a modification of the considered custody decree would be substantially outweighed by its advantages to Dalton.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Defendant Tommy O. Mercer is affirmed. Costs of appeal are assessed to Plaintiff Holli Henry Mercer.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, C.J., dissents

In a 2009 considered decree rendered by Judge McIntyre, the mother was named the domiciliary parent during the school year and the father the primary parent during the summer. The father's every other weekend visitation was from Friday to Tuesday and he had half of all holidays.

In 2016, the father filed a petition to modify custody to a 50-50 time split. A conference was held before a hearing officer, who recommended that the petition to modify be denied. A counselor and family therapist said that the child was comfortable and well-adjusted with the current custody schedule.

The trial judge (Judge Dean) recognized that the 2009 ruling was a considered decree and that Bergeron applied.

After considering the La. C.C. art. 134 factors, which he believed were mostly equal, the judge stated in his opinion:

Under the present circumstances existing in this matter, both parents are almost equally suited to be the domiciliary parent, and the court finds that dividing the custody of Dalton equally between them will, under the specific circumstances of this case, serve the best interests of the minor child as he continues to grow and mature. (Emphasis added).

I respectfully dissent from the majority opinion because the modification of custody undermines the standards imposed by Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). See also Mulkey v. Mulkey, 12-2709 (La. 05/07/13), 118 So.3d 357, 368. The child in this case benefits from the fact that he has two parents who care for him and are willing and able to provide a good home for him. As stated by the trial court, "both parents are almost equally suited to be the domiciliary parent." The evidence reveals that there are advantages and disadvantages relative to the situation of each parent, and, in my opinion, when these are balanced, the decision as to who is best suited to be the domiciliary parent in this case is effectively a draw. The closeness of this matter is readily evidenced by the differences in the decisions reached by the hearing officer and the trial court.

Respectfully, I believe the majority focuses on the manifest error rule while not adequately considering the Bergeron and Mulkey requirements that the father was required to prove by clear and convincing evidence the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child. In this case the harm to this child is the continuation of custody litigation and parental conflict.

Mindful of the great discretion afforded to the trial court in custody matters, I believe that the trial court's judgment and the majority's opinion, while thoughtful and thorough, are deficient in that the trial court legally erred in not appropriately applying the Bergeron and Mulkey requirements in modifying custody in this case. The result is that a nine-year-old child has been moved from a private school to a public school and has been subjected to the instability of a change of households every two weeks.

APPLICATION FOR REHEARING

Before BROWN, MOORE, PITMAN, GARRETT and COX, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.


author: McCALLUM, J.

text:
    January Nicole Fairchild LINGO, Plaintiff-Appellee v. Lindy Carl LINGO, Jr., Defendant-Appellant
    No. 52,105-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    DAVID J. THOMAS, Counsel for Appellant
    THE LOWERY LAW FIRM, By: Scotty Wayne Lowery, Counsel for Appellee
    Before PITMAN, COX, and McCALLUM, JJ.
   McCALLUM, J.

In this divorce and child custody matter, Lindy Carl Lingo ("Carl") appeals a judgment dismissing his objections to the hearing officer's recommendations ("HOCR") and making the interim order, which adopted those recommendations, a final judgment.

We reverse and remand.

FACTS

January Lingo ("January") and Carl were married on February 7, 1998. The couple had two children, who were born in 1998 and 2004, respectively. On September 28, 2015, January filed for divorce. A hearing officer conference ("HOC") was held on November 9, 2015.

In the HOCR provided to the parties on November 17, 2015, the hearing officer recommended that the parties be granted joint custody, with January named as domiciliary parent in accordance with an attached custody plan. It was also recommended that Carl pay child support of $600 per month retroactive to the date of judicial demand.

By letter dated November 19, 2015, to Hearing Officer Kay Rector, Carl's attorney, John Clay Hamilton, informed Rector that he wanted to render objections on behalf of his client regarding visitation, interim spousal support, and overnight guests of the opposite sex when the children are present, but was unable to make formal objections at the moment because he would be leaving for a CLE in Baton Rouge. Hamilton wrote that he was unable to reach opposing counsel, Scott Lowery, to determine if he would oppose giving Hamilton until after Thanksgiving, when his secretary returned to work, to file his formal objections. He therefore requested that the letter serve as his compliance with the 7-day written objection requirement until he was able to formally submit specific written objections. A copy of his letter was faxed to Rector and opposing counsel on November 19. 2015.

On November 30, 2015, the trial court entered an order making the HOCR the interim order of the court. On December 7, Lowery wrote to Hamilton that he had yet to receive his objections as stated in the November 19 letter. He noted that the trial judge had signed an interim order adopting the HOCR, and added that he would be filing a motion on December 9 to adopt the HOCR.

On December 9, 2015, Hamilton filed written objections to the HOCR with the court regarding the custody and visitation plan, the amount of interim spousal support, and the omission of language prohibiting overnight guests of the opposite sex when the children are present.

A pretrial status conference was held on April 18, 2016, and the parties agreed to a couple of stipulations that modified the existing interim order. One modification addressed one of the objections to the HOCR, namely the lack of a provision concerning overnight guests. A trial date of June 27, 2016, was set. On May 19, 2016, Hamilton withdrew as counsel of record and a new attorney, David Thomas, enrolled. On June 14, 2016, Carl filed a motion to continue. By agreement of the parties, the trial was reset for August 22, 2016.

On October 12, 2016, Carl filed a rule to show cause why a La. C.C. art. 102 divorce should not be granted, and a hearing was set for December 12, 2016. A judgment of divorce was rendered on that date. The court ordered that all orders existing in the matter remain in full force and effect until further orders from the court.

On January 2, 2017, the trial judge retired, and on the following day, a successor judge began presiding over this matter. In March, Carl filed a motion to reset the hearing on the objections. At a telephone conference, the successor judge noted that under Appendix 32.0B(I) to the Rules for Louisiana District Courts, the parties had seven days to file a written objection to the HOCR with the clerk's office. He further noted that Carl did not file his objection into the record until 20 days after the HOCR was rendered and delivered to the parties on November 17, 2015.

On April 25, 2017, January filed a motion to strike and an exception of no right of action. She asserted that while a hearing on Carl's objections to the HOCR was requested, it was never set; therefore, Carl had no right to a hearing on his objections and the objections should be stricken from the record. She further argued that because Carl did not timely file written objections to the HOCR, he lacked a right of action to pursue a trial on any of his late-filed objections.

In opposition to the motion and the exception, Carl argued that when Hamilton informed opposing counsel and the hearing officer by letter that he was objecting to the HOCR and would file formal objections after the deadline, that letter served as a written objection within the meaning of the local rule, or at least was an extension or suspension of the deadline. Carl supported his opposition with the affidavit of Hamilton, who testified that initially he was unable to reach anyone at Lowery's office in order to confirm there would be no opposition to his waiting until the following week to make formal objections to the HOCR. However, he was eventually able to speak with Lowery, who agreed to give Hamilton until December 9 to file formal objections to the HOCR. Hamilton also stated that his objections were faxed to opposing counsel on December 7, 2015, and filed into the record on December 9, 2015. Hamilton believed that his written objections were timely filed in light of the extension of time granted by opposing counsel. Hamilton stated that all parties thereafter acted in accordance with the belief that the objections were timely filed.

The trial court concluded that it was clear from the record that no written objection to the HOCR was filed with the clerk of court within the time and in the manner established by the court rule. Accordingly, the court granted the motion to strike and the exception of no right of action.

DISCUSSION

The function of an exception of no right of action is to determine whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927 ; Turner v. Busby , 2003-3444 (La. 9/9/04), 883 So.2d 412. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

The exception of no right of action presents a question of law; therefore, a court conducts a de novo review of the trial court's action on this exception. Waggoner v. America First Ins. , 42,863 (La. App. 2 Cir. 1/16/08), 975 So.2d 110.

La. R.S. 46:236.5, which authorizes courts to use hearing officers in domestic and family related cases, states, in part:
(C) An expedited process for the establishment of paternity and the establishment and enforcement of support and other related family and domestic matters in district courts using hearing officers may be implemented as follows:
(1) The judge or judges of the appropriate court or courts for the establishment of paternity or the establishment and enforcement of support and other domestic and family matters may appoint one or more hearing officers to hear paternity, support, and other domestic and family related matters.
.....
(3) The hearing officer shall act as a finder of fact and shall make written recommendations to the court concerning any domestic and family matters as set forth by local court rule, including but not limited to the following matters:
(a) Hear and make recommendations on establishment and modification of child and spousal support, child custody and visitation.
.....
(6) A copy of any written recommendations, orders, or uncontested judgments rendered by the hearing officer shall be provided to the parties and their counsel at the time of the hearing officer's ruling, if present. Any party who disagrees with a judgment or ruling of a hearing officer on a matter set forth in Paragraph (3) may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. The objection shall be heard by the judge of the district court to whom the case is assigned. Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.
(7) If no written objection is filed with the clerk of court within the time and manner established, the order shall become a final judgment of the court and shall be signed by a judge and appealable as a final judgment. The judgment after signature by a district judge shall be served upon the parties in accordance with law.

Pursuant to Appendix 32.0B (Court-Specific Rules on Hearing Officers and Domestic Commissioners) of the Title IV of the Rules for Louisiana District Courts, the Fifth Judicial District Court adopted the following rule, which reads in part:

I. Hearing Officer Conferences.
At the Hearing Officer Conference, the parties and their attorneys shall make a good faith effort to discuss and attempt a settlement of the case, narrow the issues, and enter into joint stipulations regarding uncontested matters. If the parties cannot agree on a settlement, then the Hearing Officer will issue a recommendation to the Court. The Hearing Officer Recommendation will include a summary of the disputed and undisputed facts and specific recommendations for disposition of the claims raised by each party. A copy of the Hearing Officer Recommendation will be provided to the parties, who will then have seven (7) days, inclusive of holidays and weekends, to file written objections with the Court. A party's objection shall be directed to specific recommendations and shall provide legal and/or factual basis for the objection. A party filing an objection shall be obligated to provide the Hearing Officer and all parties with a copy of the objection. If all or part of the Hearing Officer's recommendations are not objected to in writing, then those which are not objected to may be adopted by the Court . The District Judge to whom the case is assigned will decide the issues to which objections are directed at trial.

Emphasis added.

In Rodgers v. Rodgers , 50,044 (La. App. 2 Cir. 6/10/15), 170 So.3d 382, this court considered the struggle between the Civil Code articles pertaining to child custody and support and the stringent application of local court rules. This court stated:

Procedural rules exist for the sake of substantive law and to implement substantive rights, not as an end in and of themselves. La. C.C.P. art. 5051 ; Unwired Telecom v. Parish of Calcasieu , 2003-0732 (La. 1/19/05), 903 So.2d 392 ; B.A. Kelly Land Co. v. Questar Exploration & Prod. Co. , 47,509 (La. App. 2 Cir. 11/14/12), 106 So.3d 181, writ denied , 2013-0331 (La. 4/19/13), 112 So.3d 223. A court may adopt local rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law. La. C.C.P. art. 193. Local rules of court cannot conflict with legislation. Rodrigue v. Rodrigue , 591 So.2d 1171 (La. 1992) ; Clark v. Department of Police , 2012-1274 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, writ denied , 2013-0642 (La. 4/26/13), 112 So.3d 846. Legislation contemplates that the court must consider the best interest of the child in awarding custody, and the needs of the child and the ability of the parents to provide support in awarding child support. La. C.C. arts. 131, 141.

Id. at p. 7, 170 So.3d at 386.

The father in Rodgers appealed a judgment that declared his objections to a HOCR to be abandoned. The HOC was held on June 12, 2012, with the report dated June 18. Both parents timely filed objections to the report. On July 13, 2012, the trial court issued a temporary order adopting the HOCR pending final disposition of the issues. In accordance with Local Court Rule 35(H), the order also stated that the objecting parties were responsible for filing an appropriate pleading requesting a hearing or trial date no later than 90 days after filing the objection, or the objection would be considered abandoned. The order further stated that a pending trial or hearing date would not be continued without date except for good cause shown. If such trial or hearing were continued without date, the objecting party had 90 days to file an appropriate pleading requesting a trial or hearing date or the objections would be deemed abandoned.

Timely motions were filed by both parties in Rodgers to set the objections for hearing on December 3, 2012. On November 5, the father filed a motion to amend his petition, for additional mental health evaluations, and to continue the hearing. The motions to continue and to amend were granted. On January 30, a successor judge set the rule on the motion for additional evaluations for March 1. At the March 1 hearing, the court ordered the additional evaluations to take place within 60 days. Although a judgment to that effect was rendered on April 22 without addressing any effect the evaluations would have on the 90-day period regarding the objections, the court minutes stated that a hearing was to be scheduled when the evaluations were completed. On July 24, 2014, the court adopted the HOCR and deemed all objections abandoned because more than 90 days had passed since the November 2013 continuance. While the father acknowledged that the local court rule required him to request a trial date within 90 days or else the matter would be abandoned, he argued that he complied with this mandate when he obtained the continuance.

This court reversed the lower court, concluding that the application of the local rule deprived the parties of their right to a judicial determination of the issues of child custody and support. This court noted that within 90 days of filing his motion to set the objections for trial, the father filed three motions, including a motion to continue, that were considered meritorious. This court considered those judicial actions to be obvious good cause to suspend the 90-day period. Finally, this court noted that the court minutes stated that a hearing was to be held upon completion of the mental health evaluations. The fact that no motion was filed to enforce the 90-day deadline strongly supported a conclusion that all parties intended to hold the trial following the receipt of the mental health evaluation reports.

This court considered a similar issue more recently, in Devereux v. Atkins , 51,473 (La. App. 2 Cir. 6/21/17), 224 So.3d 1160. In Devereux , the father filed objections to the HOCR three days after the HOC held on September 14, 2015, on the grounds that the hearing officer had not considered the 12 factors set forth in La. C.C. art. 134. On September 21, the court signed a temporary order adopting the HOCR. In accordance with Local Court Rule 35(G), that order stated that no trial or hearing date was currently scheduled, and it was the obligation of the objecting party to file an appropriate pleading requesting a trial or hearing date no later than 90 days after the filing of the objections or continuance of the case without date. Otherwise, the objections would be deemed abandoned and the HOCR adopted as the judgment of the court. The written HOCR was filed into the record on September 24, 2015. On December 23, 2015, the father filed a motion to set a trial date on his objections. The court set the trial for April 12, 2016, a date available to both parties. On March 30, 2016, the mother filed a motion to dismiss the objection for failing to comply with the local rule because the father requested a trial more than 90 days after the objection was made. The court denied the motion. While the trial court acknowledged that the motion requesting the trial was outside the 90-day window, the court also recognized that the local rules were discretionary, and there were custody issues that it needed to review.

This court affirmed the lower court judgment which denied the mother's motion to dismiss. Noting that the local court rule relied upon by the mother was only a procedural rule which existed for the sake of substantive law and to implement substantive rights, and not as an end in itself, this court concluded that rule must be subordinated to the substantive law regarding custody and the best interest of the child. The rule was not intended to deprive litigants of their day in court, especially in fact-intensive custody cases.

Rodgers and Devereux can be distinguished because the objecting parties in both cases had timely made their objections to the HOCR. However, the rationale behind both cases remains applicable. A local court rule cannot deprive a litigant of his right to access to the court, especially when the best interest of a child is at issue.

Although Carl did not timely file written objections in the formal manner contemplated by the court rule, the hearing officer and opposing counsel were made aware of his objections to the HOCR within the 7-day period. The hearing officer had discretion to grant an extension pursuant to La. R.S. 46:236.5(C)(4)(j), which permits a hearing officer to sign and issue all rules nisi , orders to appear and show cause, and other orders necessary to the performance of the duties of the office. January's attorney apparently did not object to Carl being given additional time in which to file written objections. In fact, January's attorney referred to this arrangement in his December 7, 2015, communication. The original trial judge was also apparently agreeable to the arrangement, as a trial date was set twice. Finally, it should be noted that January never took any court action to oppose the late filing of the objections until over a year later, when the successor judge first raised concern about it during a telephone conference. In sum, the parties, hearing officer, and original judge operated as if there had been a tacit waiver of the local court provision requiring Carl to file written objections with the court within seven days.

Based on the foregoing, we conclude that the trial court erred in granting the exception of no right of action and motion to strike.

DECREE

At January Lingo's costs, the judgment is REVERSED and the matter REMANDED for further proceedings.

      The hearing officer also made recommendations regarding the use of community assets and interim spousal support. No recommendations were made about other incidental matters.

      At the time the HOCR was rendered, the rule read, in part: "At the Hearing Office Conference, the Hearing Officer will make findings of disputed and undisputed facts and recommendations regarding the issues that are before the Court. The parties will then have seven (7) days, inclusive of weekends and holidays, to file a written objection with the office of the Clerk of Court for the parish in which the case is pending." The rule was amended in 2017 with an effective date that was prior to the hearing on the motion to strike and exception of no right of action that was held on August 21, 2017.