author: GRAVOIS, J.

text:
    Shelby P. LASALLE, Jr., William B. Haensel, Jr., Stephen W. Phillippi and Ronald J. Danos v. G.E.C., INC.
    Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc.
    NO. 18-CA-564 18-CA-565 18-CA-566
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, KREBS, LASALLE, LEMIEUX CONSULTANTS, INC. Jeffrey L. Oakes
    COUNSEL FOR DEFENDANT/APPELLEE, G.E.C., INC. Matthew A. Sherman Preston L. Hayes Patrick R. Follette
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

Appellant, Krebs, Lasalle, Lemieux Consultants, Inc. ("KLL"), appeals the trial court's May 22, 2018 judgment which granted defendant G.E.C., Inc.'s ("GEC") exception of no right of action and dismissed with prejudice KLL's suit against GEC for enforcement of a promissory note. The dispute between these parties, going back to 2013, includes four separate district court cases, three of which have been consolidated, as well as two previous appeals to this Court. Previously, in Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc. , 16-24 (La. App. 5 Cir. 7/27/16), 197 So.3d 829, 833 (" Krebs I "), this Court found that as a corporation which had been dissolved by affidavit pursuant to La. R.S. 12:142.1 of the old Business Corporation Law, KLL had thereby lost the right to enforce its inchoate claims upon dissolution, and therefore no longer had the right to sue GEC for enforcement of a promissory note allegedly defaulted on by GEC in 2013.

At issue in this appeal is whether KLL's reinstatement to active corporate status in 2016 has given KLL back its right of action against GEC for enforcement of the promissory note. In this third suit by KLL against GEC on the promissory note, the trial court ruled against KLL, finding that the law in effect at the time of both KLL's dissolution in 2012 and the alleged default on the note in 2013, the old Business Corporation Law, governed, rather than the Business Corporation Act which became effective on January 1, 2015. KLL appeals, arguing that under the new law, its reinstatement to active status should be retroactive to the date of dissolution, rendering the dissolution as if it never had occurred. Alternatively, KLL argues that jurisprudence interpreting the prior law, upon which this Court previously relied, is wrong and should be repudiated. Finally, KLL argues that even under the prior law, its reinstatement should be retroactive to its dissolution and therefore it has a right of action against GEC.

For the following reasons, we find that the applicable law to this dispute over the 2013 alleged default of the promissory note is the old Business Corporation Law. Under that law, because KLL dissolved by affidavit rather than by employing a liquidator, KLL failed to preserve its inchoate claims, one of which was the right to sue GEC for default on the promissory note, as previously determined by this Court in Krebs I . Further, KLL's reinstatement is prospective only and does not serve to revive its extinguished right of action against GEC. Accordingly, the judgment of the trial court granting GEC's exception of no right of action and dismissing KLL's suit against GEC with prejudice is affirmed.

FACTS AND CHRONOLOGICAL PROCEDURAL HISTORY

In the 2016 appeal before this Court, Krebs I , we summarized certain facts and procedural history as follows:

On February 21, 2011, KLL, Inc. entered into an Asset Purchase Agreement ("the Agreement"), wherein G.E.C., Inc. bought, accepted, or acquired [a] certain portion of KLL, Inc.'s trade, business, operations, assets, good will and liabilities. On February 28, 2011, in connection with the Agreement, G.E.C., Inc. executed a promissory note in favor of KLL, Inc. On December 26, 2012, KLL, Inc.'s shareholders voluntarily dissolved KLL, Inc. by affidavit pursuant to La. R.S. 12:142.1.
On November 8, 2013, the former shareholders of KLL, Inc. filed a petition to enforce the promissory note, under Shelby P. LaSalle, William B. Haensel, Jr., Stephen W. Phillippi, and Ronald J. Danos v. G.E.C., Inc. , Division "D," case number 732-755, contending that G.E.C., Inc. failed to pay the monthly installment on the promissory note for June 2013, and it remained in default thereafter by failing to pay the successive monthly installments and other amounts due on the promissory note. The shareholders asserted that as the former shareholders of KLL, Inc., they were entitled to enforce the promissory note because they were the holders in due course. G.E.C., Inc. filed an answer and reconventional demand denying the allegations in plaintiffs' petition and contending that KLL, Inc. violated and/or breached the Agreement. G.E.C., Inc. brought the reconventional demand against the former shareholders individually as required by law, since KLL, Inc. was voluntarily dissolved in 2012. G.E.C., Inc. also filed an exception of no right of action and no cause of action requesting the dismissal of the former shareholders' individual claims.
On April 15, 2015, the trial court sustained G.E.C., Inc.'s exception of no right of action finding that the former shareholders individually did not have a right of action, but allowed the former shareholders fifteen days to file an amended petition to name KLL, Inc. as party plaintiff. The judgment further held that if an amended petition was not filed within fifteen days, the petition would be dismissed with prejudice.
On April 29, 2015, instead of filing an amended petition, KLL, Inc., through its former shareholders, filed a new petition to enforce the promissory note, under Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc. , Division "P," case number 749-232. In this petition, KLL, Inc. asserted the same claims as previously asserted in the prior lawsuit, i.e. , that G.E.C., Inc. was in default on the promissory note. In response to this petition, G.E.C., Inc. filed exceptions of res judicata, lack of procedural capacity, no right of action, and no cause of action. On July 13, 2015, the trial court dismissed the claims filed by the former shareholders individually against G.E.C., Inc. On August 7, 2015, the parties consented to a transfer and consolidation of the two cases. On August 26, 2015, the trial court overruled G.E.C., Inc.'s exceptions of res judicata and no cause of action, held that the exception of lack of procedural capacity was moot, sustained the exception of no right of action and dismissed KLL, Inc.'s claims with prejudice....

Krebs I , 197 So.3d at 830-31.

KLL's shareholders appealed the dismissal of their suit against GEC to this Court. In Krebs I , appellants argued that La. R.S. 12:1-1405 of the recently enacted Business Corporation Act should apply to the dispute. Unlike specific statutory provisions that were in effect both at the time of KLL's dissolution by affidavit in 2012 under La. R.S. 12:142.1 and when it commenced suit against GEC in 2013, "new" La. R.S. 12:1-1405 purports to allow a corporation, though dissolved, to commence a proceeding in its corporate name to collect its assets, i.e. , sue on the promissory note. However, in Krebs I , this Court held that La. R.S. 12:1-1405 did not apply under the facts of this case. This Court determined that newly enacted La. R.S. 12:1-1405 was substantive in nature, because it changed the fundamental rights of the parties concerning dissolution of corporations, and therefore should be applied prospectively only. Krebs I , 197 So.3d at 832. Applying jurisprudence interpreting the statutory law regarding corporate dissolution in existence at the time of KLL's dissolution in 2012, this Court determined that because KLL dissolved by affidavit under La. R.S. 12:142.1, rather than by formally dissolving with a liquidator as per La. R.S. 12:142, KLL waived and failed to preserve its inchoate claims against GEC. Krebs I , 197 So.3d at 832-33. Thus, this Court affirmed the trial court's judgment granting GEC's exception of no right of action.

Meanwhile, on May 12, 2016, KLL through its designated representatives filed a suit, In Re Krebs, Lasalle, Lemieux Consultants, Inc. , case number 760-781 of the Twenty-fourth Judicial District Court, Parish of Jefferson, seeking reinstatement of its corporate status so that it could "collect certain assets due and owing to it." The trial court denied KLL's petition for reinstatement, citing La. R.S. 12:1-1444, "Reinstatement of terminated corporation." KLL appealed to this Court. This Court, In Re Krebs, Lasalle, Lemieux Consultants, Inc. , 16-586 (La. App. 5 Cir. 3/15/2017), 215 So.3d 939 (" Krebs II "), vacated the ruling. Noting our decision in Krebs I , this Court held that the repealed Business Corporation Law, rather than La. R.S. 12:1-1444 (which is part of the newly enacted Business Corporation Act), governed KLL's request for corporate reinstatement. Krebs II , 215 So.3d at 941. This Court cited La. R.S. 12:1-1701 -1703, transition statutes found in the Business Corporation Act, holding that La. R.S. 12:1-1701 evidenced the Legislature's intent that the new law would apply only to corporations in existence on January 1, 2015. Krebs II , 215 So.3d at 942-43. As KLL was not in existence on that date, this Court determined that as per La. R.S. 12:1-1703, the reinstatement time limitations of La. R.S. 12:1-1444 did not apply to KLL, who had dissolved under the repealed La. R.S. 12:142.1 which contained no time limits in which to seek reinstatement. Id. This Court remanded for KLL to have a reasonable opportunity to seek an evidentiary hearing on the question of whether KLL had a lawful and valid purpose for seeking reinstatement. Krebs II , 215 So.3d at 943. On remand, the trial court granted KLL's petition for reinstatement on September 14, 2017, retroactive to May 12, 2016, the date KLL's petition for reinstatement was filed.

On February 5, 2018, reinstated KLL filed a third suit against GEC to enforce the promissory note, case number 780-420 of the Twenty-fourth Judicial District Court, Parish of Jefferson. On April 6, 2018, GEC filed exceptions of no right of action, no cause of action, and res judicata , which KLL opposed. On April 10, 2018, the 2018 suit was consolidated with the 2013 (732-755) and 2015 (749-232) suits. Following a hearing on May 22, 2018, the trial court granted GEC's exception of no right of action and dismissed KLL's suit with prejudice. The trial court ruled that in accordance with this Court's previous two appellate opinions ( Krebs I and Krebs II ), the applicable law was the Business Corporation Law and not the Business Corporation Act, specifically La. R.S. 12:142.1, and that that statute, as interpreted by jurisprudence, did not provide for a corporation dissolved by affidavit to regain the right, upon reinstatement, to enforce claims that were inchoate at the time of the corporation's dissolution; in other words, KLL's reinstatement in 2016, under the provisions of the pre-2015 law, was not retroactive to the date of its dissolution and did not operate to revive KLL's right to enforce its inchoate claims against GEC, which right was lost when KLL dissolved by affidavit in 2012. KLL's timely appeal followed.

On appeal, in its only assignment of error, KLL asserts that the trial court erred in its ruling that KLL has no right of action to enforce the note against GEC. In its assignment of error, KLL first argues that once its corporate status was reinstated, La. R.S. 12:1-1444(H) of the new Business Corporation Act should apply, rather than the prior law, to provide that its reinstatement is retroactive to the date of its dissolution, and thus it has the right to sue GEC to enforce the promissory note. KLL argues alternatively that in the event the prior law ( La. R.S. 12:142.1 ) does apply, the Fourth Circuit jurisprudence interpreting this statute is wrong and should be repudiated by this Court. Finally, KLL argues, also alternatively, that under the prior statutory scheme, specifically La. R.S. 12:163(E), the reinstatement of KLL's corporate articles is retroactive "as though the revocation never occurred," and thus KLL did not lose its right of action against GEC when it elected to dissolve by affidavit in 2012.

LAW AND ANALYSIS

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 have a legal interest in the subject matter of the litigation. Krebs I , 197 So.3d at 831, citing Badeaux v. Southwest Computer Bureau, Inc. , 2005-0612 La. 3/17/06, 929 So.2d 1211, 1217, and La. C.C.P. art. 927. An exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. Krebs I , 197 So.3d at 831, citing Marks v. Third Dist. Volunteer Fire Dep't , 13-383 (La. App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101. An appellate court reviews a trial court's ruling on an exception of no right of action de novo because the exception raises a question of law. Krebs I , 197 So.3d at 831, citing Badeaux , supra , and Marks , supra .

In support of its assignment of error that the trial court erred in ruling that KLL had no right of action to enforce the note against GEC, KLL first argues that under La. R.S. 12:1-1444(H) of the 2015 enactment of the Business Corporation Act, it has a right of action against GEC. That paragraph states:

When the secretary of state files a certificate or articles of reinstatement, the existence of the terminated corporation is reinstated retroactively, and the corporation continues to exist as if the termination had never occurred.

In Krebs II , we held that the trial court erred in basing its denial of KLL's request for reinstatement on La. R.S. 12:1-1444. Finding that that statute's enactment made substantive changes in the law, because it fundamentally changed parties' rights concerning the dissolution of a corporation, this Court held that La. R.S. 12:1-1444 applied prospectively only. Krebs II , 215 So.3d at 942-43. Thus, this Court held that KLL should seek reinstatement under the prior law, and that La. R.S. 12:1-1444(A)(2) did not apply to time-limit KLL's request for reinstatement. Id. Now, however, KLL argues that this same statute, whose application to KLL in Krebs II would have prevented KLL from being reinstated, should now apply to render its reinstatement, which was possible only under the prior law, retroactive to the date of its dissolution. In other words, KLL argues that La. R.S. 12:1-1444 renders its reinstatement retroactive as if its dissolution had never occurred, yet La. R.S. 12:1-1444 would have prevented KLL's reinstatement request as untimely, had this Court found it applicable in Krebs II . We find no logic or merit to this argument.

KLL argues that because its corporate status has been reinstated, it is once again a validly existing corporation with all of the rights and privileges of a corporation in good standing under Louisiana law, and that its rights should be determined by reference to current law. KLL argues that in finding that the new law does not apply to the promissory note dispute (the salient facts of which occurred in 2012 and 2013), now that KLL has been reinstated, the trial court has made a "bizarre" interpretation of La. R.S. 12:1-1444 that the new Business Corporation Act can never apply to corporations that dissolved prior to January 1, 2015 but that got reinstated thereafter, but such corporations must forever be governed in all respects by the prior statutory scheme. KLL argues that since the Business Corporation Act applies to all active corporations (those that existed on January 1, 2015 and those formed thereafter), regardless of whether they were formed before or after the new Act's effective date, it follows "inexorably" that the new Act applies to KLL, and that new La. R.S. 12:1-1444(H) applies to KLL to render its dissolution as if it never happened. Thus, KLL claims, its reinstatement has restored its right of action against GEC for its alleged 2013 default on the promissory note.

Upon review, we find that neither the trial court nor this Court in Krebs I or Krebs II made a "bizarre" interpretation of La R.S. 12:1-1444 that the new Business Corporation Act can never apply to corporations that dissolved prior to January 1, 2015 but were reinstated thereafter. Both this Court and the trial court were called upon to determine only whether the new law applied to determine the consequences the acts of the parties (the dissolution in 2012 and the alleged default in 2013) that occurred well before the new law went into effect. This Court affirmatively found that the new law applied prospectively only. It appears clear, however, that the new law would apply to any new business KLL might undertake subsequent to its 2016 effective reinstatement; new business, however, not being a new suit to collect on the GEC promissory note allegedly defaulted on in 2013. The new Business Corporation Act would also apply to guide KLL should KLL choose to end its corporate existence while the new law is effective. KLL offers no convincing legal argument as to why a prospective law such as La. R.S. 12:1-1444, enacted in 2015, should apply now to determine the consequences of acts KLL took well prior to the law's enactment (its choice to dissolve by affidavit in 2012), merely because KLL's corporate existence has now been reinstated, which reinstatement could have only occurred under provisions of the repealed statutory scheme.

KLL also argues that the "rationale" this Court used in Krebs I and Krebs II is no longer applicable. KLL argues that this Court's rationale in Krebs I , in finding that the prior law applied, was that because KLL dissolved in 2012 under the prior law, the prior law should determine its rights as a dissolved entity. However, that was only half of this Court's "rationale." The other half was recognition of the Legislature's clear intent that the newly enacted Business Corporation Act was to apply prospectively only because the statutory enactments were substantive in nature.

In any event, even by its own terms, were it not already clear that the statute applies prospectively only, La. R.S. 12:1-1444 does not apply to the instant action. In brief, KLL quotes only the last paragraph of La. R.S. 12:1-1444, paragraph H, but fails to quote the entire statute. Paragraph E(2) of the statute requires that a corporation requesting reinstatement show that its reinstatement was approved in accordance with either of the following, La. R.S. 12:1-1444(B) or La. R.S. 12:1-1444(C). KLL cannot fulfill this requirement, as it was reinstated under repealed statute La. R.S. 12:142.1(B).

Accordingly, we find that these arguments by KLL are without merit.

KLL also argues, in the alternative, that jurisprudence relied upon by this Court in Krebs I and Krebs II was wrongly decided. That jurisprudence is: Gendusa v. City of New Orleans , 93-1527 (La. App. 4 Cir. 2/25/94), 635 So.2d 1158 ; Robertson v. Weinmann , 00-799, 00-800 (La. App. 4 Cir. 2/21/01), 782 So.2d 38 ; and Leader Buick, GMC Trucks, Inc. v. Weinmann , 02-2006 (La. App. 4 Cir. 2/19/03), 841 So.2d 34 ; which this Court discussed thoroughly in Krebs I . Gendusa held that under the plain wording of the statute, La. R.S. 12:142.1 did not allow the survival of a corporation's inchoate claims, which corporation elected to dissolve by affidavit under the provisions of that statute, rather than using a liquidator as provided by La. R.S. 12:142. Gendusa , 635 So.2d at 1162-63. Robertson held that corporations which dissolve by affidavit under La. R.S. 12:142.1 may be reinstated pursuant thereto, but such reinstatement is prospective only, as distinguished from reinstatement pursuant to La. R.S. 12:163(E)(2), which is retroactive to the date of revocation (not dissolution) of a corporation's articles. Robertson , 782 So.2d at 41-42. Leader Buick , which was the third lawsuit between the same parties as in Robertson , affirmed the grant of the defendants' exception no right of action against Leader Buick, holding that Leader Buick's claims against the defendants for the breach of the purchase agreement were extinguished when the corporation dissolved by affidavit, and the subsequent reinstatement of the corporation did not revive its claims against defendant, specifically finding:

As stated by this Court in Gendusa and Robertson , there is no public policy and no statutory provision to protect a shareholder, in possession of all relevant information concerning his corporation's inchoate claim, from the loss of that right through his own voluntary dissolution of the corporation by affidavit. Likewise, while La. R.S. 12:142.1(B) allows for reinstatement of the corporation after dissolution by affidavit, there is no public policy or statutory provision which permits the reinstatement to be retroactive and grants the revival of the corporation's inchoate claims.

Leader Buick , 841 So.2d at 38. Upon review, we find nothing in KLL's present arguments that convinces us that this Court's prior reliance on the above jurisprudence was incorrect, or that the jurisprudence itself should be repudiated.

Other jurisprudence interpreting La. R.S. 12:142.1 distinguishes between inchoate claims, such as those found in the instant case and the Fourth Circuit jurisprudence, and claims actually instituted by the corporation prior to its dissolution. In In Re Reinstatement of Venture Associates, Inc. of Louisiana , 04-0439 (La. App. 1 Cir. 2/11/05), 906 So.2d 498, Venture Associates dissolved by affidavit under La. R.S. 12:142.1 during the pendency of litigation it had instituted prior to its dissolution. The First Circuit affirmed a judgment granting Venture Associates' reinstatement retroactive to the date of its dissolution, but distinguished those facts from the Fourth Circuit jurisprudence, noting that Venture Associates' retroactive reinstatement was for the purpose of maintaining a lawsuit it had filed prior to its dissolution; i.e. , Venture Associates' claims at the time of its dissolution were not "inchoate." Venture Associates , 906 So.2d at 502.

The Ventures Associates court also discussed this Court's decision in In re Islander Shipholding, Inc. , 97-978 (La. App. 5 Cir. 4/15/98), 715 So.2d 7, wherein this Court affirmed a corporate reinstatement retroactive to the date of dissolution by affidavit pursuant to La. R.S. 12:142.1, allowing Islander Shipholding to pursue an arbitration claim that it had filed prior to its dissolution. Islander Shipholding , 715 So.2d at 12. In the instant case, on the date that KLL dissolved by affidavit in 2012, KLL had no pending claims or proceedings against GEC, as GEC's alleged default on the promissory note did not occur until June of 2013.

KLL also argues in brief that the Fourth Circuit, in both Robertson and Leader Buick , mistakenly failed to read La. R.S. 12:142.1 and La. R.S. 12:163 together, instead reading them alternatively. We disagree. In our opinion, the Fourth Circuit did not err in its analysis. Our brethren noted that the Legislature could have included in La. R.S. 12:142.1 the same language concerning retroactivity present in La. R.S. 12:163, but it did not. Further, these two statutes are found in separate sections of the old Business Corporation Law: the former statute is found in Part XIV, entitled "Dissolution," whereas the latter statute is found in Part XVI, entitled "Other Proceedings." The Legislature's placement of these two statutes in different sections of the law indicates that the statutes are intended to treat two legally distinguishable factual scenarios differently. Thus, we agree with the Fourth Circuit, finding no indication that the Legislature intended these two statutes to be read together to produce the result desired by KLL. This argument by KLL is likewise without merit.

Finally, KLL argues, also alternatively, that it has a right of action against GEC under prior law La. R.S. 12:163(E), because that statute states, in Section (E)(2), that "... the certificate of reinstatement of such charter and articles of incorporation shall be retroactive and the charter and articles of incorporation shall continue in existence as though the revocation had never occurred." KLL's argument in this regard, however, is unavailing. By its own terms, La. R.S. 12:163 does not apply to a corporation that voluntarily dissolved by affidavit under La. R.S. 12:142.1, contrary to KLL's assertion in brief. La. R.S. 12:163, entitled "Failure to file annual reports; revocation and reinstatement of articles and limitations on authority to do business with the state," is found in Part XVI, entitled "Other Proceedings" of the Business Corporation Law, which, as noted above, is a different subsection from the statutes pertaining to dissolution, found in Part XIV.

Though dissolution and revocation are both mechanisms that end or suspend the corporate existence, each has different conditions precedent and consequences. Voluntary dissolution by affidavit was a non-punitive procedure whereby the corporation itself , through actions taken by its shareholders if certain conditions were met, ended its corporate existence in a simplified procedure. See (repealed) La. R.S. 12:142 and 12:142.1. Revocation of articles of incorporation under La. R.S. 12:163, however, was a punitive action undertaken by the Secretary of State for the corporation's failure to perform certain statutory duties. La. R.S. 12:163(E) provided procedures whereby a corporation whose articles had been revoked by the Secretary of State could seek reinstatement of its articles, with the successful result being retroactive reinstatement. It is upon this section that KLL relies to now argue that reinstatement of its corporate articles should have the effect as if the dissolution had never taken place. Because KLL's articles of incorporation were not revoked by the Secretary of State, this statute does not apply to provide KLL's requested relief. This argument by KLL is likewise without merit.

CONCLUSION

For the foregoing reasons, upon de novo review, we find that the trial court's judgment granting GEC's exception of no right of action comports with applicable law. Though as pointed out by the trial court at the hearing on the exceptions that the result is harsh, we find that KLL's reinstatement under the prior law cannot be retroactive to the date of its dissolution in 2012, and thus does not serve to revive its right of action against GEC, which was extinguished by KLL's choice to dissolve by affidavit in 2012. We accordingly affirm the trial court's judgment which granted GEC's exception of no right of action and dismissed KLL's suit against GEC with prejudice.

AFFIRMED

      By Acts 2014, No. 328, § 1, the Louisiana Legislature enacted La. R.S. 12:1-101 to 12:1-1704 to comprise Chapter 1 of the Business Corporation Act of Title 12 of the Louisiana Revised Statutes, effective on January 1, 2015, and at the same time, by Acts 2014, No. 328 § 5, the Louisiana Legislature repealed former Chapter 1 of the Business Corporation Law, consisting of La. R.S. 12:1 to 12:178 and La. R.S. 12:1605 to 12:1607.

      See Petition for Reinstatement filed in In Re Krebs, Lasalle, Lemieux Consultants, Inc. , case number 760-781.

      Though the trial court did not offer any reasons for its denial of reinstatement beyond a reference to La. R.S. 12:1-1444 at the time of the trial court's ruling, it appears that the trial court found the request for reinstatement under La. R.S. 12:1-1444 untimely. At the time KLL's representatives filed the reinstatement suit, La. R.S. 12:1-1444 provided a time limitation of three years from the date of dissolution in which a dissolved corporation could seek reinstatement. At the time KLL filed its petition for reinstatement in 2016, it had been more than three years since the date of its dissolution. Of note, in 2017, the Legislature amended the statute and expanded the time limitation to five years after dissolution.

      The trial court also denied the other exceptions filed by GEC as moot.

      These statements are offered as dicta , however, because those specific questions are not before this Court in this appeal.

      La. R.S. 12:1-1444(E) provides:
      E. The articles of reinstatement shall state all of the following:
      (1) The name of the corporation.
      (2) That the reinstatement was approved in accordance with either of the following:
      (a) R.S. 12:1-1444(B).
      (b) R.S. 12:1-1444(C), and that the directors and officers listed in the annual report accompanying the articles of reinstatement were elected in accordance with that Subsection. If the annual report is not yet due, the report to be made in compliance with this Subsection shall be provided in a separate written statement.
      (3) That the corporation is reinstated, effective retroactively as if the corporation had never been terminated.

      La. R.S. 12:1-1444(B) and (C) provide:
      B. If the corporation was terminated administratively under R.S. 12:1-1442, the articles of reinstatement shall be approved by either of the following:
      (1) A director or officer listed in the corporation's last annual report before its termination.
      (2) A director of the corporation elected by the shareholders of the corporation after the last annual report, regardless of whether the director was elected before or after the administrative termination.
      C. If the corporation was terminated after its dissolution or termination was authorized by a vote of shareholders, then all of the following actions are required:
      (1) The reinstatement of the corporation shall be approved by the same vote that was required to approve the dissolution or termination, by the persons who were shareholders at the time that the dissolution or termination was approved by the shareholders.
      (2) The persons entitled to vote on the reinstatement shall elect a board of directors for the reinstated corporation.
      (3) The board of directors elected in accordance with Paragraph (C)(2) of this Section shall elect officers for the reinstated corporation.

      "Inchoate" is defined by Black's Law Dictionary, Fifth Edition, as "imperfect; partial; unfinished."

      And which, as noted by Judge Klees who concurred in Gendusa , avoids the complications and costs associated with formal liquidation, but also forfeits some benefits of the same.

      La. R.S. 12:143, which describes the procedures for involuntary dissolution and which refers to provisions in R.S. 12:163(B), is not pertinent to the facts of this case.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: Medical Review Panel Proceeding for Hollice SPURLOCK, Jr.
    NO. 18-CA-666
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
   COUNSEL FOR PLAINTIFF/APPELLANT, HOLLICE SPURLOCK, JR., J. Michael Daly, Jr.

COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER MEDICAL CENTER - KENNER, LLC, Dax C. Foster, Brett M. Dupuy

Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

LILJEBERG, J.

In this medical malpractice action, plaintiff seeks review of the trial court's judgment sustaining the defendant health care provider's exception of prescription and dismissing his medical review proceedings with prejudice. For the following reasons, we vacate the trial court's judgment and remand for further proceedings.

PROCEDURAL HISTORY

According to the parties, on December 22, 2017, plaintiff, Hollice Spurlock, Jr., filed a request for a medical review panel with the Division of Administration alleging that defendant, Ochsner Medical Center-Kenner, L.L.C. ("Ochsner"), breached the standard of care during his treatment by failing to properly cleanse his chemotherapy port, causing the port to become clogged and resulting in blood clots. In his request, Mr. Spurlock contends that the date of discovery of the alleged malpractice was December 26, 2016.

On March 14, 2018, Ochsner filed a "Petition to Institute Discovery," pursuant to La. R.S. 40:1231.8, et seq. , requesting to use the processes of the court for the purpose of obtaining evidence for presentation before the medical review panel. Thereafter, on May 18, 2018, Ochsner filed an exception of prescription, asserting that Mr. Spurlock's claims against it were prescribed pursuant to La. R.S. 9:5628(A), because his request for a medical review panel was filed more than one year after the date Mr. Spurlock knew or should have known of the alleged malpractice. Ochsner argued that although Mr. Spurlock stated in his request for a medical review panel that his port malfunctioned and was removed in December of 2016, medical records show that this actually occurred in December of 2015.

Mr. Spurlock filed a memorandum in opposition to the exception, asserting for the first time that he did not discover the alleged malpractice until January of 2017 when the effects of chemotherapy were over and he discussed his symptoms with fellow cancer patients. He then filed a supplemental opposition memorandum, attaching an affidavit in which Mr. Spurlock indicated that his doctors told him the port malfunction and resulting blood clots were "normal complications" and that he did not discover the malpractice until January of 2017 when he spoke with other cancer patients at a meeting.

The trial court held a hearing on the exception of prescription on August 22, 2018, at which the parties presented argument only. At the conclusion of the hearing, the trial court granted the exception of prescription, finding that the "documentary evidence establishes that a reasonable person should have known" of the possibility of malpractice when he was told that the port malfunctioned and had to be removed. On September 10, 2018, the trial court signed a written judgment dismissing the medical review proceedings with prejudice. Mr. Spurlock appeals.

DISCUSSION

On appeal, Mr. Spurlock asserts that the trial court erred by granting Ochsner's exception of prescription. He asserts that a reasonable person would not have known of the malpractice when the chemotherapy port malfunctioned and had to be removed, because his doctors indicated that this was a known complication. He asserts that he did not know of the alleged malpractice until he discussed his symptoms with fellow cancer patients in January of 2017 and that the doctrine of contra non valentum should apply, making his request for a medical review panel timely.

Ochsner responds that Mr. Spurlock indicated in his request for a medical review panel that he learned of the alleged malpractice when the port was removed due to malfunction and blood clots, and the medical records demonstrate that this occurred in December of 2015. It argues that Mr. Spurlock's claims have clearly prescribed and that it was "self-serving" for him to change the date of discovery to January of 2017 after Ochsner noted that the port was removed in December of 2015, not 2016 as alleged in the complaint.

La. R.S. 9:5628(A) provides that the prescriptive period for a medical malpractice action is one year from the date of the alleged act or one year from the date of discovery, with the qualification that the discovery rule is made inapplicable after three years from the act or omission. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, 510 ; Jimerson v. Majors , 51,097 (La. App. 2 Cir. 1/11/17), 211 So.3d 651, 655. The prescriptive period will begin to run even if the injured party does not have actual knowledge of the facts that would entitle him to bring a lawsuit as long as there is constructive knowledge. Campo , 828 So.2d at 509. Constructive knowledge is "whatever notice is enough to excite attention and put the injured party on guard and call for inquiry." Id. ; Bertoniere v. Jefferson Parish Hosp. Service Dist. No. 2 , 07-301 (La. App. 5 Cir. 10/30/07), 972 So.2d 328, 332, writ denied , 07-2276 (La. 2/15/08), 976 So.2d 177.

La. C.C.P. art. 931 provides that at the trial of a peremptory exception of prescription, "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." Hotard's Plumbing, Elec. Heating and Air, Inc. v. Monarch Homes, L.L.C. , 15-180 (La. App. 5 Cir. 3/16/16), 188 So.3d 391, 393. In the absence of evidence, an exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Cichirillo v. Avondale Industries, Inc. , 04-2894 (La. 11/29/05), 917 So.2d 424, 428 ; Sperandeo v. Osabas , 09-627 (La. App. 5 Cir. 2/9/10), 33 So.3d 269, 270. When an exception of prescription is filed during the medical review panel stage of the proceedings, the request for a medical review panel is considered the petition to be reviewed for timeliness. Primus v. Touro Infirmary , 05-662 (La. App. 4 Cir. 1/25/06), 925 So.2d 609, 610-611 ;

In re Medical Review Panel Proceedings of Ouder , 07-1266 (La. App. 1 Cir. 5/2/08), 991 So.2d 58, 60.

In the present case, the Petition to Institute Discovery does not contain the date of discovery of the alleged malpractice, and the request for a medical review panel was not attached or filed along with this petition. In support of its exception of prescription, Ochsner filed a copy of the medical review panel request along with some of Mr. Spurlock's medical records from December of 2015, reflecting the malfunction and removal of the port. However, neither these documents nor any other evidence was introduced at the hearing on the exception of prescription.

Evidence not properly offered and introduced cannot be considered, even if it was physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. ; Caro v. Bradford White Corp. , 96-120 (La. App. 5 Cir. 7/30/96), 678 So.2d 615, 618.

Because the request for a medical review panel was not included in the filing of the petition or introduced at the hearing, and the petition does not indicate the date Mr. Spurlock discovered the alleged malpractice, we are unable to determine whether Mr. Spurlock's medical malpractice claims are prescribed on the face of the request for review. Further, because neither party introduced any evidence at the hearing, we have no evidence to review and cannot consider the merits of Ochsner's exception of prescription.

Accordingly, we find that the trial court erred by granting the exception of prescription in the absence of properly admitted evidence. We vacate the trial court's judgment and remand for further proceedings.

DECREE

For the foregoing reasons, we vacate the trial court's judgment on the exception of prescription and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED


author: MOLAISON, J.

text:
    Joy BOURGEOIS v. Paget BAZIL
    NO. 18-CA-676
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    PLAINTIFF/APPELLEE, JOY BOURGEOIS: In Proper Person
    COUNSEL FOR DEFENDANT/APPELLANT, PAGET BAZIL: Tracy G. Sheppard
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

This action for injunctive relief was brought by Joy Bourgeois, on behalf of herself and her four children, against Paget Bazile, the girlfriend of Ms. Bourgeois' former husband and the children's father, Mickey Bourgeois. The trial court granted a permanent injunction for one year, based on evidence that Ms. Bazile initiated a physical confrontation with Ms. Bourgeois and interfered in matters involving the children.

Ms. Bazile appealed to question Ms. Bourgeois' right to seek relief on behalf of her eighteen-year-old son and the sufficiency of the evidence to support the granting of injunctive relief under La. C.C.P. art. 3601, which requires proof by a preponderance of the evidence that irreparable injury, loss or damage may otherwise result and that the petitioner is without an adequate remedy at law. Zeringue v. St. James Parish School Bd. , 13-444 (La. App. 5 Cir. 11/19/13), 130 So.3d 356, 358-359.

We affirm the judgment as to Ms. Bourgeois. Based on a discrepancy between the trial court's oral reasons for judgment and the written judgment, which was not asserted by either litigant but became apparent in our review of the record, we find that the children were not included as protected persons in the written judgment, despite the trial judge's apparent intention to include them. In such circumstances, the written judgment controls. Marino v. Marino , 576 So.2d 1196, 1198 (La. App. 5 Cir. 1991) ; Hains v. Hains , 2009-1337 (La. App. 1 Cir. 3/10/10), 36 So.3d 289, 301. Accordingly, only Ms. Bourgeois is a protected person under the judgment.

FACTS AND PROCEDURAL BACKGROUND

At the time of the events giving rise to Ms. Bourgeois' suit for injunctive relief, she and her ex-husband had joint custody of the children, who ranged in age from eight to eighteen. Ms. Bourgeois was the domiciliary parent and home-schooled the children. For reasons that are not relevant to this case, Mr. Bourgeois had visitation with the children at Ms. Bourgeois' home.

In May 2018, Ms. Bourgeois filed for sole custody of the children. Mr. Bourgeois and Ms. Bazile were apparently engaged to be married at the time, and Ms. Bazile attended the court proceedings in the custody case. Ms. Bourgeois and Ms. Bazile had some differences of opinion about certain things involving the children, culminating in an incident at Ms. Bourgeois' home on August 26, 2018, in which Ms. Bazile pushed Ms. Bourgeois into the front door of the home. Ms. Bourgeois reported the incident to the police. The next day, Ms. Bazile contacted Child Protective Services to report her concerns about the manner in which Ms. Bourgeois was caring for the children. An investigator contacted Ms. Bourgeois, who denied the allegations.

A few days later, Ms. Bourgeois filed this suit against Ms. Bazile seeking injunctive relief on behalf of herself and the children. Ms. Bourgeois alleged that Ms. Bazile had stalked, harassed and assaulted her, had threatened to kidnap her children by taking them on a cruise out of the country despite knowing that Ms. Bourgeois opposed that, and had made a false report against her with Child Protective Services in an attempt to have her children taken away from her. She also alleged that Ms. Bazile questions the children and makes them feel uncomfortable.

The trial court issued a temporary restraining order in favor of Ms. Bourgeois and the children, temporarily prohibiting Ms. Bazile from having any contact with them and from taking the children on a cruise or showing up at their events, among other things.

The hearing on the request for a permanent injunction was held in September 2018. Ms. Bourgeois and Ms. Bazile each represented themselves at the hearing and were the only witnesses.

At the hearing, Ms. Bourgeois testified that Ms. Bazile had been harassing her through phone calls, including one in July 2018, when Ms. Bazile called her after court in the custody case to tell her all the mistakes she was making with her children, that she did not control her children, and that Ms. Bazile and Mr. Bourgeois were going to take the children on a cruise. The parties disputed whether Ms. Bourgeois voiced any objection to the children going on a cruise at the time. Ms. Bourgeois stated she told Ms. Bazile that her children could not go on a cruise without her because she had a fear of them falling overboard. Ms. Bazile claimed Ms. Bourgeois was initially supportive of the children going on a cruise and changed her position later.

August 26 Incident

With regard to the incident at Ms. Bourgeois' home on August 26, 2018, Ms. Bourgeois testified that Ms. Bazile confronted her and assaulted her when she came home to exchange the children with her ex-husband, who had apparently already left at Ms. Bazile's request. According to Ms. Bourgeois, Ms. Bazile got very irate with her, asked her what she does with her child support, asked her what she had done with money earned by her eighteen-year-old son that she was supposed to be keeping for him, told her that she was a bad mother, and told her that she does not control her children and that Ms. Bazile and Mr. Bourgeois would take the children on a cruise whether Ms. Bourgeois liked it or not.

Ms. Bourgeois testified that Ms. Bazile refused to leave when she told her to leave and backed Ms. Bourgeois up into her front door with her chest on top of Ms. Bourgeois' chest while screaming at her, at which point Ms. Bourgeois told her she was going to call the police. Ms. Bourgeois said Ms. Bazile replied that she wanted the police to come take her children. Ms. Bourgeois called the police, but Ms. Bazile left before they arrived. Ms. Bourgeois testified that Mr. Bourgeois and Ms. Bazile had put a band-aid over her doorbell camera "so that ... it would not record her attacking me."

Later that day, Ms. Bazile sent Ms. Bourgeois an email relating her concerns about the children, saying she only wanted what was best for them, and expressing her disappointment in how Ms. Bourgeois responded to her earlier in the day.

Ms. Bourgeois introduced in evidence a copy of the police report she filed concerning the August 26 incident and said she intends to press charges for simple battery. Ms. Bazile had not been arrested as of the hearing date.

Report to Child Protective Services

On August 27, 2018, the day after the incident at Ms. Bourgeois' home, Ms. Bazile contacted Child Protective Services (CPS). According to Ms. Bourgeois, Ms. Bazile told CPS that Ms. Bourgeois was not feeding or educating her children, had no air conditioning, and locked the children in their bedrooms with deadbolt locks. Ms. Bourgeois testified that CPS came to her home to investigate the allegations and did not find them to be substantiated.

Ms. Bourgeois testified that her ex-husband had broken the refrigerator, the air conditioner was not working because he had tampered with it, and the only places with deadbolt locks were her bedroom and the garage, where she kept her files and personal items because her ex-husband was spiteful and would throw her things out. She stated that Ms. Bazile and Mr. Bourgeois were trying to set her up and that Ms. Bazile had threatened to lie to a judge to have her children taken away but Mr. Bourgeois acknowledged that she was not allowed to do that.

Other Evidence

Ms. Bourgeois called the police on another occasion, when she mistakenly believed that Ms. Bazile was in her home with Mr. Bourgeois and the children after the temporary restraining order had been issued, but she cancelled the call after learning that Ms. Bazile was not there.

Ms. Bazile works in the local Boy Scouts of America office. She testified that she has a handicapped daughter and she is very involved in organizations that assist individuals with mental illness and developmental disabilities. She stated she reported Ms. Bourgeois to Child Protective Services because she was required by law to do so. She said she never told Ms. Bourgeois that she was a bad mother, but she does have concerns about the children being behind their grade level in school, particularly the youngest child, and "sometimes parents are just not educated on the issues, so I always like to try to talk to them."

Ms. Bazile claimed the children were three years behind their grade level and said the youngest child, who is eight years old, cannot read. Ms. Bourgeois denied that the children are three years behind. She acknowledged that her daughter is behind on reading and confuses letters, but stated she has hired a private tutor to help her daughter with reading. Ms. Bourgeois testified that her daughter was diagnosed with ADHD recently and will be tested for learning disabilities. She further stated that her daughter has come home upset the last four or five times she was with her father "because they quiz her on reading." Ms. Bourgeois claimed that Ms. Bazile and Mr. Bourgeois spend their weekends questioning the children and making them feel uncomfortable.

Ms. Bazile introduced in evidence some emails and text messages from June 2018, when she and Ms. Bourgeois were getting along well and cooperating with regard to the children, and confirmation of the October 2018 cruise that she and Mr. Bourgeois had booked for themselves and the children.

Ms. Bourgeois testified that Ms. Bazile and Mr. Bourgeois began their relationship while he was still married. It appears from the record that Ms. Bourgeois learned of Ms. Bazile's engagement to Mr. Bourgeois in April 2018 and initially tried to welcome her into the family. According to Ms. Bazile, Ms. Bourgeois told her that she, Ms. Bazile, would be a "bonus mom" to the children and would be co-parenting them. In a text message introduced by Ms. Bazile, however, Ms. Bourgeois said, "After all once you marry Mickey you will be co-parenting with us." There was no evidence that the two were married at the time of the hearing.

Ms. Bourgeois testified, "I'm not co-parenting with her; I'm co-parenting with him.... These are not her children.... I need her to stay completely away from me and my children. I fear for my children's safety." She said Mr. Bourgeois did not have a problem with her parenting or with her home-schooling of the children until she filed for sole custody.

TRIAL COURT RULING

In granting the permanent injunction, the trial judge told Ms. Bazile:

You are to stay at least a hundred yards away from Ms. Bourgeois and her children. You are not to go ... near her place of work or - I don't know if the children go to school; it sounds like they're schooled at home. But you're not to go anywhere near them or events that they are attending right now. Anything ... where Ms. Bourgeois's going to be or her children are going to be, you need to just step back. You are interfering, and it is not in the best interest of the children. And ... I can see why Ms. Bourgeois finds it threatening, because it is threatening. You're very - you're very, very smug, and you think that you know better and you're going to tell her how to handle her children. And that is not your place....
I am issuing the restraining order. I'm going to put it in effect for a period of one year. And if you want to try to get it lifted, you can come back and show me
that circumstances have changed and that it should be lifted.... So no contact via text, via telephone, through
third parties. You need to let Mr. Bourgeois handle his business with his children and his ex-wife, and you need to stay out of it.

The trial court found that Ms. Bazile "represents a credible threat to the physical safety of a non-family or household member, and that irreparable injury, loss or damage may result to the protected persons(s)." The court prohibited Ms. Bazile from abusing, harassing, assaulting, stalking, following, tracking, monitoring or threatening the protected person(s), from having any contact with the protected person(s), from going within 100 yards of the protected person(s) or of Ms. Bourgeois' residence, from damaging any belongings of the protected person(s) or interfering with their living conditions, and from contacting family members or acquaintances of the protected person(s).

The trial court judgment, issued in the form of a Louisiana Uniform Abuse Prevention Order, identifies Ms. Bourgeois as the petitioner and lists the names of each of the four children, but it indicates that only the petitioner is a protected person. However, in its oral reasons for judgment, the trial court stated that the injunction would extend to the children. It appears from the briefs that both parties believe the permanent injunction was issued in favor of Ms. Bourgeois and the four children.

ASSIGNMENTS OF ERROR

Ms. Bazile appealed the judgment, raising three assignments of error:

1. Ms. Bourgeois has no right of action on behalf of the eldest child, who was eighteen when the petition was filed.
2. The record does not support the granting of injunctive relief because the evidence does not show that Ms. Bazile represents a credible threat to Ms. Bourgeois and/or her minor children such that irreparable injury, loss or damage may result.
3. Ms. Bourgeois has an adequate remedy at law because the core issue in this case is a custody dispute between the children's parents and the issue of what is in the best interest of the children is being litigated in the custody case.

Ms. Bourgeois did not appeal the trial court judgment or file an answer to Ms. Bazile's appeal.

ANALYSIS

We first address the issue of who is a protected person under the trial court's judgment, an issue that became apparent in our review of the record to address Ms. Bazile's first assignment of error.

Who is a Protected Person

The trial court completed a Louisiana Uniform Abuse Prevention Order, a printed form to be used when granting certain types of injunctive relief. La. C.C.P. art. 3607.1. The first two pages of the form each contain a section for identifying the persons protected by the order. In each of those sections, there is space for listing names and dates of birth, and there are two boxes for indicating who is a protected person, one box for "Petitioner" and the other box for "Other(s)." On both pages, the names of Ms. Bourgeois and the four children are listed, but only one box is checked, the box for "Petitioner." The box for "Other(s)" is not checked.

Another section of the form requires the court to describe the relationship between the protected person(s) and the defendant. The only thing listed in that section is "ex husband's girlfriend." None of the boxes dealing with children are checked.

In the temporary restraining order, which was issued by another judge using the same printed form, both boxes in the sections identifying the protected persons are checked, and the relationships of the protected persons to the defendant are described as "child of defendant's current or former intimate partner" and "ex husband's girlfriend."

It is unclear whether the trial court intended to include the children as protected persons in the permanent injunction. Although the court's oral reasons for judgment indicate that the court intended to enjoin Ms. Bazile from having any contact with Ms. Bourgeois or the children, the written judgment does not identify the children as protected persons.

A trial judge may render a written judgment which differs in substance from his or her prior oral statements. The oral statements form no part of the judgment. The written judgment is the only ruling from which an appeal may be taken. Marino v. Marino , 576 So.2d at 1198. See also La. C.C.P. arts. 1911, 1918.

When there is a conflict between oral reasons for judgment and a written judgment, the written judgment controls. Marino, 576 So.2d at 1198. This is true even when the trial court may have intended otherwise. Hains v. Hains , 36 So.3d at 301.

When the trial court's written judgment differs in substance from the court's oral reasons for judgment, a litigant who seeks to have the written judgment modified to conform to the oral reasons must either file a motion for new trial, appeal the judgment, or file an answer to the other party's appeal. La. C.C.P. arts. 1951, 1971, 2082, 2133. See and compare Hebert v. Hebert , 351 So.2d 1199, 1200 (La. 1977) ; Neumeyer v. Schwartz , 97-995 (La. App. 5 Cir. 3/25/98), 708 So.2d 1258, 1262 ; and Hofler v. J.P. Morgan Chase Bank, N.A. , 46,047 (La. App. 2 Cir. 1/26/11), 57 So.3d 1128, 1134-1135.

Ms. Bourgeois did not file a motion for new trial, appeal the judgment or answer Ms. Bazile's appeal to question the discrepancy between the trial court's oral reasons and written judgment. Pursuant to the written judgment, only Ms. Bourgeois is a protected person. Accordingly, Ms. Bazile's assignment of error concerning Ms. Bourgeois' right to seek protection on behalf of her eighteen-year-old son is moot, and we do not address that issue.

Sufficiency of the Evidence

An injunction is a harsh, drastic and extraordinary remedy, and should only issue where the mover is threatened with irreparable loss or injury without an adequate remedy at law. Irreparable injury means the moving party cannot be adequately compensated in money damages for the injury or suffers injuries which cannot be measured by pecuniary standards. Zeringue v. St. James Parish School Bd. , 130 So.3d at 359.

The burden of proof for obtaining a permanent injunction is a preponderance of the evidence. The appellate court reviews the granting or denial of a permanent injunction under the manifest error standard of review. Zeringue , 130 So.3d at 358-359. This standard recognizes that the trier of fact is in a better position to evaluate the credibility of witnesses and make factual determinations than is a reviewing court. Parish Nat. Bank v. Ott , 02-1562 (La. 2/25/03), 841 So.2d 749, 753.

In order to reverse a trial court's factual findings under the manifest error standard, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. If the trial court's findings are reasonable in light of the record as a whole, an appellate court may not reverse, even if it is convinced that it would have weighed the evidence differently. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations and inferences are as reasonable. Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882-883 (La. 1993) ; Parish of East Feliciana ex rel. East Feliciana Parish Police Jury v. Guidry , 2004-1197 (La. App. 1 Cir. 8/10/05), 923 So.2d 45, 53 writ denied , 2005-2288 (La. 3/10/06), 925 So.2d 515.

Based on the evidence presented at the hearing, we cannot say the trial court was clearly wrong in concluding that Ms. Bazile's conduct posed a threat of irreparable injury or loss to Ms. Bourgeois without an adequate remedy at law. The court found Ms. Bazile's encounters with Ms. Bourgeois in which she questioned how Ms. Bourgeois was handling her children to be threatening. This included a physical confrontation initiated by Ms. Bazile at Ms. Bourgeois' home and the filing of what Ms. Bourgeois described as an unsubstantiated report against her with Child Protective Services while her request for sole custody of the children was pending. To the extent that the testimony of the two litigants conflicted, the trial court obviously believed Ms. Bourgeois. The court's factual findings are reasonable in light of the record viewed in its entirety. As to the adequacy of a legal remedy, Ms. Bazile is not a party to the custody proceeding, and a future custody adjudication will not provide immediate protection against threats or other harmful behavior by Ms. Bazile.

CONCLUSION

The trial court judgment enjoining Ms. Bazile from engaging in certain conduct is affirmed with respect to Ms. Bourgeois. The judgment, as written, does not include any of the children as protected persons. Costs of the appeal are assessed to Ms. Bazile.

AFFIRMED. LOUISIANA UNIFORM ABUSE PREVENTION ORDER UPHELD AS TO JOY BOURGEOIS.

      Ms. Bazile's last name sometimes appears in the record as Bazil. The correct spelling is Bazile, according to exhibits introduced by Ms. Bazile at the hearing.

      Ms. Bourgeois attached to her appellate brief a letter from Child Protective Services that was sent to her after the hearing. Because it was not introduced in evidence at the hearing, it cannot be considered on appeal. Lozes v. Lozes , 542 So.2d 603, 604 (La. App. 5 Cir. 1989) ; Davis v. Davis , 606 So.2d 575, 577 (La. App. 5 Cir. 1992).

      In her appellate brief, Ms. Bourgeois discusses several things involving Ms. Bazile that occurred after the hearing. Because these matters were not part of the evidence introduced in the trial court, they cannot be considered on appeal. Lozes , 542 So.2d at 604. Appellate courts do not have jurisdiction to receive new evidence. Davis , 606 So.2d at 577.

      Ms. Bourgeois' date of birth is listed, but the children's dates of birth are not listed. The children's last name is misspelled on the second page. The section of the form for identifying the type of order being issued was not completed, and the defendant's name is misspelled, as it was in the petition.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Terrance Darnell CALLOWAY
    NO. 18-KA-708
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna.
    COUNSEL FOR DEFENDANT/APPELLANT, TERRANCE DARNELL CALLOWAY, Gwendolyn K. Brown
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Terrance Darnell Calloway, appeals the consecutive sentences the trial court imposed after a jury convicted him of second degree murder and obstruction of justice. Defendant also contends the trial court erred by proceeding directly to sentencing without first obtaining a waiver of sentencing delays. For the reasons that follow, we vacate defendant's sentences and remand the matter to the trial court for further proceedings.

STATEMENT OF THE CASE

On September 29, 2016, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On September 30, 2016, defendant pled not guilty at his arraignment.

Jury selection occurred on June 11, 2018, and, on June 13, 2018, the jury returned a verdict of guilty as charged. On June 27, 2018, defendant filed a Motion for New Trial and a Motion for Post Verdict Judgment of Acquittal. On the same day, defendant filed a written Motion for Appeal and Designation of Record.

According to the transcript, on June 28, 2018, the trial court denied the Motion for New Trial and the Motion for Post Verdict Judgment of Acquittal and then granted the Motion for Appeal. After two victim impact statements were read, the trial court sentenced defendant to life in prison without benefit of parole, probation, or suspension of sentence on count one. The trial court also sentenced defendant to forty years at hard labor on count two to run consecutively with his sentence on count one. Due to defendant's actions during sentencing, the trial court also found him in contempt of court and sentenced defendant to an additional three months.

DISCUSSION

Defendant raises two sentencing issues as assignments of error on appeal: 1) The trial court erred by imposing the sentences consecutively; and 2) The trial court erred by proceeding directly to sentencing without first obtaining a waiver of sentencing delays.

Prior to reaching the merits of defendant's appeal, we must first address the jurisdictional issue created due to the trial court's decision to grant defendant's motion for appeal prior to sentencing defendant. As explained above, defendant filed his motion for appeal with other post-trial motions on June 27, 2018. Defendant appeared for sentencing on June 28, 2018, at which time the trial court proceeded to deny the post-trial motions and grant the motion for appeal. Subsequently, the trial court heard victim impact statements and imposed defendant's sentences.

Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant's motion for appeal. State v. Johnson , 13-75 (La. App. 5 Cir. 10/9/13), 128 So.3d 325, 327. Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include imposing sentence (except an enhanced sentence under La. R.S. 15:529.1 ). La. C.Cr.P. art. 916. A defendant can appeal from a final judgment of conviction only when the sentence has been imposed. La. C.Cr.P. art. 912.

Thus, upon the granting of defendant's motion for appeal on June 28, 2018, the trial court was divested of jurisdiction to subsequently sentence defendant. We acknowledge that in some instances, this Court has considered such jurisdictional errors to be harmless and, in the interest of judicial economy, have ruled on the merits of the arguments presented in the defendants' appeals. See State v. Lampkin , 12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 162 ; State v. Simms , 03-1459 (La. App. 5 Cir. 12/28/04), 892 So.2d 111, 114 n. 1. However, this Court has also recognized that when the issues raised on appeal involve actions taken by the trial court after it was divested of jurisdiction, the more appropriate action is to vacate these actions and remand. See Johnson , supra ; State v. Clark , 15-357 (La. App. 5 Cir. 11/19/15), 180 So.3d 602, 604 ; State v. Victor , 13-888 (La. App. 5 Cir. 12/23/14), 167 So.3d 118, 123.

In State v. Johnson , supra , the defendant was convicted and then filed a motion for appeal, which the trial court granted the next day. Approximately one week later, the defendant filed a motion for new trial that was denied that same day. In his motion for new trial, the defendant raised an issue that he also later raised on appeal. In that matter, this Court found that when the trial court denied the defendant's motion for new trial, the substance of which he raised on appeal, a remand was proper in light of due process considerations. Consequently, this Court vacated the defendant's underlying and enhanced sentences and remanded the matter to the trial court to rule on the defendant's motion for new trial, and if denied, to resentence the defendant.

In Victor , supra , this Court found the trial court's imposition of sentence after it was divested of jurisdiction was harmless error. However, this Court also specifically noted that the defendant did not raise any sentencing issues on appeal.

In the present matter, the only assignments of error defendant raises on appeal involve sentencing issues. After the trial court granted defendant's motion for appeal, it was divested of jurisdiction to sentence defendant. In light of due process considerations discussed above, we vacate defendant's sentences for his second degree murder and obstruction of justice convictions and remand this matter for resentencing. Once defendant has been resentenced, he has the right to appeal his convictions and sentences.

SENTENCES VACATED; REMANDED FOR RESENTENCING


author: CHAISSON, J.

text:
    STATE of Louisiana v. Jamal WASHINGTON
    NO. 18-KA-729
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, JAMAL WASHINGTON, Gwendolyn K. Brown, Baton Rouge
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

Defendant, Jamal Washington, appeals his conviction and sentence for racketeering. For the reasons that follow, we affirm defendant's conviction and sentence, but we remand the matter for the correction of the uniform commitment order as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On February 8, 2018, the Jefferson Parish Grand Jury returned an indictment charging defendant with racketeering, in violation of La. R.S. 15:1352 (count one), human trafficking, in violation of La. R.S. 14:46.2 (count two), and conspiracy to commit human trafficking, in violation of La. R.S. 14:26 and La. R.S. 14:46.2 (count three). Defendant pled not guilty at his arraignment.

On July 27, 2018, defendant withdrew his not guilty pleas, and after being advised of his rights, pled guilty to the racketeering charge as set forth in count one of the indictment. In accordance with the plea agreement, defendant was sentenced to eight years imprisonment at hard labor.

On October 11, 2018, the trial court granted defendant an out-of-time appeal.

FACTS

Because defendant pled guilty, the facts of this case were not fully developed at a trial. However, as part of the plea agreement, defendant provided a written factual basis indicating that he, along with Anrielle Mimmitt, helped his cousin, Keston Mimmitt, run his prostitution business. Defendant specifically admitted that he drove women to their "prostitution dates" and that he cleaned up a hotel room at Keston's direction after his cousin injured one of the women and bloodied up the room.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. She sets forth the procedural history, the limited facts, and the circumstances surrounding defendant's guilty plea and sentencing. She particularly notes that defendant was advised of his rights and the legal consequences of entering a guilty plea. In addition, appellate counsel notes that defendant was informed of his possible sentencing exposure and of the actual sentence that would be imposed upon acceptance of his guilty plea. Further, she acknowledges that defendant was sentenced in accordance with the negotiated plea agreement and is therefore restricted by law from appealing his sentence. In light of her review of the record, defendant's appellate counsel sets forth that she can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, she requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or irregularities in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charge against him, that he was advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty.

Defendant indicated that he understood the possible legal consequences of pleading guilty and confirmed that he had not been forced, coerced, or intimidated into entering his guilty plea. Further, defendant was informed during the colloquy of his maximum sentencing exposure and of the actual sentence that would be imposed if his guilty plea was accepted. A factual basis for the guilty plea was entered by the State, and defendant acknowledged that he was pleading guilty because he was guilty of the crime charged. After her colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely, and voluntarily made.

Further, defendant's sentence was imposed in accordance with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In addition, defendant's sentence falls within the sentencing range set forth in the applicable statute. See La. R.S. 15:1354.

Based on the foregoing, we find that defendant's guilty plea and the sentence imposed pursuant to the plea agreement do not present any issues for appeal.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals an error relating to the date of the offense in the uniform commitment order that requires correction. In particular, the uniform commitment order reflects the date range for count one as January 1, 2006, to February 26, 2014. However, the record reflects that the offense occurred on or between January 1, 2014, and July 9, 2017. Accordingly, we remand the matter to the trial court for correction of the uniform commitment order to reflect the accurate offense date range on count one. We further instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform commitment order to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we affirm defendant's conviction and sentence and remand the matter for correction of the uniform commitment order as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      In exchange for defendant's guilty plea to count one, the State agreed to dismiss counts two and three and further agreed not to file a multiple offender bill of information against defendant.

      It is noted that Keston Mimmitt and Anrielle Mimmitt were also charged in the grand jury indictment with various offenses stemming from Keston's prostitution business and narcotics distribution.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      In addition, defendant was notified of his right to file a pro se brief in this appeal. As of this date, defendant has not filed a pro se brief.

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

      Notably, in the "Violation" section of the indictment, it indicates that "on or around January 1, 2006, through February 26, 2015," defendant did "knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of the Enterprise through a Pattern of Racketeering Activity;" however, in "The Pattern of Racketeering Activity" section of the indictment, the dates of the racketeering activity are listed as "on or between January 1, 2014 and July 9, 2017." Further, both the waiver of rights form signed by defendant and the transcript of the guilty plea proceeding reflect the date range for the offense as January 1, 2014, through July 9, 2017.


author: JOHNSON, J.

text:
    Elsa CARUSO v. ACADEMY SPORTS AND OUTDOORS
    NO. 18-CA-496
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, ELSA CARUSO, Arthur O. Schott, III, New Orleans, Ivan A. Orihuela, Kenner, Joseph A. Interiano, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, ACADEMY SPORTS AND OUTDOORS, James M. Garner, Ryan O. Luminais, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

Defendant/Appellant, Academy Ltd. d/b/a/ Academy Sports and Outdoors (hereinafter referred to as "Academy"), appeals a judgment finding it solely at fault for injuries incurred by Plaintiff/Appellee, Elsa Caruso, and accompanying damages awards from the 24th Judicial District Court, Division "M". For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On October 7, 2015, Ms. Caruso filed a "Petition for Damages" against Academy. In her petition, she alleged that, as she proceeded through the store located in Gretna, Louisiana on October 8, 2014, she was struck by falling merchandise and/or shelving on her head, face, and other body parts. She further alleged that, as a direct consequence of Academy's negligence and/or reckless actions from the falling merchandise and/or shelving, she suffered severe injuries to her muscular, skeletal, and nervous systems. Academy answered the petition, denying Ms. Caruso's allegations and arguing Ms. Caruso was the sole or contributing proximate cause of the accident by failing to watch where she was walking or mitigating her damages. Academy further argued that the accident may have been caused by the fault of a third party.

The matter proceeded to a bench trial on February 28, 2018. At the beginning of the trial, the parties stipulated to various exhibits, which included photographs , Ms. Caruso's medical records, and an affidavit from Ferdinand Gettridge. Ms. Caruso was the only witness called for live testimony at the trial. At the close of Ms. Caruso's case-in-chief, Academy orally moved for an involuntary dismissal of Ms. Caruso's action.

In its motion, Academy argued that Ms. Caruso failed to present any evidence that it controlled the premises where the accident allegedly occurred or any evidence that Academy was involved in the accident in any manner. The trial court denied Academy's motion then allowed it the opportunity to present its case-in-chief, to which Academy declined and rested its case. The trial court took the matter under advisement. However, prior to concluding the proceeding, the trial judge orally noted that the certified medical records reported Ms. Caruso was in Academy Sports when the accident occurred.

In a written judgment dated April 5, 2018, the trial court found that Academy was 100% at fault and was the legal cause of Ms. Caruso's damages. The court awarded Ms. Caruso $ 24,750 in damages against Academy, which included $ 21,250 in general damages and $ 3,500 in special damages. The instant suspensive appeal by Academy followed.

ASSIGNMENTS OF ERROR

On appeal, Academy alleges the trial court was manifestly erroneous by: 1) finding it to be 100% at fault for Ms. Caruso's injuries, despite her failure to present any testimony or evidence to meet her burden of proof; 2) finding it to be 100% at fault for Ms. Caruso's injuries when she failed to testify where she was injured; 3) failing to find comparative fault on the part of Ms. Caruso; and 4) awarding Ms. Caruso $ 21,250 in general damages and $ 3,500 in special damages.

LAW AND ANALYSIS

Finding of Fault

Academy alleges the trial court was manifestly erroneous in finding it to be at fault for Ms. Caruso's injuries. It argues that the trial court applied the wrong legal standard found under the Louisiana Merchant's Liability Act and the "falling merchandise" standard should have been applied. When applying the correct legal standard, Academy contends that Ms. Caruso failed to prove any of the legal elements of the applicable "falling merchandise" cases. It particularly claims Ms. Caruso failed to negate that she did not cause the item to fall or that another customer did not cause the item to fall.

Conversely, Ms. Caruso argues that Academy was at fault for the accident and her injuries. She contends the undisputed facts of this matter show that a person on a ladder caused an object to fall onto her, and the only reasonable conclusion a fact finder could reach is that the person on the ladder, Ferdinand Gettridge, was an employee of Academy. Ms. Caruso further contends that Academy failed to present any evidence that it exercised reasonable care to keep its premises in a reasonably safe condition. Thus, she argues that the trial court reasonably concluded that Academy was negligent by failing to properly and adequately supervise or oversee its premises.

In this matter, the judgment at issue does not indicate which legal standard the trial court used for its finding. However, after review of the pertinent jurisprudence, we conclude that this is a "falling merchandise" case. To prevail in a falling merchandise case under La. R.S. 9:2800.6(A), the standard is that the merchant must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition and free of hazards which may cause injury. Hodges v. J.C. Penney Corp. Inc. , 04-1333 (La. App. 5 Cir. 3/29/05), 900 So.2d 966, 968. Additionally, a plaintiff who is injured by falling merchandise must prove, even by circumstantial evidence, that a premise hazard existed. Id. Once a plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by specified means, i.e. , periodic clean up and inspection procedures. Id.

In Hodges , supra , this Court explained the elements required for proving a falling merchandise case by stating:

To prevail in a falling merchandise case, the customer must demonstrate that (1)
he or she did not cause the merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall, and (3) that the merchant's negligence was the cause of the accident[.] [T]he customer must show that either a store employee or another customer placed the merchandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Only when the customer has negated the first two possibilities and demonstrated the last will he or she have proved the existence of an "unreasonably dangerous" condition on the merchant's premises.

At the trial in this matter, the trial court admitted the affidavit of Ferdinand Gettridge pursuant to the stipulation of the parties. In his affidavit, Mr. Gettridge attested that he would testify at trial to the following: 1) he was standing on a 12' orange ladder when Ms. Caruso walked underneath him, and as a result, a cardboard sign struck her nose; 2) he never saw Ms. Caruso prior to her being struck with the cardboard sign; 3) Ms. Caruso was walking at the time she was struck by the cardboard sign; 4) the sign was a "Back to School" cardboard sign; and 5) Ms. Caruso refused medical attention after her injury.

Ms. Caruso testified at trial that she was shopping in the store on the day of the incident when someone on a staircase was changing a shelf, and the shelf hit her nose. Immediately after the incident, she stated that people approached her, and a man asked if she wanted an ambulance called for her. However, she declined medical assistance because her mother, who accompanied Ms. Caruso to the store, was not feeling well. Ms. Caruso acknowledged that she was not paying attention to the shelf because she was shopping and looking for clothing sales.

According to the evidence presented at trial, Ms. Caruso did not cause the sign to fall; Mr. Gettridge was the person standing on the ladder that Ms. Caruso walked by at the time of the accident; and the falling sign was the cause of Ms. Caruso's accident. As evidenced from the judgment, the trial court gave more weight to Ms. Caruso's version of the accident over Mr. Gettridge's version. The burden then shifted to Academy to exculpate itself from fault by showing that it used reasonable care to avoid a premise hazard. See , Hodges , supra . Academy rested its case-in-chief without presenting any evidence. Thus, we find that Academy failed to exculpate itself from fault in this matter.

Therefore, because Academy failed to exculpate itself from fault, we do not find the trial court was manifestly erroneous in determining that Academy was at fault for Ms. Caruso's accident and injuries.

Location of Accident

Academy alleges the trial court was manifestly erroneous in finding it to be 100% at fault when Ms. Caruso failed to establish where the incident occurred on October 4, 2014. Without testimony as to where the incident occurred, Academy argues that Ms. Caruso could not meet her burden of proof that it was liable for her injuries, regardless of which legal standard was applied.

In opposition, Ms. Caruso argues that the location of the accident was established in a medical report. She contends that the report states that the accident occurred at the Academy Sports on Stumpf Boulevard. Based upon the evidence presented, she maintains it was reasonable for the trial court to conclude that the accident occurred at the Stumpf location.

As orally noted by the trial court, there was evidence in Ms. Caruso's medical records that established where her accident occurred. The report from Ms. Caruso's physical therapist, Dr. Christine Pilson, states that Ms. Caruso's accident occurred at the Academy Sports on Stumpf Boulevard. Academy stipulated to the admission of this report and did not raise any objections to the veracity of it. Accordingly, we find that the trial court properly considered the information contained in the report, which included the location of the accident.

Comparative Fault

Academy alleges the trial court was erroneous in finding it to be 100% at fault. It argues that substantial fault should have been allocated to Ms. Caruso because her inattentiveness at the time of the incident caused her injuries. Academy contends that even if it were at fault for Ms. Caruso's injuries, there is no reasonable factual basis in the record to support the trial court's assignment of 100% fault.

Ms. Caruso avers that she has no comparative fault in the accident because it is clear that she did not cause the sign to fall onto her nose, causing her injuries. Instead, she claims that Academy is solely at fault for permitting an employee to move a heavy sign while standing on a ladder during store hours without placing any warning or caution signs around the area.

Under the express provisions of La. C.C. art. 2323, 100 % of the causative fault for a harm must be allocated in actions for an injury under any theory of liability. Thompson v. Winn-Dixie Montgomery, Inc. , 15-477 (La. 10/14/15), 181 So.3d 656, 664. "The fundamental purpose of Louisiana's comparative fault scheme is to ensure that each tortfeasor is responsible only for the portion of the damage he has caused." Id. , quoting Miller v. LAMMICO , 07-1352 (La. 1/16/08), 973 So.2d 693, 706. The allocation of fault is a factual determination reviewed under the clearly wrong standard. Id. at 666, citing Clement v. Frey , 95-1119 (La. 1/16/96), 666 So.2d 607, 611. In order to reverse a fact finder's determination, the appellate court must: 1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Id.

The trial court in this matter found Academy to be the legal cause of Ms. Caruso's damages and 100% at fault. As mentioned earlier, the evidence presented at trial showed that Ms. Caruso did not cause the sign to fall; Mr. Gettridge was standing on the ladder that Ms. Caruso walked by at the time of the accident; and the sign was the cause of Ms. Caruso's accident. Upon review of this evidence, we cannot find the trial court was manifestly erroneous or clearly wrong in its determination. Therefore, we do not find the trial court was manifestly erroneous in finding Academy to be 100% at fault for Ms. Caruso's accident.

Damages Awards

Academy alleges the trial court was clearly wrong in its awards of general and special damages to Ms. Caruso. It argues that Ms. Caruso failed to sustain her burden of presenting adequate evidence that an intervening cause did not create or contribute to her injuries; and, even if she had sustained her burden, Ms. Caruso's injuries were minor and/or an aggravation of preexisting injuries. It further argues that Ms. Caruso failed to present any medical opinions that her complained of injuries were not the result of the minor vehicle accident that occurred approximately one month after the incident in question. Academy contends that the aggregate award of nearly $ 25,000 in favor of Ms. Caruso was excessive and should be reduced.

In contrast, Ms. Caruso argues that the trial court did not abuse its discretion in awarding her general damages. She contends that she sustained injuries as a result of Academy's negligence and received treatment for said injuries for approximately 8½ months. After considering the evidence and testimony, Ms. Caruso avers that the damages awarded for $ 2,500 per month for pain and suffering were fair and reasonable.

Absent a determination that the trial court's very great discretion in the award of general damages has been abused in the matter under review, the reviewing court should not disturb the trier's award. Branch , 806 So.2d at 802-03. The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Id. , citing Youn v. Maritime Overseas Corp. , 623 So.2d 1257 (La. 1993). A plaintiff is required to prove special damages by a preponderance of the evidence, and the findings of the trier of fact are subject to the manifest error standard of review. Mosbey v. Jefferson Parish Sheriff's Office , 18-69 (La. App. 5 Cir. 6/27/18), 250 So.3d 1110, 1118.

Here, Ms. Caruso testified that she felt "a lot" of pain from the sign hitting her in the nose, along with head, neck, back, and shoulder aches, and her face was black and blue the following day. She further testified that she had undergone therapy as treatment for her pain for about eight or nine months. She presented medical records to corroborate her treatment. Ms. Caruso was diagnosed with moderate strain/sprain of the cervical spine, moderate strain/sprain of the thoracic spine, strain/sprain of the bilateral shoulders, contusion to the face, nose pain, muscle spasms, and headaches, all resulting from the accident. From review of this evidence, we cannot find the trial court abused its discretion in its awards of $ 21,250 in general damages and $ 3,500 in special damages.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court that found Academy to be 100% at fault and awarded Ms. Caruso $ 21,250 in general damages and $ 3,500 in special damages. The costs of the appeal are assessed against Academy.

AFFIRMED

      The photographs included pictures of Ms. Caruso's injuries and pictures of the sign that injured Ms. Caruso.

      Mr. Gettridge was involved in Ms. Caruso's incident.

      According to the transcript, Academy incorrectly moved for a motion for directed verdict, which is applicable to cases tried by a jury. Because the matter was tried in a bench trial, we will consider Academy's oral motion as a motion for involuntary dismissal. See , Populis v. State Department of Transportation and Development , 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975, 979 n. 5.

      The court of appeal may not set aside the trial court's findings of fact in the absence of manifest error or unless the findings are clearly wrong. Branch v. Wal-Mart Stores, Inc. , 01-988 (La. App. 5 Cir. 12/26/01), 806 So.2d 796, 801, citing Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). "[W]here two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id. at 801-02, quoting Stobart v. State , 617 So.2d 880, 882-83 (La. 1993).