author: WELCH, J. McClendon, J., concurring.

text:
    Adam O'BANNON v. MORIAH TECHNOLOGIES, INC. and Texas Mutual Insurance Company
    NUMBER 2017 CA 0728
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2018
    James E. Cazalot, Jr., Slidell, Louisiana, Attorney for Appellant Plaintiff-Adam O'Bannon
    Christopher P. Ieyoub, Wesley A. Romero, Lake Charles, Louisiana, Attorneys for Appellee Defendant-Texas Mutual Insurance Company
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

The plaintiff/appellant, Adam O'Bannon, appeals a summary judgment from the Louisiana Office of Workers' Compensation ("OWC") in favor of the defendant/appellee, Texas Mutual Insurance Company ("TMIC"), the workers' compensation insurer of his employer, Moriah Technologies, Inc. ("Moriah"), dismissing TMIC, with prejudice. For the reasons that follow, we reverse in part and affirm in all other respects.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. O'Bannon, a Louisiana resident, was injured in Louisiana in June 2012, while in the course and scope of his employment with Moriah, a Texas corporation. TMIC provided a policy of workers' compensation insurance to Moriah. O'Bannon filed a disputed claim for compensation with the OWC in Louisiana against Moriah and TMIC in October 2012. Moriah filed a cross-claim against TMIC, seeking reimbursement for attorney fees and costs incurred in the defense of the matter, as well as reimbursement of any benefits paid to O'Bannon.

Following trial, the workers' compensation judge ("WCJ") signed a judgment on January 13, 2015, holding that O'Bannon was an employee of Moriah who sustained an injury during the course and scope of his employment with Moriah, and further, that the accident and injury sustained were "traditional" workers' compensation accidents and injuries as defined by the Louisiana Workers' Compensation Act ("LWCA"), La. R.S. 23:1021 et seq. The WCJ cast Moriah in judgment for indemnity, medical benefits and expenses, penalties, attorney fees, and costs of the proceeding for Moriah's failure to timely pay indemnity and medical benefits pursuant to La. R.S. 23:1201(B) and 23:1201(E). Additionally, the WCJ held that it did not have subject matter jurisdiction over Moriah's cross-claim against TMIC for reimbursement of workers' compensation benefits and dismissed Moriah's claim against TMIC, with prejudice. Finally, the WCJ dismissed O'Bannon's claim against TMIC, with prejudice.

Moriah appealed the judgment of the WCJ. In O'Bannon v. Moriah Techs., Inc. , 2015-1460 (La. App. 1st Cir. 6/3/16), 196 So.3d 127, this court affirmed the WCJ's ruling that O'Bannon was an employee of Moriah and that he sustained injury as a result of an accident that occurred during the course and scope of his employment with Moriah. 196 So.3d at 137, 140. This court affirmed the WCJ's award of indemnity, medical benefits and expenses, penalties, attorney fees, and costs to O'Bannon. Id. at 142. Regarding the OWC's jurisdiction over the claims asserted against TMIC, this court held that the OWC had exclusive subject matter jurisdiction over the claims asserted by O'Bannon and Moriah against TMIC, even though the insurance policy at issue might require the application of Texas law to determine coverage. We accordingly vacated the portions of the WCJ's judgment and supplemental and amending judgment that held the OWC did not have jurisdiction over the claims asserted against TMIC by O'Bannon and Moriah and remanded the matter to the OWC for further proceedings consistent with our opinion. Id. at 141-42.

Upon remand, TMIC filed a motion for summary judgment arguing that its policy of workers' compensation insurance issued to Moriah does not provide coverage in favor of O'Bannon and Moriah and further, that Moriah does not qualify for reimbursement under the policy. O'Bannon and Moriah opposed TMIC's motion for summary judgment. Following a hearing held on December 7, 2016, the WCJ granted summary judgment in favor of TMIC and signed a judgment on January 20, 2017 that: 1) held that TMIC's policy does not provide coverage to Moriah for O'Bannon's workplace accident; 2) gave full faith and credit to a Texas judgment-rendered in favor of TMIC granting a motion for summary judgment and a petition for declaratory judgment-which held that TMIC had no duty to defend, indemnify, or reimburse Moriah in the instant suit; and, 3) dismissed TMIC from the instant suit, with prejudice. The WCJ certified the partial summary judgment as final pursuant to La. C.C.P. art. 1915(B) and issued written reasons for judgment. O'Bannon now appeals the January 20, 2017 judgment, arguing the WCJ erred in concluding that no workers' compensation coverage existed in his or Moriah's favor under TMIC's policy of workers' compensation insurance and that the WCJ erred in granting summary judgment in favor of TMIC, dismissing the insurer from the suit, with prejudice.

TMIC'S MOTION TO SUPPLEMENT THE RECORD

While the prior appeal was pending, TMIC obtained a judgment from the 261st Judicial District Court ("JDC") of Travis County, Texas in Texas Mutual Insurance Company v. Moriah Technologies, Inc., cause no. D-1-GN-14-000479. The judgment, signed January 5, 2016, granted summary judgment and declaratory judgment in favor of TMIC and 1) held that TMIC had no duty to defend, indemnify, or reimburse Moriah regarding O'Bannon's claims for workers' compensation benefits in the OWC in Louisiana; and, 2) dismissed Moriah's counterclaims for breach of contract, bad faith, and late payment of claims in the Texas suit. This is the Texas judgment referred to in the WCJ's January 20, 2017 judgment granting summary judgment in favor of TMIC.

Thereafter, TMIC petitioned the 14th JDC in Calcasieu Parish, Louisiana to recognize the January 5, 2016 Texas judgment and make it executory in the State of Louisiana. In an order signed June 13, 2017, the trial court ordered that the Texas judgment be registered, recognized, enforced, and made executory in the State of Louisiana in accordance with the Louisiana Enforcement of Foreign Judgments Act ("LEFJA"). See La.R.S. 13:4241 -4248.

TMIC filed the instant unopposed motion to supplement the appellate record with copies of the January 5, 2016 Texas judgment and the June 13, 2017 judgment of the 14th JDC. This court entered an interim order referring TMIC's motion to supplement the appellate record to the panel to which the appeal is assigned.

As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Dev. Co. , 2011-1337 (La. App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. An appellate court must render its judgment upon the record on appeal, i.e. , that which is sent by the lower court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. See La. C.C.P. arts. 2164 and 2127 - 2128. The OWC has jurisdiction to correct an omission from the trial record on appeal. An appellate court can neither supplement the record nor consider documents on appeal which were not introduced or filed into the record during the proceedings below. See La. C.C.P. arts. 2088(4) and 2132 ; see also Strawn v. Superfresh , 98-1624 (La. App. 1st Cir. 9/24/99), 757 So.2d 686, 688 n.2.

The January 5, 2016 Texas judgment is already a part of the record on appeal. The Texas judgment was filed by TMIC in support of its motion for summary judgment and was properly authenticated by an affidavit. See Comments-2015, cmt. (c) to La. C.C.P. art. 966. To the extent TMIC seeks to supplement the appellate record with the Texas judgment, we deny the request as moot.

The June 13, 2017 judgment of the 14th JDC is not a part of the record on appeal; further, there is no evidence that judgment was presented to the OWC or filed into the record in the proceedings below. See Strawn, 757 So.2d at 688 n.2. Accordingly, TMIC's motion to supplement the appellate record with the June 13, 2017 judgment of the 14th JDC is denied. Since it lies outside the appellate record, that judgment will not be considered by this court.

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte , even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc. , 2011-0520 (La. App. 1st Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. As an appellate court, we are obligated to recognize any lack of jurisdiction if it exists. This court's appellate jurisdiction extends to "final judgments," which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083 ; Van ex rel. White v. Davis , 2000-0206 (La. App. 1st Cir. 2/16/01), 808 So.2d 478, 483. However, a judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis , 2001-1989 (La. 5/14/02), 817 So.2d 64, 66.

Subpart A of Article 1915 designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court, while Subpart B of Article 1915 provides that when a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay. Article 1915, in pertinent part, provides:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The January 20, 2017 judgment at issue herein, which grants summary judgment in favor of TMIC, falls within the first category identified in Subpart A of Article 1915 because the judgment dismisses TMIC from the suit, with prejudice. Under Article 1915(A)(1), the judgment is final for purposes of an immediate appeal, without the need for a designation of finality. For this reason, our jurisdiction extends to this appeal. Accordingly, the WCJ's Article 1915(B)(1) certification was unnecessary since the judgment was final pursuant to Article 1915(A)(1).

APPLICABLE LAW

TMIC moved for summary judgment on the basis that its policy of workers' compensation insurance issued to Moriah does not provide coverage in favor of O'Bannon or Moriah; that TMIC has no duty to defend, indemnify, or reimburse Moriah for the claims of O'Bannon pursuant to the policy; and, that Moriah does not qualify for reimbursement under the policy. The determination of motions for summary judgment in workers' compensation cases is subject to the same standards utilized in ordinary civil actions. Lilly v. Allied Health Care , 2007-0590 (La. App. 1st Cir. 6/6/08), 991 So.2d 1096, 1098, writ denied, 2008-2081 (La. 12/12/08), 996 So.2d 1117. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the OWC's determination of whether summary judgment is appropriate. See Lowe v. Noble, L.L.C. , 2016-1110 (La. App. 1st Cir. 10/17/17), 233 So.3d 28, 35, writ granted, decision rev'd, 2017-1948 (La. 2/9/18), 235 So.3d 1095.

The burden of proof on the motion for summary judgment rests with the mover, TMIC. See La. C.C.P. art. 966(D)(1). A summary judgment may be rendered on the issue of insurance coverage alone. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Perkins v. Entergy Corp ., 2009-0632 (La. App. 1st Cir. 6/10/10), 2010 WL 2332357, at **2-3 (unpublished opinion).

An insurance policy, like the workers' compensation insurance policy at issue here, is a contract between the parties and is interpreted according to ordinary contract principles. See Sims v. Mulhearn Funeral Home, Inc. , 2007-0054 (La. 5/22/07), 956 So.2d 583, 589. The court is to interpret the parties' intent in forming the contract. In ascertaining the common intent of the insured and insurer, courts begin their analysis by examining the words of the insurance contract. Anderson v. State Farm Fire & Cas. Ins. Co. , 2010-0036 (La. App. 1st Cir. 7/16/10), 42 So.3d 1140, 1143. In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. La. C.C. art. 2047 ; see also Sims , 956 So.2d at 589. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and courts must enforce the contract as written. La. C.C. art. 2046 ; see also Sims , 956 So.2d at 589 ; Magnon v. Collins , 98-2822 (La. 7/7/99), 739 So.2d 191, 197. Moreover, an insurance contract is construed as a whole, and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See La. C.C. art. 2050 ; see also Anderson , 42 So.3d at 1143-44.

Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions on the obligations they contractually assume. Marcus v. Hanover Ins. Co. , 98-2040 (La. 6/4/99), 740 So.2d 603, 606. Insurance policies are meant to effect coverage, and therefore, the contract is additionally interpreted to effect coverage where possible. However, if an ambiguity remains after applying the general rules of contractual interpretation to an insurance contract, the ambiguous contractual provision is construed against the insurer who furnished the contract's text and in favor of the insured. See La. C.C. art. 2056 ; see also Anderson , 42 So.3d at 1144. Exclusions must be clearly stated. See La. C.C. art. 2057 ; see also La. Maint. Servs. Inc. v. Certain Underwriters at Lloyd's of London , 616 So.2d 1250 (La. 1993). If the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Perkins , 2010 WL 2332357, at *3.

In the January 20, 2017 judgment currently on appeal, the WCJ granted summary judgment in favor of TMIC that its policy issued to Moriah does not provide coverage to Moriah for O'Bannon's accident, nor does the policy provide coverage directly to O'Bannon for workers' compensation benefits under the LWCA. The judgment further "recognize[ed] and [gave] full faith and credit" to the January 5, 2016 judgment of the 261st JDC of Travis County, Texas in Texas Mutual Insurance Company v. Moriah Technologies, Inc., cause no. D-1-GN-14-000479. In the January 5, 2016 Texas judgment, the district court granted a petition for declaratory judgment and a motion for summary judgment filed by TMIC in the 261st JDC. In the petition for declaratory judgment, TMIC sought a declaration from the Texas court that under its workers' compensation insurance policy issued to Moriah, TMIC has no duty to defend, indemnify, or reimburse Moriah from O'Bannon's claim for Louisiana workers' compensation benefits. In the motion for summary judgment, TMIC sought judgment in its favor on its claim for declaratory relief and the dismissal of Moriah's counterclaims for breach of contract, bad faith, and late payment of claims.

Louisiana courts are required to give full faith and credit to judgments of courts of its sister states. U.S. Const. art. 4, § 1. A state may deny full faith and credit to a judgment rendered by a court of another state when it is shown that the court rendering the judgment lacked jurisdiction over the parties or the subject matter or that the judgment was obtained through extrinsic fraud. Summers v. Pray , 2002-1840 (La. App. 1st Cir. 6/27/03), 850 So.2d 46, 50, writ denied, 2003-2593 (La. 12/12/03), 860 So.2d 1155. As set forth in our prior opinion, the OWC in Louisiana has exclusive jurisdiction over all claims or disputes arising under the LWCA, including but not limited to workers' compensation insurance coverage disputes. La. R.S. 23:1310.3(F) ; O'Bannon , 196 So.3d at 140-41. Thus, the WCJ was not required to give full, faith, and credit to the January 5, 2016 Texas judgment since the OWC in Louisiana has exclusive jurisdiction over the parties' insurance coverage dispute brought under the LWCA, not the 261st JDC of Travis County, Texas. See Id. We therefore reverse that portion of the WCJ's January 20, 2017 judgment.

DISCUSSION

The workers' compensation insurance policy in this case was issued to Moriah, a Texas corporation, by TMIC, the insurer of last resort for Texas employers who are unable to obtain workers' compensation insurance through the voluntary insurance market. TMIC argues that it was created by the Texas State Legislature to provide workers' compensation insurance coverage exclusively for Texas employers and is statutorily limited to providing workers' compensation insurance coverage in Texas for Texas employees.

TMIC asserts that its policy with Moriah does not provide other states' insurance, but rather includes a limited reimbursement endorsement for Texas employees who are injured in other jurisdictions. TMIC claimed that the endorsement specifically provided for the reimbursement of certain claims payments Moriah may be ordered to pay in another state, to a person who qualified for benefits in that other state, and who is a Texas employee.

In support of its motion for summary judgment, TMIC filed the workers' compensation insurance policy it issued to Moriah. The policy, a workers' compensation/employer's liability ("WC/EL") policy, No. TSF-0001151113 20111115, was issued on November 21, 2011, with a stated policy period of November 15, 2011 to November 15, 2012. Part One of the policy covers workers' compensation insurance, the sums the "insured" became legally obligated to pay as "benefits" required by the workers' compensation law because of "bodily injury" caused by an "accident" or "disease." Part Two of the policy covers employers' liability insurance, the sums the "insured" became legally obligated to pay as "damages" because of "bodily injury" caused by an "accident" or "disease." The definition of "insured" under the terms of the policy includes the employer named in Item 1 of the Information Page, that is, Moriah Technologies, Inc.

Part Three of the policy covers other states' insurance, and provides, in pertinent part:

PART THREE-OTHER STATES INSURANCE
A. How This Insurance Applies
1. This other states insurance applies only if one or more states are shown in Item 3.C. of the Information Page.
2. If you begin work in any one of those states after the effective date of this policy and are not insured or are not self-insured for such work, all provisions of the policy will apply as though that state were listed in Item 3.A. of the Information Page.
***
4. If you have work on the effective date of this policy in any state not listed in Item 3.A. of the Information Page, coverage will not be afforded for that state unless we are notified within thirty days.
B. NOTICE
Tell us at once if you begin work in any state listed in Item 3.C. of the Information Page.

Item 3 of the Information Page, provides, in pertinent part:

A. Workers' Compensation Insurance: Part One of the policy applies to the Workers' Compensation Law of the states listed here: TEXAS
B. Employers Liability Insurance: Part Two of the policy applies to work in each state listed in item 3A.
***
C. Other States Insurance: Part Three of the policy applies to the states, if any, listed here: NONE.

Our review of the record reveals that neither Louisiana nor any other state was listed under Item 3.A. or under Item 3.C. of the Information Page, and the record contains no notice of work in Louisiana or any other state.

The policy was also amended by several endorsements, including a "Limited Reimbursement for Texas Employees Injured in Other Jurisdictions" that deleted Part Three of the policy, "Other States Insurance," and replaced it with a "Limited Reimbursement Provision." The endorsement reads, in pertinent part:

This policy does not provide "other states" insurance coverage. This endorsement provides reimbursement coverage to you for those Texas employees who are described in the Texas Labor Code §§ 406.071 -.072. Therefore the coverage is for injuries to your Texas employees that occur in another state if (i) the injury would have been compensable had it occurred in Texas and (ii) the employee has significant contacts with Texas or the employment is principally located in Texas. An employee has significant contacts with Texas if the employee was hired or recruited in Texas, and (i) the employee was injured not later than one year after the date of hire; or (ii) has worked in Texas for at last ten working days during the twelve months preceding the date of injury.
Employees hired or recruited by you outside Texas to work in another state are specifically excluded from the terms and provisions of this policy. If you conduct business in states other than Texas, you must comply with those state laws. You must promptly notify your agent before you begin work in any jurisdiction other than Texas. We are not authorized to provide workers' compensation insurance in any jurisdiction other than Texas. You are responsible for all of your legal obligations for your failure to comply with requirements of the workers' compensation laws of any jurisdiction other than Texas.
***
I. Limited Reimbursement Provision
A. How this endorsement applies
This endorsement will reimburse you after you have made payments for benefits for injuries to your Texas employees required of you in another jurisdiction. This reimbursement provision only applies to bodily injury by accident including death or bodily injury by disease including death incurred by your employee who qualifies for Texas workers' compensation benefits under Sec. 406.071 of the Texas Labor Code.
***
II. Exclusions, Limitations and Conditions
The following conditions apply to the reimbursement afforded by this endorsement.
1. Nothing in this endorsement confers jurisdiction in another state or constitutes our doing business in another state.
2. Reimbursement will be made in Texas.
3. Travis County, Texas is the sole venue for any lawsuit involving reimbursement under this endorsement.

(Emphasis added.)

Pursuant to Texas Labor Code § 406.071(a), a Texas employee "who is injured while working in another jurisdiction" is entitled to Texas workers' compensation benefits if "the injury would be compensable if it had occurred in this state" and if "the employee has significant contacts with this state or the employment is principally located in this state." Section 406.071(b) further provides:

An employee has significant contacts with this state if the employee was hired or recruited in this state and the employee:
(1) was injured not later than one year after the date of hire; or
(2) has worked in this state for at least 10 working days during the 12 months preceding the date of injury.

Texas Labor Code § 406.072 provides that the principal employment location of a Texas employee is where "the employer has a place of business at or from which the employee regularly works," or where "the employee resides and spends a substantial part of the employee's working time."

Before addressing the issue of whether the TMIC policy issued to Moriah provided coverage to O'Bannon and Moriah, we must resolve a conflicts of law issue presented by the facts of this case. See La. C.C. arts. 3515 - 3549. A Louisiana appellate court may, on its own initiative, inquire into another state's law, where applicable. Gill v. Matlack, Inc. , 94-2546 (La. App. 1st Cir. 10/6/95), 671 So.2d 395, 398 n.6. O'Bannon and Moriah raised the conflict of law issue in opposition to TMIC's motion for summary judgment and in the briefs to this court. Therefore, TMIC had sufficient notice of the conflicts of law issue.

The issue presently before the court is one of insurance coverage, and therefore one of contract. Id. at 397. Louisiana Civil Code article 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Louisiana Civil Code article 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

Furthermore, as noted in our prior opinion, it is well established that where the parties stipulate the state law governing the contract, Louisiana conflict of laws principles require that the stipulation be given effect, unless there is statutory or jurisprudential law to the contrary or strong public policy considerations justifying the refusal to honor the contract as written. See O'Bannon , 196 So.3d at 141 n.8(citing La. C.C. art. 3540 and its Revision Comments; Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note, 95-3317(A) , 2001-2219 (La. App. 1st Cir. 11/20/02), 837 So.2d 11, 42-43, writs denied, 2003-0418 (La. 4/21/03), 841 So.2d 805, 2003-0438 (La. 5/16/03), 843 So.2d 1129, 1130; Melbert v. CompSource Oklahoma , 2014-356 (La. App. 3rd Cir. 10/1/14), 149 So.3d 841, 845 ).

As discussed above, at Item 3.A. of the Information Page, the parties stipulated that the policy applies to the workers' compensation law of Texas. Furthermore, the policy's limited reimbursement endorsement expressly limited reimbursements to Texas and set forth the venue for any lawsuits involving reimbursements as Travis County, Texas. In light of the stipulations made by the parties in the policy, we find that Texas law should be applied in determining whether the policy provided coverage to O'Bannon and Moriah.

Our review of the record reveals that neither Louisiana nor any other state was listed under Item 3.A. or under 3.C. of the Information Page, which expressly provides that the policy applies to the workers' compensation law of the State of Texas. Based on the clear and unambiguous terms of the policy, O'Bannon and Moriah are not entitled to receive benefits under the LWCA.

Furthermore, O'Bannon and Moriah are not entitled to coverage under the policy based on the limited reimbursement endorsement for Texas employees injured in other jurisdictions. The endorsement does not apply to "[e]mployees hired or recruited by you outside Texas to work in another state;" the endorsement only applies to Texas employees as defined by Texas Labor Code §§ 406.071 -072. First, there is no evidence that O'Bannon's injury would be compensable if it had occurred in Texas. See Texas Labor Code § 406.071(a)(1). TMIC disputed the compensability of O'Bannon's claims for workers' compensation benefits in Texas, which O'Bannon has not challenged in the Texas Division of Workers' Compensation ("DWC"). TMIC asserted that following his accident, O'Bannon reported his injury to Moriah and TMIC in July 2012, seeking Texas workers' compensation benefits. In August 2012, TMIC denied compensability and refused to pay benefits to O'Bannon. O'Bannon then filed a disputed claim for compensation in Louisiana in October 2012, seeking workers' compensation benefits under the LWCA.

Second, O'Bannon did not have significant contacts with Texas, and his employment with Moriah was not principally located in Texas. See Texas Labor Code §§ 406.071(a)(2), (b), and 406.072. Although O'Bannon was hired by Moriah following a meeting in November 2011 that occurred in Texas, O'Bannon lived in Louisiana when he was hired. Immediately following the Texas meeting, O'Bannon departed for Tennessee to begin work. At all times relevant herein, the majority of the work O'Bannon performed for Moriah occurred in Tennessee and Louisiana. O'Bannon was working at a jobsite in Louisiana at the time of his accident and injury. See O'Bannon , 196 So.3d at 131.

Furthermore, Moriah cannot satisfy the first condition of the policy's limited reimbursement endorsement, which only applies to "payments for benefits for injuries to your Texas employees." There is no evidence in the record that Moriah made any workers' compensation payments to O'Bannon based on his disputed claim for compensation. Additionally, O'Bannon is not a Texas employee as described in the Texas Labor Code §§ 406.071 -.072 as discussed above. Under the clear and unambiguous terms of the policy and the workers' compensation law of Texas, O'Bannon and Moriah are excluded from coverage and are not entitled to benefits pursuant to the LWCA.

CONCLUSION

Based on the record and the foregoing law and analysis, we hold that TMIC's workers' compensation insurance policy issued to Moriah does not provide Louisiana workers' compensation insurance coverage to O'Bannon. Furthermore, the policy does not provide Louisiana workers' compensation insurance coverage in favor of Moriah for O'Bannon's accident. Therefore, pursuant to the policy, TMIC has no duty to defend, indemnify, or reimburse Moriah for the claims of O'Bannon made in the Louisiana OWC.

DECREE

The motion to supplement the appellate record with copies of the January 5, 2016 judgment of the 261st JDC of Travis County, Texas in Texas Mutual Insurance Company v. Moriah Technologies, Inc. , cause no. D-1-GN-14-000479, and the June 13, 2017 judgment of the 14th JDC in Calcasieu Parish, Louisiana filed by the defendant/appellant, Texas Mutual Insurance Company, is denied.

The portion of the January 20, 2017 judgment of the Workers' Compensation Judge for District 06 of the Louisiana Office of Workers' Compensation giving full faith and credit to the January 5, 2016 judgment of the 261st JDC of Travis County, Texas in Texas Mutual Insurance Company v. Moriah Technologies, Inc. , cause no. D-1-GN-14-000479, is hereby reversed. The judgment is affirmed in all other respects. All costs of this appeal are cast to the plaintiff/appellant, Adam O'Bannon.

MOTION TO SUPPLEMENT DENIED; JUDGMENT REVERSED IN PART AND AFFIRMED IN ALL OTHER RESPECTS.

McClendon, J. concurs with reasons

McClendon, J., concurring.

Given that our record does not contain the judgment of the 14th Judicial District Court in Calcasieu Parish that purportedly gave full faith and credit to the January 5, 2016 judgment of the 261st Judicial District Court of Travis County, Texas, I concur in the result reached by the majority.

      The WCJ's original January 13, 2015 judgment did not address the claim asserted by O'Bannon against TMIC. This court issued an interim order inviting the WCJ to rule on O'Bannon's claim against TMIC. On March 31, 2016, the OWC supplemented the record with an amended and supplemental judgment dismissing O'Bannon's claims against TMIC, with prejudice, as well as with written reasons for final judgment addressing the decision to dismiss O'Bannon and Moriah's claims against TMIC.

      This court also awarded O'Bannon additional attorney fees for the defense of the appeal. O'Bannon, 196 So.3d at 142.

      Five months after the WCJ granted summary judgment in favor of TMIC, giving "full faith and credit" to the Texas judgment, TMIC obtained the June 13, 2017 judgment from the 14th JDC in Calcasieu Parish, which is where counsel for TMIC is located. TMIC petitioned the 14th JDC to make the Texas judgment executory in Louisiana in accordance with the LEFJA. The LEFJA requires a party to file an ex parte petition, annex the properly authenticated foreign judgment, and include a prayer "that the judgment be made executory in a court of this state. " (Emphasis added.) See La. R.S. 13:4242.

      See Texas Ins. Code §§ 2054.102 and 2054.151; see also Liberty Mut. Ins. Co. v. Texas Dep't of Ins. , 187 S.W.3d 808, 814 (Tex. App.-Austin 2006).

      In the memorandum filed in support of its motion for summary judgment, TMIC referenced the policy of insurance issued to Moriah, which it noted was also introduced into evidence during the trial of this matter. TMIC also attached a copy of the insurance policy to its motion for summary judgment; however, the policy TMIC actually attached was a policy issued to a corporation called Halas Structures, Inc., not the policy issued to Moriah.
      In opposition to TMIC's motion for summary judgment, O'Bannon and Moriah adopted and offered "all of the exhibits and testimony previously offered and accepted at the trial of this matter by all of the parties." Louisiana Code of Civil Procedure article 966(D)(2) states that the "court may consider only those documents filed in support of or in opposition to the motion for summary judgment." In this instance, O'Bannon and Moriah offered all of the trial exhibits in opposition to TMIC's motion. Although those exhibits had already been made part of the record, the exhibits were specifically offered by the parties in opposition to TMIC's motion for summary judgment; therefore, those exhibits do not constitute "other materials in the record." See Comment (k), Revisions Comments-2015, La. C.C.P. art. 966 ; c.f. Unifund CCR Partners v. Perkins , 2012-1851 (La. App. 1st Cir. 9/25/13), 134 So.3d 626, 632 (Mover introduced the "entire record" at the hearing of its motion for summary judgment; however, the only additional documents in the record were the petition, two unanswered requests for admissions of fact, and an answer to the petition, none of which established any material facts.).


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Ryan M. MARTINEZ v. Trevor M. WILSON, Chevy's Inc., ABC Insurance Company and DEF Insurance Company
    NUMBER 2017 CA 0922
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 03, 2018
    Paul A. Lea, Jr. Covington, LA Counsel for Plaintiff/Appellee Ryan M. Martinez
    Nicole DillonJesse P. Lagarde Hammond, LA, Counsel for Defendant/Appellant Trevor M. Wilson
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

In this personal injury action, defendant, Trevor Wilson, appeals from a judgment of the trial court awarding plaintiff, Ryan Martinez, damages in the amount of $35,128.66. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On October 12, 2007, Martinez was a patron at Chevy's, Inc. (Chevy's). While attempting to break up a fight between his friend, Christopher Forvendel, and Wilson, Martinez was struck in the face. Thereafter, on February 29, 2008, Martinez filed a petition for damages, naming Wilson, Chevy's, and their respective insurers as defendants. Martinez alleged that Wilson punched him in the left cheek, resulting in a mandible fracture, which required his jaw to be wired shut for approximately eight weeks and resulted in him losing thirty pounds, rendered him unable to eat solid foods, prevented him from speaking, prevented him from working, and forced him to drop two classes in which he was enrolled as a student. Martinez asserted that Wilson was liable for battery, entitling him to damages, including without limitation, present and future medical expenses, loss of income, and mental pain and suffering.

Thereafter, counsel for Martinez filed a motion for preliminary default, which the trial court granted on May 27, 2008. Following a hearing to confirm the default judgment, the trial court signed a judgment in favor of Martinez, awarding him special and general damages. Wilson appealed the trial court's judgment to this court, and we vacated the judgment, finding that Martinez had failed to produce sufficient evidence to establish a prima facie case, and remanded the matter to the trial court for further proceedings. Martinez v. Wilson, 15-0384, pp. 6-7 (La. App. 1st Cir. 12/17/15), 185 So.3d 65, 69.

On January 4, 2016, Wilson filed an answer to Martinez's petition, denying the allegations and raising affirmative defenses, including self-defense, failure to mitigate damages, and comparative fault of Martinez, Forvendel, and Chevy's. Following a one-day bench trial, the trial court signed a judgment on January 12, 2017, in favor of Martinez and against Wilson, finding Wilson was an intentional tortfeasor pursuant to La. C.C. art. 2323, and awarding damages (special and general) to Martinez in the amount of $35,128.66, subject to a credit for any restitution previously paid. In reasons for judgment issued on January 31, 2017, the trial court noted that its reference to La. C.C. art. 2323 was in error, and found Wilson to be 100 percent at fault. On the same date, the trial court signed an amended judgment, finding in favor of Martinez and against Wilson and again awarding damages (special and general) to Martinez in the amount of $35,128.66.

Thereafter, Wilson filed a motion and order of appeal from the trial court's January 12, 2017 judgment. On appeal, Wilson asserts that the trial court erred: by failing to find Martinez committed an intentional tort; in failing to apportion fault to Martinez and other actors; in failing to find Wilson acted in self-defense; and in awarding damages in the amount of $35,128.66.

DISCUSSION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 11-0520, p. 8 (La. App. 1st Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 12-0360 (La. 4/9/12), 85 So.3d 698. This court's appellate jurisdiction extends to "final judgments." La. C.C.P. arts. 1918 and 2083 ; Ball v. Heritage Manor of Mandeville, 06-1379, p. 1 (La. App. 1st Cir. 5/4/07), 961 So.2d 414, 415 ; Carter v. Williamson Eye Center, 01-2016, p. 3 (La. App. 1st Cir. 11/27/02), 837 So.2d 43, 44. A final judgment must contain decretal language. Ball, 06-1379 at p. 1, 961 So.2d at 415. Louisiana Code of Civil Procedure article 1918 states that "[a] final judgment shall be identified as such by appropriate language." It is well settled that a final judgment must be precise, definite, and certain. La. C.C.P. art. 1918 and Official Revision Comment (a); Laird v. St. Tammany Parish Safe Harbor, 02-0045, p. 2 (La. App. 1st Cir. 12/20/02), 836 So.2d 364, 365. Generally, a final judgment must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Gaten v. Tangipahoa Parish School System, 11-1133, p. 3 (La. App. 1st Cir. 3/23/12), 91 So.3d 1073, 1074. The amount of the recovery awarded by a judgment must be stated in the judgment with certainty and precision, so that a third person is able to determine from the judgment the party cast and the amount owed without reference to other documents in the record or extrinsic sources. See Vanderbrook v. Coachmen Industries, Inc., 01-0809, pp. 11-12 (La. App. 1st Cir. 5/10/02), 818 So.2d 906, 913-914.

The judgment at issue in the instant case awards damages in the amount of $35,128.66, subject to a "credit for any restitution ... previously paid ... in connection with this matter." Because the amount of the credit is not apparent from a reading of the judgment, and requires reference to extrinsic sources, the amount of damages is not stated with certainty and precision, and the judgment is not a valid, final judgment. As such, this court lacks jurisdiction to consider the merits of the appeal. See Gaten, 11-1133 at p. 4, 91 So.3d at 1074.

CONCLUSION

For the foregoing reasons, we dismiss the appeal. All costs of this appeal are assessed to Trevor M. Wilson.

APPEAL DISMISSED.

Pettigrew, P. concurs.

      Martinez also asserted claims of negligence on the part of Chevy's and/or its employees. However, Chevy's was subsequently dismissed from the action pursuant to a judgment granting its motion for summary judgment, wherein the trial court found that there was no basis of liability in tort, whether negligent or intentional, against Chevy's as a matter of law. This judgment was affirmed by this court in Martinez v. Wilson, 09-0442 (La. App. 1st Cir. 10/23/09) (unpublished opinion).


author: CRAIN, J.

text:
    Terri CLARK and Betty Clark v. EAST BATON ROUGE PARISH DEPARTMENT OF PUBLIC WORKS
    NO. 2017 CA 1445
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 06, 2018
    David A. Conachen, Kelly E. Balfour, Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellants, Terri Clark and Betty Clark
    Lea Anne Batson, Parish Attorney, Gwendolyn K. Brown, Special Assistant Parish Attorney, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, City of Baton Rouge/Parish of East Baton Rouge
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The plaintiffs, Terri Clark and Betty Clark, appeal a summary judgment dismissing their claims with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

The Clarks owned a building containing four apartments at 9121 Great Smokey in Baton Rouge. To address drainage issues with the sewer system on the property, the City of Baton Rouge/Parish of East Baton Rouge, through its Department of Public Works, installed a pump, sometimes referred to as a "liberty pump," in the property's sewer service line in July 2002, and later replaced the pump in November 2004. The Clarks filed this suit on March 9, 2005, alleging the apartment building sustained damage on several occasions from December 2000 through March 2005, because the liberty pumps were defective, the City/Parish failed to properly install or maintain the pumps, and the City/Parish failed to maintain storm drains.

The City/Parish filed an exception of prescription, which the trial court granted. In a previous appeal, this court affirmed the trial court's judgment to the extent it dismissed the Clarks' claims for incidents occurring before March 9, 2004, but reversed and remanded with respect to claims arising on or after that date. See Clark v. E. Baton Rouge Parish Department of Public Works , 15-1646 (La. App. 1 Cir. 6/3/16), 196 So.3d 142, 149.

On remand, the City/Parish filed a motion for summary judgment requesting dismissal of the remaining claims, arguing the Clarks could not meet their burden of proof. The trial court agreed and, in a judgment signed April 12, 2017, dismissed the Clarks' petition. The Clarks appeal.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966D(1).

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66 ; Smith , 639 So.2d at 751. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

The claims herein based on the allegedly defective nature of the liberty pumps, whether under Louisiana Civil Code article 2317 or under Louisiana Civil Code article 2315, are subject to the same burden of proof. The Clarks must prove (1) the City/Parish had custody of the pumps, (2) the pumps were defective because they had a condition that created an unreasonable risk of harm, (3) the City/Parish had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause in fact of the alleged damages. See La. R.S. 9:2800 ; Fontenot v. Patterson Insurance, 09-0669 (La. 10/20/09), 23 So.3d 259, 267-68 ; Lee v. State, Department of Transportation and Development, 97-0350 (La. 10/21/97), 701 So.2d 676, 677-78 ; Greene v. Succession of Alvarado, 15-1960 (La. App. 1 Cir. 12/27/16), 210 So.3d 321, 332-33.

In support of its motion, the City/Parish submitted numerous exhibits, including the deposition of Greg Wiley, the current manager of the Wastewater Collection Division of the City/Parish's Department of Public Works; the depositions of Terri Clark and Betty Clark; and documentation generated by the City/Parish in connection with the installation, maintenance, repair, and replacement of the pumps. Wiley explained that liberty pumps are typically needed when the normal gravity flow is not sufficient to properly drain a building's sewer system into the municipal line. The City/Parish installs the pump in the property owner's service line, and it pumps sewerage from the building to the municipal line. The only cost incurred by the property owner is the electrical expense necessary to operate the system. The City/Parish also agrees to repair and replace the system, which contains an alarm designed to notify the property owner if the pump malfunctions. The owner is provided a number to call for assistance. As of the date of Wiley's deposition, the City/Parish had installed about 900 liberty pumps.

A liberty pump was installed on the Clarks' property on July 24, 2002. At that time, the property was owned by Bill Clark, Betty's husband and Terri's father, who signed an agreement with the City/Parish allowing installation of the pump, confirming the owner would restrict solid waste from entering the system, and agreeing the owner would immediately contact and advise the City/Parish of any difficulties with the system. The City/Parish's records reflect no service requests on the property until about eighteen months later on February 6, 2004, when the owner complained sewerage was backing up due to weather conditions. An inspector went to the site and confirmed that the municipal lines were clear.

The next service request was about a month later on March 12, 2004, which resulted in a maintenance check of the system the same day. The records indicate the pump would not work due to grease on the pump floats, which Wiley explained can cause the pump to malfunction and, in this instance, resulted in a blown fuse. In addition to grease, the repairman also found "Q-tips" and other debris in the pump. After the pump was cleaned and the fuse replaced, the system was tested and worked as designed. The records reflect Betty and Terri came to the property and were told the situation was a "pump malfunction"; however, the documentation indicates the malfunction was caused by impermissible solid waste in the system. The City/Parish representative explained to the Clarks how the pump works. The City/Parish offered to install some grease traps, and the records suggest work may have been done on March 31, 2004.

The next maintenance call was several months later on November 3, 2004. According to a report written by the responding City/Parish employee, the breaker on one of the pumps was tripped. After the breaker was reset, the alarm sounded and the second pump came on and emptied the tank. The report explains the system is designed for the second pump to activate if the first pump fails. The alarm box appeared to have been opened, and the employee reset the gasket on the door and tightened the screws. An electrician was called to the scene, and he replaced the inoperative pump. The documentation indicates a large amount of grease was found in the system tank, and solid waste, including a face cloth and personal hygiene items, were in the pumps.

The claims at issue are based on events that allegedly occurred during 2004. Terri Clark submitted an affidavit stating the property experienced "backups to sewer lines and/or interior damage due to overflow of sewage" (emphasis added) on four dates in 2004: February 3, March 9, March 17, and November 3. At her deposition, Terri conceded she could not remember the dates when the building actually sustained damage, but agreed the claim documentation sent in 2004 identified two dates when sewerage backup caused damage: March 9, 2004, and November 2, 2004.

Pretermitting consideration of the first two elements of the Clarks' burden of proof, we find the evidence submitted by the City/Parish sufficiently points out an absence of factual support for the third element of the plaintiffs' burden-proof the City/Parish had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time. The burden of proof thus shifted to the Clarks to produce factual support sufficient to establish the existence of a genuine issue of material fact. See La. Code Civ. Pro. art. 966D(1).

The Clarks presented no evidence establishing the City/Parish had actual knowledge of any defect in the liberty pump and failed to take corrective measures within a reasonable time. To the contrary, the records maintained by the City/Parish confirm its employees promptly responded when notified of any problems potentially involving the pump. On each occasion, the responding employees performed the necessary maintenance and repairs, and, when required, arranged for replacement of the pump the same day.

Absent actual knowledge of any defect, the Clarks must present evidence the City/Parish had constructive notice of a defect. Louisiana Revised Statute 9:2800D defines "constructive notice" as "the existence of facts which infer actual knowledge." Constructive knowledge may be shown by facts demonstrating the defect or condition existed for such a period of time that it would have been discovered and repaired had the public body exercised reasonable care. Greene, 210 So.3d at 334. A public entity has constructive knowledge if it "knew or should have known" of the defective condition. Id.

Quoting testimony from Wiley, the Clarks assert the liberty pumps are "cheap disposable pumps" that are "easily clogged," and, therefore, the City/Parish should have known the pumps were defective and conducted periodic inspections. The Clarks selectively quote Wiley's characterization of the pumps as "cheap," while ignoring his description of their reliability:

They do work well. You can see that they last for a couple of years without any-without any issues. So they do their job and then in the occasion that there is a failure, you know, we have a pretty fast response to correct those.

The Clarks further contend the evidence presents a genuine issue of material fact with respect to the cause of the pump's malfunction on the occasions at issue, citing a conflict in the evidence as to whether the system contained impermissible solid waste when it was serviced in November 2004. Any factual issue in that regard, however, bears on whether the system was defective, not whether the City/Parish had notice of any defect in the liberty pump and, after receiving notice, failed to take corrective measures within a reasonable time. The evidence establishes the City/Parish was notified of a reported issue with the liberty pump on two occasions in 2004, and, each time, promptly responded and restored the system to operation.

With 900 liberty pumps located within its jurisdiction, the City/Parish relies on property owners to report any problems with a system, which is equipped with an alarm designed to notify the owner when a pump malfunctions. We reject the Clarks' contention that the obligation to maintain the pumps requires the City/Parish to regularly inspect each and every one of these pumps absent notification or knowledge of a problem. Cf. Jones v. Hawkins, 98-1259 (La. 3/19/99), 731 So.2d 216, 220 (holding that municipality's duty to maintain its public ways does not encompass conducting periodic inspections of its streets, and the failure to conduct such inspections does not imply knowledge of a dangerous defect on those streets).

The Clarks failed to present evidence establishing a genuine issue of material fact concerning the City/Parish's knowledge, actual or constructive, of any defect in the liberty pump, and its alleged failure to take corrective measures within a reasonable time of having acquired such knowledge. The trial court did not err in granting summary judgment to the City/Parish.

CONCLUSION

The April 12, 2017 judgment is affirmed. All costs of this appeal are assessed to Terri Clark and Betty Clark.

AFFIRMED.

      The Clarks sued the "East Baton Rouge Parish of Department of Public Works," but the City/Parish filed responsive pleadings. We will refer to the defendant herein as the "City/Parish."

      The evidence indicates the system installed for the Clarks actually contains two pumps. For simplicity, we will refer to the system in the singular as a "liberty pump."

      Although the petition includes allegations of flooding through 2005, Terri Clark confirmed at her deposition that the plaintiffs are not pursuing any claims for damages allegedly sustained in 2005, and no evidence was presented to establish any damages during that year.

      The petition also alleges the City/Parish negligently installed the liberty pumps and failed to properly maintain storm drains. The Clarks presented no evidence or argument in support of those claims, which we likewise find were properly dismissed in the summary judgment.


text:
    STATE of Louisiana v. Tommie ANDERSON
    NUMBER 2017 KA 0927
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 6, 2018
    Scott M. Perrilloux, District Attorney, Patricia Amos, Assistant District Attorney, Amite, LA, Counsel for Appellee State of Louisiana
    Katherine M. Franks, Madisonville, LA, Counsel for Defendant/Appellant Tommie Anderson
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

The defendant, Tommie Anderson, was charged by bill of information with attempted aggravated rape, a violation of Louisiana Revised Statutes 14:42A(4) and 14:27 (victim under the age of thirteen) (prior to revision by 2015 La. Acts Nos. 184, § 1 and 256, § 1). He entered a plea of not guilty and, following a jury trial, was found guilty of sexual battery, a violation of Louisiana Revised Statutes 14:43.1 (prior to revision by 2015 La. Acts No. 256, § 1). The defendant filed motions for new trial, postverdict judgment of acquittal, and in arrest of judgment, all of which were denied. The defendant was then sentenced to a term of imprisonment of seventy-five years at hard labor without the benefit of parole, probation, or suspension of sentence. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, alleging four assignments of error. For the following reasons, we reverse the defendant's conviction, vacate the sentence, and remand to the district court for a new trial.

FACTS

During November of 2014, approximately one week prior to Thanksgiving, Monica Travis brought her children and her niece, A.W., the victim, to the defendant's home to stay overnight because she and the victim's mother had to work. The defendant was the grandfather of Travis's children, but was not related to the victim. The following day, Travis picked the children up from the defendant's home. A couple of days later, when Travis asked the victim if she wanted to return to the defendant's home, the victim declined. Travis noticed that the victim was walking "funny," and was advised by the victim's mother that the victim had a rash on her "butt area" that was not there prior to her stay at the defendant's home. Travis brought the victim to her home in order to treat the rash and noticed that in addition to the rash, which Travis described as "raw," the victim had vaginal discharge. Travis asked the victim who had been "touching on [her]," and the victim dropped her head and disclosed, "Paw-Paw did it." Thereafter, the victim was transported to North Oaks Hospital in Hammond, Louisiana, for an examination. Tangipahoa Parish Sheriff's Office Detective Chris Perry was dispatched to the hospital and spoke with the victim and her family members who were present at the hospital. The detective then arranged for the victim to complete a forensic interview at the Children's Advocacy Center, as well as a medical examination at the Audrey Hepburn Care Center. According to the nurse practitioner who examined the victim on December 8, 2014, there was hypopigmentation in the victim's genital area consistent with a friction that would have caused a change in the skin. After receiving information from the Care Center, Detective Perry obtained a warrant for the defendant's arrest.

At trial, the victim testified that when she was eight years old, during November 2014, approximately one week prior to Thanksgiving, she went to the defendant's house with three of her cousins. She and her three cousins fell asleep at the foot of the bed in the defendant's room, and the defendant woke her up and told her to move to the top of the bed with him. The defendant then pulled the victim's pants down, pulled down his pants, and removed his "private part." According to the victim, the defendant stuck his "private part" in her "back private part" and it touched her "front private part" as well. The victim explained that the defendant moved his body "front and back" and told her to "lay back." She further explained that it hurt and when he stopped, the defendant gave her a towel and fresh clothing, told her to "wipe [herself]," and to not tell anyone. When she wiped herself off, she noticed wet "green stuff."

NON-RESPONSIVE VERDICT

In his first assignment of error, the defendant argues that the district court erred in instructing the jury that sexual battery was a proper responsive verdict for attempted aggravated rape and in accepting it as a valid verdict.

Under Article 814A(9) of the Louisiana Code of Criminal Procedure (prior to amendment by 2015 La. Acts No. 184, § 6), the only responsive verdicts which may be rendered to the charge of attempted aggravated rape are the following:

Guilty.
Guilty of attempted forcible rape.
Guilty of attempted simple rape.
Not Guilty.

By the express terms of Article 814, the responsive verdicts prescribed therein are the "only responsive verdicts which may be rendered" where the indictment charges the crimes set forth in Article 814. Attempted aggravated rape is one of the crimes for which responsive verdicts are prescribed by Article 814. Because the responsive verdicts given by the district court judge are mandated by Article 814, he was without authority to vary or add to those prescribed. State v. Simmons, 357 So.2d 517, 518 (La. 1978).

The district court submitted a list of responsive verdicts to the jury before it retired for deliberation which included five verdicts that are not responsive under Article 814A(9): (1) guilty of sexual battery, (2) guilty of molestation of a juvenile, (3) guilty of attempted molestation of a juvenile, (4) guilty of indecent behavior with a juvenile, and (5) guilty of attempted indecent behavior with a juvenile. The district court explained:

I will tell you just so you know, if you look at whatever that code of criminal procedure article is, there is a responsive verdict for attempt aggravated rape, but it is not attempt aggravated rape of a 13 year-old. If you look directly above that, I think there is an aggravated rape of a 13 year-old.
So what I did was copy those statutes, but use the attempts of them so that it mirrors what it would be aggravated rape for someone under the age of 13, which I think most closely resembles what we have.... I copied 8.1 under 814 as opposed to 9 and you will see why. Because 8.1 is aggravated rape of a child under the age of 13. Number 9 is attempt aggravated rape but it is not of the age under 13. So my responsive verdicts mirror what would [sic] under age of 13 would be. There is a bunch of them. Attempt[ed] [aggravated], forcible, simple, sexual battery, molestation, attempted molestation, indecent behavior, and attempted indecent behavior. I don't have any special jury instructions besides what we normally do.

Although the district court was bound by Article 814A(9), it ignored that article and proceeded under La. C. Cr. P. art. 815, adding what it considered to be lesser included verdicts. Article 815 provides, "In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or (3) Not Guilty". (Emphasis added.)

There was no objection by the defendant to the charges, and the jury, following the district court's instructions, returned a verdict of guilty of sexual battery. The verdict is clearly nonresponsive. Although the verdict was induced by erroneous instructions provided by the trial court without objection, the verdict is nevertheless non-responsive and should have been refused by the trial court in accordance with La. C. Cr. P. art. 813. See State v. Thibodeaux, 380 So.2d 59, 60-61 (La. 1980).

Louisiana Code of Criminal Procedure article 920(2) provides that this Court shall consider on appeal "an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." The jury's verdict is part of the pleadings that this Court must review for errors. See Thibodeaux, 380 So.2d at 61. Because the verdict is invalid and because a sentence based on an invalid verdict is itself invalid, the conviction and sentence of the defendant must be set aside. See La. C. Cr. P. art. 872(3).

The Louisiana Supreme Court has rendered several opinions finding remanding for a new trial to be the appropriate remedy when the jury returns a nonresponsive verdict. See State v. Campbell, 95-1409, p. 5 (La. 3/22/96), 670 So.2d 1212, 1214 (per curiam); State v. Mayeux, 498 So.2d 701, 705 (La. 1986) ; Thibodeaux, 380 So.2d at 61-62.

In a recent opinion, however, the Louisiana Supreme Court came to a different conclusion. See State v. Graham, 14-1801 (La. 10/14/15), 180 So.3d 271 (per curiam). Graham was charged with aggravated incest. After the defendant rested his case and it became apparent that the State failed to carry its burden of proof on the aggravated incest charge, the district court allowed the State to add molestation of a juvenile as a responsive verdict over the defendant's objection, and the jury found the defendant guilty of molestation of a juvenile. The Louisiana Supreme Court found that molestation was not a lesser included offense of aggravated incest and that the defendant's trial was rendered "fundamentally unfair" when the court allowed the State to add the responsive verdict even though the defendant had no opportunity to mount a defense concerning an additional essential element of that offense. The Supreme Court reversed and vacated the defendant's conviction and sentence, and remanded to the district court for entry of a postverdict judgment of acquittal. Graham, 14-1081 at pp. 1-2, 180 So.3d at 273.

We find that Graham is distinguishable from the instant appeal. In Graham, the nonresponsive verdict was added to the jury instructions over defense counsel's objection after both parties rested and after the State failed to prove that the offense occurred when the defendant and the alleged victim shared a relationship of affinity. The court noted:

Evidently suspecting defendant might be acquitted after it failed to prove the offense occurred when defendant and the alleged victim shared a relationship of affinity, the State attempted to relieve itself of its burden of proving the element of affinity by shifting its focus to arguing it had proven the additional element required to convict a defendant of molestation of a juvenile-that is, that the molestation was committed "by the use of influence by virtue of a position of control or supervision. " La. R.S. 14:81.2. No voir dire was conducted regarding "control or supervision." It was not mentioned in opening remarks. No evidence was presented regarding "control or supervision" at trial. Indeed, no evidence could be adduced on this new element once it became central to the case because both sides had rested by the time the court permitted the State to add this new offense as a responsive verdict. (Emphasis in original).

Graham, 14-1081 at p. 4, 180 So.3d at 274. The parties in the instant appeal raised no objections to the proposed jury instructions, which were agreed upon prior to trial. No additional responsive verdicts were added to the proposed jury instructions after the parties rested. Thus, although the district court's error in the instant appeal rendered the entirety of the trial fatally defective, we cannot say that the proceedings were "fundamentally unfair." Further, the State presented sufficient evidence to support the charged offense. Thus, remand for a new trial is the appropriate remedy.

The defendant argues that an acquittal should be entered and that jeopardy should be deemed to have attached. A new trial is required in this case, not because the evidence was insufficient to support the charge, as in Graham, but rather because judicial error prevented the jury from rendering a responsive verdict. The Double Jeopardy Clause forbids a second trial when the prosecution fails to muster sufficient evidence to convict the defendant in the first proceeding. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). However, double jeopardy does not preclude the State from retrying a defendant whose conviction is set aside because of judicial error. This reflects a balancing of the defendant's interest in seeing that criminal proceedings against him are resolved once and for all in a single prosecution against society's valued interest in enforcement of its criminal laws. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). To allow another prosecution when patent error has occurred at trial, "reflects the judgment that the defendant's double jeopardy interests ... do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error." Jorn, 400 U.S. at 484, 91 S.Ct. at 556. See Mayeux, 498 So.2d at 705.

Moreover, we note that the error should have been raised by the defendant in a motion in arrest of judgment. See La. C. Cr. P. art. 859(5). Had the defendant proceeded properly to remedy the district court's error by filing a motion in arrest of judgment, he would have been granted a new trial. See La. C. Cr. P. art. 862 ("If the judgment is arrested ... because the verdict is not responsive to the indictment or is otherwise fatally defective, the defendant shall be remanded to custody or bail to await a new trial.") Accordingly, we reverse the defendant's conviction, vacate the sentence, and remand to the district court for a new trial. Our resolution of this assignment of error causes us to pretermit discussion of the remaining assignments of error.

CONVICTION REVERSED, SENTENCE VACATED, AND CASE REMANDED FOR NEW TRIAL.

      The victim herein will be referenced by initials only. See La. R.S. 46:1844W.

      Article 813 provides the procedure to be followed when the jury returns an improper verdict: "If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal."

      We note that the defendant in Mayeux was subsequently granted habeas corpus relief from a federal district court. Mayeux v. Belt, 737 F.Supp. 957, 961 (W.D. La. 1990). Regardless of whether the Louisiana Supreme Court's decision in Mayeux remains viable, the defendant herein was not found guilty of a non-crime. The defendant in Mayeux was found guilty of a non-crime, i.e., attempted aggravated battery.

      Although the defendant did file a motion in arrest of judgment, it was based on other grounds.


text:
    STATE of Louisiana v. Kyren Davonta EBY
    NO. 2017 KA 1456
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 06, 2016
    Hillar C. Moore III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, State of Louisiana
    Cynthia K. Meyer, New Orleans, Louisiana, Attorney for Defendant/Appellant, Kyren Davonta Eby
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The defendant, Kyren Eby, appeals his conviction for second degree murder and life sentence at hard labor without the benefit of parole, probation, or suspension of sentence. We affirm.

FACTS

On September 26, 2013, between 10:00 and 11:00 a.m., the defendant shot and killed Garland Ruffin in the parking lot of the apartment complex where they both lived. The two men first engaged in a fistfight in the parking lot, then each briefly went back to his own apartment. They returned to the parking lot, exchanged words, and the defendant shot the unarmed victim.

Tiffany Vessel, the victim's girlfriend, witnessed the defendant shoot the victim. She claims the victim was shot while nervously attempting to back away. The defendant disputes that version of the events and claims he acted in self-defense, shooting the victim as he threateningly approached and appeared to be drawing a weapon.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant argues the evidence was insufficient to support his conviction.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. Pursuant to the applicable due process standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." When a conviction is based on circumstantial evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt every reasonable hypothesis of innocence had been excluded. State v. Jones , 16-1502 (La. 1/30/18), --- So.3d ----, ----, 2018 WL 618433. This does not mean the reviewing court determines whether the defendant has suggested another possible hypothesis that could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the state and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not have found proof of guilt beyond a reasonable doubt. Jones, --- So.3d at ----. Further, since the weight given evidence is not subject to appellate review, evidence will not be reweighed by the reviewing court to overturn a factfinder's determination of guilt. State v. Wilson , 15-1794 (La. App. 1 Cir. 4/26/17), 220 So.3d 35, 41.

Relative to this case, second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. See La. R.S. 14:30.1A(1). Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent may be formed in an instant. State v. Mickelson, 12-2539 (La. 9/3/14), 149 So.3d 178, 183. Because it is a state of mind, specific intent need not be proven as a fact, but may be inferred from circumstances surrounding the offense and the defendant's actions. Mickelson, 149 So.3d at 182. For example, specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Reed , 14-1980 (La. 9/7/16), 200 So.3d 291, 309, cert. denied, --- U.S. ----, 137 S.Ct. 787, 197 L.Ed.2d 258 (2017).

The defendant does not dispute drawing a gun, pointing it at, and shooting the victim. Rather, he claims he acted in self-defense. A homicide is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." La. R.S. 14:20A(1). An aggressor may not claim self-defense without showing he first withdrew from the conflict in good faith and in such a manner that his adversary knew or should have known of his intention to withdraw and discontinue the conflict. La. R.S. 14:21. When a defendant asserts he acted in self-defense, the state bears the burden of establishing beyond a reasonable doubt the defendant did not act in self-defense. Reed , 200 So.3d at 309. On appeal, the defendant argues the state failed to meet that burden.

Alternatively, the defendant contends the evidence was sufficient only to prove he committed manslaughter. Manslaughter is, pertinently, a homicide that would be second degree murder but is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31A(1). "Sudden passion" and "heat of blood" are mitigating factors in the nature of a defense. If the defendant establishes those factors by a preponderance of the evidence, a verdict for murder is inappropriate. Reed , 200 So.3d at 311 ; State v. LeBoeuf , 06-0153 (La. App. 1 Cir. 9/15/06), 943 So.2d 1134, 1138, writ denied , 06-2621 (La. 8/15/07), 961 So.2d 1158. However, provocation will not reduce a homicide to manslaughter if the factfinder finds the offender's blood had actually cooled, or an average person's blood would have cooled, at the time the offense was committed. See La. R.S. 14:31A(1). Provocation and time for cooling off are determinations made by the jury using the standard of the average or ordinary person with ordinary self-control. Reed , 200 So.3d at 311.

Vessel lived with the victim and testified he walked outside to talk on his phone around 10:00 a.m. Approximately twenty minutes later, Vessel called the victim, who confirmed he was outside. Fifteen to twenty minutes after that, the victim returned to the apartment, sweating and breathing heavily, told Vessel he was in a fight, and began searching for his tennis shoes. The victim told Vessel to follow him, indicating he was going to engage in another fight.

Vessel followed the victim, who changed from flip flops to tennis shoes in the parking lot, and observed the defendant standing outside his apartment, two buildings over. The victim walked in that direction and "exchange[d] words" with the defendant from approximately five or six feet away. Vessel testified the victim lifted his hands in a manner signaling, "What's up ... you want to fight." She testified the defendant stood, arms folded, with a "smirk" on his face.

Vessel explained that when the victim walked on the sidewalk in front of the defendant's apartment, the defendant pulled a gun. She claimed the victim raised his arms again and nervously began retreating. While the victim backed up, the defendant fired three shots, and the victim fell to the ground. Vessel testified the defendant walked toward her and lifted his arm as if to shoot her, then lowered his arm and walked toward his apartment. Vessel ran to her apartment to get her phone and, as she was calling 911, saw the defendant leave in a car.

Vessel identified the defendant as the shooter in a photographic lineup and also in court. She said she had seen the defendant around the apartment complex before the shooting, but never spoke to him and never saw any interaction between him and the victim before that day. She testified the victim was unarmed when he was shot.

Dr. Cameron Snyder conducted the victim's autopsy and testified he suffered two gunshot wounds, one in the neck and the other striking the left arm then entering the victim's chest, injuring both his lungs and heart. Dr. Snyder identified the cause of death as a gunshot wound to the thorax and noted a yellow-green part of a bullet found inside the victim's body. Dr. Snyder opined the victim was shot while his left arm was either outstretched forward or across his body toward the right, possibly explaining the bullet's trajectory. He indicated the bullets were fired from the victim's left and from an indeterminate range of several feet or more, not at close or medium range.

Baker Police Department Detective Greg Brown arrived at the scene at approximately 11:07 a.m. and observed medical services administering care to the victim. He learned Vessel was an eyewitness to the shooting and, after taking her statement, determined the defendant was the shooter. Detective Brown was told the defendant fled with a female in a red Impala, which was later located approximately one block away at the apartment of the defendant's sister. No evidence was found in the Impala; however, officers searching the sister's apartment located nine millimeter rounds with distinctive green tips like those removed from the victim's body and the same type of casings found at the crime scene. Detective Brown spoke with the defendant later that same day and noted the defendant had fresh, superficial injuries consistent with a fistic encounter, including bruising and abrasions to his face near his eye and a small abrasion on his right leg.

The defendant's girlfriend, Miesha Scott, was inside the defendant's apartment during the shooting. She testified she and the defendant were sleeping, when someone outside could be heard talking on the phone. The defendant went outside and returned ten to twenty minutes later with his eyeglasses missing and scratches on his face. She testified the defendant did not tell her what happened, but then admitted telling detectives the defendant told her "he shot him" and asked to be driven to his sister's residence. She saw a man she did not recognize who was shot and on the ground yelling. She walked past the man to reach her vehicle to leave, explaining she was pregnant and panicked.

The defendant testified. He explained that on the morning of the shooting, he was sleeping after working the nightshift, and was awakened by someone outside his window arguing on the phone. He went outside and saw the victim, who seemed "pretty upset," and asked him to hold it down. The defendant said the victim came toward him, asked who he was talking to, and as the defendant repeated himself, the victim punched him in the face. A fistfight ensued and the victim, who was approximately fifty pounds heavier, tackled the defendant. The defendant claimed the victim then jumped up, stated "I'm fixing to show you," and ran off.

After the victim left, the defendant went inside his apartment, believing the encounter was over. To get out of the area, he planned to get something to eat with Scott. Before going outside to wait for Scott, the defendant picked up his gun, explaining he usually carried it with him. Seconds after going back outside, the defendant saw the victim running across the parking lot toward him. According to the defendant, the victim was approximately five to six feet away when he reached toward his waistband, "saying something along the lines of, 'what's up now?' " Fearful he was reaching for a gun, the defendant pointed his own gun at the victim, who did not stop running, so he pulled the trigger. The defendant then left with Scott, explaining he did not call for help because he did not have a cell phone.

The defendant denied seeing Vessel or pointing his gun at her. He heard Vessel's contradictory testimony, but maintained she lied and did not witness the shooting.

The jury can accept or reject the testimony of any witness. State v. Mire , 14-2295 (La. 1/27/16), --- So.3d ----, ---- (2016 WL 314814). To resolve conflicting testimony relative to factual matters, the jury must make credibility determinations and weigh the evidence. Reed , 200 So.3d at 312. The Jackson standard of review does not permit a reviewing court to substitute its own appreciation of the evidence for the factfinder's, assess the credibility of witnesses, or reweigh evidence. See State v. McGhee , 15-2140 (La. 6/29/17), 223 So.3d 1136, 1137 ; State v. Calloway , 07-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam ). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the jury, is sufficient to support a factual conclusion. Reed , 200 So.3d at 312. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict based on an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. Calloway , 1 So.3d at 418.

The jury credited Vessel's testimony over the defendant's, which reasonably supports its determination that the defendant shot the victim with specific intent to kill, not in self-defense or in sudden passion or heat of blood. The jury's determination was not irrational under the facts and circumstances presented. See State v. Ordodi , 06-0207 (La. 11/29/06), 946 So.2d 654, 662. Any rational trier of fact, viewing the evidence presented in the light most favorable to the state, could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all elements for second degree murder.

This assignment of error is without merit.

JURY MISCONDUCT

The defendant argues the district court erred in failing to replace a juror who became ill after viewing autopsy photographs, and in failing to address an "improper communication" between that juror and an investigator for the prosecution.

During the cross-examination of Dr. Snyder regarding photographs from the victim's autopsy, the state approached the bench and explained that one of the jurors appeared to be feeling faint. It was further explained that the state's investigator spoke with the juror and provided him water. After the trial court verified the juror was okay, the trial continued. The defendant neither objected nor moved for a mistrial relative to these events.

The defendant's failure to contemporaneously object to the interaction between the state and the juror precludes appellate review of any possible errors related thereto. See La. Code Crim. P. art. 841A; State v. Trahan , 93-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, 704 ("[t]he grounds for objection must be sufficiently brought to the court's attention to allow it the opportunity to make the proper ruling and prevent or cure any error"). Consequently, we do not address this assignment of error.

EXCESSIVE SENTENCE

In his last assignment of error, the defendant asserts that his life sentence at hard labor and without benefit of parole, probation, or suspension of sentence is excessive.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or constitutes nothing more than a purposeless and needless infliction of pain and suffering. State v. Shaikh , 16-0750 (La. 10/18/17), 236 So.3d 1206, ----. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166, 174.

Louisiana Revised Statute 14:30.1B mandates that a person convicted of second degree murder be sentenced to life in prison at hard labor and without benefit of parole, probation, or suspension of sentence. The legislature defines criminal conduct and provides the penalties to be imposed against persons engaged in such conduct, which penalties reflect the degree to which the criminal conduct affronts society. Weaver , 805 So.2d at 174 ; State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993) ; see also State v. Fobbs , 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam ). Courts must apply statutorily mandated sentences, which are presumed constitutional See State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676 ; Dorthey , 623 So.2d at 1278. The defendant may rebut the presumption of constitutionality by producing clear and convincing evidence that he is exceptional meaning because of unusual circumstances he is a victim of the legislature's failure to assign sentences meaningfully tailored to the culpability of the offender, gravity of the offense, and circumstances of the case. Johnson , 709 So.2d at 676 ; State v. Martin , 10-0101, 2010 WL 3527209, pp. 2-3 (La. App. 1 Cir. 9/10/10).

At the hearing on the motion to reconsider sentence, the defendant testified he had no prior arrest record, graduated high school, worked in a chemical plant, coached his son's little league football team, served as a father figure to his nephew, and attended church. He also testified he was offered a twenty-year sentence in exchange for a guilty plea, but claimed to have been unaware of any deadline for the offer. The district court found no justification to deviate from the mandatory life sentence, noting the killing was "senseless, callous, and merciless."

We agree that the mandatory life sentence was warranted. The defendant failed to clearly and convincingly show he is exceptional and a victim of the legislature's failure to assign a sentence meaningfully tailored to his culpability, to the gravity of his crime, and to the circumstances of the case. The sentence is not a purposeless and needless infliction of pain and suffering, nor does it shock one's sense of justice.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

Pettigrew, J. concurs.

      Prior to Dr. Snyder's testimony, the district court addressed the photographs with counsel, and defense counsel indicated he had no objection to them.