author: MOLAISON, J.,

text:
    William SANCHEZ and Audi Gomez v. Holli SIGUR, USAgencies Casualty Insurance Company, and Louisiana Insurance Guaranty Association
    NO. 18-C-680
    Court of Appeal of Louisiana, Fifth Circuit.
    January 16, 2019
    COUNSEL FOR DEFENDANT/RELATOR, LOUISIANA INSURANCE GUARANTY ASSOCIATION, Stephanie B. Laborde, Benjamin M. Chapman, Baton Rouge, J. Jacob Chapman
    COUNSEL FOR PLAINTIFF/RESPONDENT, WILLIAM SANCHEZ AND AUDI GOMEZ, Ryan A. Creel, Ivan A. Orihuela
    COUNSEL FOR DEFENDANT/RESPONDENT, HOLLI SIGUR, James F. Ryan
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
   MOLAISON, J.,

Relator, Louisiana Insurance Guaranty Association ("LIGA") seeks review of the trial court's denial of its motion for summary judgment on the issue of whether its predecessor in interest, Affirmative Casualty Insurance Company ("ACIC") had issued an automobile liability insurance policy for defendant, Holli Sigur, that was in effect at the time of the September 8, 2012 automobile accident, which forms the basis of the instant lawsuit.

FACTS

The application before us indicates that on June 9, 2012, Holli Sigur began the process of purchasing an automobile liability insurance policy through ACIC which was doing business as USAgencies Casualty Insurance Company, Inc. ("USAgencies"). On that date, Sigur tendered an amount of $177.14 via credit card, which was classified as "Premium and Fees" on the receipt generated by USAgencies. The "Declarations" sheet for the policy detailed that the total cost for the policy was $1066.00, which consisted of a $1026.00 "Premium" and a $40.00 "Policy Fee." The first page of the policy, in the "Agreement" section of the document, stated, "If you pay your premium we agree to insure you subject to all the terms of this Policy for the coverage up to the Limits of Liability as indicated on the declarations page of this Policy." Additionally, under the "Cancellation or Non-Renewal Provisions" section, it provided:

We may cancel this Policy within the first sixty (60) days from the effective date of the insurance policy by mailing notice of cancellation to you at the address shown on the declarations page:
1. At least ten (10) days notice, if cancellation is for non-payment of premium.
2. At least thirty (30) days notice, via mail, in all other cases.

According to LIGA, the September 26, 2014 affidavit of Jose Sergio Vidal and attachments thereto, establish that Sigur "selected to finance her premiums via LIFCO through a consumer insurance premium finance agreement which included six (6) equal monthly installments due on the 18th of every month with her first installment due beginning June 18, 2012." On June 11, 2012, after Sigur did not return the completed insurance application and finance agreement, USAgencies mailed a 30 Day Notice of Cancellation to Sigur's home address, pursuant to LSA-R.S. 22:1266. The notice advised Sigur that the policy was being cancelled due to her failure to complete and return the policy application documents, and that the cancellation would be effective in 30 days on July 11, 2012, at 12:01 a.m.

Next, when Sigur did not pay the first installment of her policy premium, USAgencies, pursuant to La. R.S. 22:1266, mailed a Notice of Cancellation (formally referred to as a "10 day notice") to her home address on June 18, 2012. The 10-day notice advised Sigur that the policy was being cancelled due to non-payment of the premium and that the cancellation would be effective in 10 days, on June 28, 2012, at 12:01 a.m. The 10 day notice further advised Sigur that she could avoid cancellation by payment of the outstanding balance prior to the cancellation date, and the notice also reminded Sigur that she had the option of financing the remaining balance of the premium through LIFCO.

It is not disputed that Sigur never returned a completed insurance application or a completed consumer insurance finance agreement to USAgencies. It is also not contested that Sigur never paid an additional amount to USAgencies beyond the initial credit card transaction of $177.14 on June 9, 2012.

The accident at issue occurred on September 8, 2012, nearly two months after the latest date of the cancellation of Sigur's policy.

PROCEDURAL HISTORY

The plaintiffs' petition, filed in September of 2013, named Sigur, USAgencies and LIGA as defendants in the instant action. On February 26, 2018, LIGA filed a Motion for Summary Judgment asserting that the USAgencies auto liability policy previously issued to Sigur had been cancelled prior to the September 8, 2012 accident. Attachments to LIGA's motion for summary judgment, identified in the writ application as "Exhibit H," included a true copy of the declaration page issued to Sigur, a payment receipt, a Louisiana Auto Insurance Identification Card with an effective date of June 9, 2012, an Application for Personal Automobile Insurance dated June 9, 2012, a Consumer Insurance Premium Finance Agreement, a 30-Day Cancellation Notice dated June 11, 2012, an affidavit styled "proof of mailing," a complete copy of the Louisiana Private Passenger Auto Policy, and a 10-day cancellation notice dated June 18, 2012.

Plaintiffs did not file an opposition responsive to LIGA's motion for summary judgment, instead relying on its opposition to USAgencies own motion for summary judgment, which was previously filed before LIGA's intervention. Plaintiffs also did not seek to contradict LIGA's statements of uncontested facts.

On October 10, 2018, the trial court denied LIGA's motion for summary judgment, separately issuing reasons for its judgment on that same date. In its reasons for judgment, the trial court found that there were three genuine issue of material fact:

First, the Court finds there are differences in the dates of the policy cancellation. There are two different cancellation notices that are present. Additionally, the cancellation notices are not clear pursuant to the statute and present a genuine issue of material fact.
The next issue that presents an issue of material fact for the Court is the "Premium Finance Agreement." A genuine issue of material fact for the Court is regarding the issue and terms of the finance agreement were [sic] regarding the payment of the policy. Another genuine issue of material fact for the Court is the fact of whether or not the initial payment of $177. 00 made by the defendant, Holli Sigur, constituted a payment towards the policy and was there a policy in effect.

LIGA timely filed its Notice of Intent to seek supervisory review of the trial court's ruling on October 25, 2018, which was granted by the trial court on October 26, 2018. The instant application followed.

LAW AND ANALYSIS

Appellate courts apply a de novo standard of review in considering lower court rulings on summary judgment motions. Arceneaux v. Amstar Corp. , 15-0588 (La. 9/7/16), 200 So.3d 277, 281. Thus, we use the same criteria that govern the district court's consideration of whether summary judgment is appropriate. 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 mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. Washington v. McCauley , 45,916 (La. App. 2 Cir. 2/16/11), 62 So.3d 173, 177, writ denied , 11-0578 (La. 4/29/11), 62 So.3d 115.

Louisiana jurisprudence provides that where an automobile liability insurer defends on the ground that the policy was cancelled prior to the date giving rise to a claim under the policy, the insurer bears the burden of establishing facts which will relieve it of liability.

Accardo v. Clarendon Nat'l Ins. Co. , 99-398 (La. App. 5 Cir. 1/4/00), 751 So.2d 975, 977, writ denied , 00-0369 (La. 4/7/00), 759 So.2d 761 ; Direct Gen. Ins. Co. v. Mongrue , 04-248 (La. App. 5 Cir 8/31/04), 882 So.2d 620, 623. The insurer must show facts which constitute positive and unambiguous proof of the insured's understanding of the cancellation of the policy. Id. La. R.S. 22:1266 sets forth the notice requirements that must be followed by an insurance company in order to effect a cancellation of an insurance policy. La. R.S. 22:1266 mandates strict compliance with its statutory provisions for a valid notice of cancellation of an insurance policy. Direct Gen. Ins. Co., 882 So.2d at 622. Notice is required to make the insured aware that his policy is being terminated and to afford him time to obtain other insurance protection. Id.

With respect to the trial court's finding that there is a question of whether a policy was ever in effect for Sigur, we note that this particular issue was not raised or argued by any party. To the contrary, LIGA's own statement of uncontested material facts admits:

On June 9, 2012, Affirmative Casualty Insurance Company issued a policy of automobile liability insurance to Holli Sigur, bearing policy number 6100361, with $15,000 per person / $30,000 per accident policy limits.

Additionally, the record contains a copy of the Louisiana Auto Insurance Identification Card with an effective date of June 9, 2012 issued for Sigur's policy.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co. , 93-0911 (La. 1/14/94), 630 So.2d 759, 763. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. Id. The parties' intent, as reflected by the words in the policy, determines the extent of coverage. Id. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. La. C.C. art. 2047. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. , 630 So.2d at 763.

In the instant case, the first page of the policy, in the "Agreement" section of the document stated, "If you pay your premium we agree to insure you subject to all the terms of this Policy for the coverage up to the Limits of Liability as indicated on the declarations page of this Policy." Additionally, under the "Cancellation or Non-Renewal Provisions" section, it stated:

We may cancel this Policy within the first sixty (60) days from the effective date of the insurance policy by mailing notice of cancellation to you at the address shown on the declarations page:
1. At least ten (10) days notice, if cancellation is for non-payment of premium.
2. At least thirty (30) days notice, via mail, in all other cases.

Thus, it is clear from a plain reading of the policy that any insurance provided is contingent upon payment of the premium, and that coverage can be cancelled upon non-payment of the premium.

The premium finance agreement set forth the terms, the schedule of payments, and the amounts due over a six-month period, beginning on "06/18/2012." Of note, the total for the premium was itemized at $1,026.00, while the amount that would be financed under the agreement was $913.86. The complete itemization of the amount financed shows that the $177.14 initially paid by Sigur on June 9, 2012 was allocated three ways:

(4) (Less) Insurance Co. Premium Down $(112.14) (5) (Less) Insurance Co. Fees Down $(40.00) (10) Origination Fee $ 25.00

While the trial court found an issue of fact with respect to the terms of the financing agreement, in our opinion such an issue is moot when Sigur never completed the application for the finance agreement. Nevertheless, the finance application, which was sent to Sigur for completion and which she did not deny receiving, put Sigur on notice that her first premium payment aside from her deposit was due on June 18, 2012. As discussed below, even assuming that Sigur did not receive or read the application for the finance agreement, USAgencies provided the required 10-day notice which advised Sigur that her policy was being cancelled due to non-payment of the premium.

La. R.S. 22:1266 provides, in pertinent part, as follows:

(B)(1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment of premium.
...
(d) Nonreceipt by the insurer of an application for insurance in which a valid binder has been issued.
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given. In the event of nonpayment of premiums for a binder, a ten-day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.

In reviewing USAgencies' 10-day notice in the writ application before us, we find that the notice itself conformed to the requirements of La. R.S. 22:1266. In addition, the record contains evidence, in the form of an affidavit, that the cancellation was mailed to Sigur at her home address listed in the policy. Therefore, we find sufficient proof of notice. Also, as stated previously, there is no dispute that Sigur did not make additional premium payments after receiving the 10-day notice.

The trial court also found that two effective cancellation dates set by the 10-and 30-day notices created a genuine issue of material fact. We disagree. In our reading of La. R.S. 22:1266, we see no limitation on an insurer to a single cause for cancellation of a policy. We need not reach this issue, however.

As indicated above, La. R.S. 22:1266(B)(1)(d) provides that if the reason for cancellation is something other than non-payment of the premium, then notice of cancellation needs to be 30 days in advance and by "certified mail or delivered by the insurer to the named insured." Here, where the reason for the cancellation was Sigur's failure to turn in the completed application for insurance, the "certified mail" or "delivery" requirement applies. The writ application does not contain any evidence that this requirement was met and, accordingly, we find that the 30-day notice was without effect. Because we have already found a valid 10-day notice of cancellation, however, a legal basis for cancelling the policy still exists.

We find that Sigur's policy with USAgencies expired for nonpayment on June 28, 2012, at 12:01 a.m. The automobile accident, which forms the basis of the instant suit, occurred on September 8, 2012, over two months after Sigur's policy had been canceled. Because liability coverage for Sigur's vehicle through ACIC/LIGA was non-existent, LIGA's motion for summary judgment should have been granted. Accordingly, LIGA's writ application is granted, and the trial court's October 10, 2018, order denying the motion for summary judgment is reversed.

WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT GRANTED AND CASE DISMISSED WITH PREJUDICE ONLY AS TO RELATOR/DEFENDANT, LOUISIANA INSURANCE GUARANTY ASSOCIATION

      The policy was originally issued by Affirmative Casualty Insurance Company (formerly known as USAgencies Casualty Insurance Company, Inc.) However, after that insurer became insolvent on April 11, 2016, LIGA acquired all of the rights, duties, and obligations of Affirmative Casualty Insurance Company pursuant to the provisions of La. R.S. 22:2051, et seq .

      Vidal is identified in the relevant affidavits as "an authorized Claims Liaison for Affirmative Insurance Services."

      This attachment was originally provided in connection with the February 20, 2018 affidavit of Wanda Poche, a Claims Examiner for LIGA.

      As noted above, LIGA was also named as a defendant in plaintiffs' original petition.

      We note that appellate Courts do not review reasons for judgment as a part of the judgment itself. La. C.C.P. art. 1918 ; Burmaster v. Plaquemines Parish Government , 07-1311 (La. 8/31/07), 963 So.2d 378, 379. The written reasons for judgment are merely an explication of the trial court's determinations. State in the Interest of Mason , 356 So.2d 530, 532 (La. App. 1 Cir. 1977). The Louisiana Supreme Court has held, however, that a court of appeal can use reasons for judgment to gain insight into the district court's judgment, and we refer to them now for that purpose. See, Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507.

      In Direct Gen. Ins. Co. v. Mongrue , supra , the Court cited to the former version of La. R.S. 22:1266, which was La. R.S. 22:636.1.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Kevin JOHNSON
    NO. 18-KA-294
    Court of Appeal of Louisiana, Fifth Circuit.
    January 16, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Gail D. Schlosser, Harahan, Matthew R. Clauss
    COUNSEL FOR DEFENDANT/APPELLANT, KEVIN JOHNSON, Kevin V. Boshea, Baton Rouge
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
   WINDHORST, J.

Defendant, Kevin Johnson, appeals contesting the voluntariness of his guilty pleas and the denial of his motion to withdraw his guilty pleas. For the reasons that follow, we affirm defendant's convictions and sentences.

Facts and Procedural History

On June 4, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin Johnson, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one) and aggravated criminal damage to property in violation of La. R.S. 14:55 (count two). On June 17, 2013, defendant pled not guilty at his arraignment.

On July 16, 2014, defendant withdrew his not guilty pleas and pled guilty as charged. Defendant was sentenced to thirteen years, four months imprisonment at hard labor to be served without benefit of probation, parole, or suspension of sentence and a $1,000 fine on count one and ten years imprisonment at hard labor on count two. The court further ordered defendant's sentences to run concurrently with each other and concurrently with the sentences imposed in case numbers, 13-4664, 13-5020, 14-507, and 14-1131. The trial court also recommended defendant for any self-help programs available to him through the Department of Corrections.

On August 15, 2014, defendant, through his newly retained counsel, filed a motion to withdraw and set aside guilty plea, alleging that his former trial attorneys failed to interview and investigate potential witnesses or defenses available to him that would have proven his innocence to the charges. In support of his motion, defendant attached an affidavit from Selena Collins, an alleged eyewitness to the crimes, in which she recanted her statement identifying defendant as the perpetrator, claiming that she was "in shock" and "pressured" to name defendant. On September 10, 2014, the trial court denied defendant's motion to withdraw his guilty plea on September 10, 2014. On October 9, 2014, defendant filed a motion for reconsideration and request for a contradictory hearing. Defendant's motion was set for hearing and continued without date at the request of his counsel.

On July 13, 2016, defendant filed an application for post-conviction relief (APCR), claiming ineffective assistance of counsel. Defendant filed a supplemental memorandum to his APCR on October 21, 2016, asserting the alleged ineffectiveness of his trial counsels' performance, which he claimed caused him prejudice by "failing to investigate the facts, interview essential witnesses, available defenses that could have placed the State's theory through an adversarial-test which ultimately would have disproven the State's theory" and by the lack of inspection of evidence. Defendant was subsequently granted this out-of-time appeal under State v. Counterman.

Because defendant pled guilty, the underlying facts were not fully developed at a trial. A factual basis was not provided at the guilty plea proceeding, therefore, the facts have been gleaned from the bill of information which provided that: on or about May 3, 2013, defendant violated La. R.S. 14:95.1, having possessed a firearm in Jefferson Parish after being previously convicted of the crime of aggravated second degree battery, in violation of La. R.S. 14:34.7, under case number 08-4682, Division "M," of the Jefferson Parish 24th Judicial District Court and that on May 3, 2013, defendant violated La. R.S. 14:55, having committed aggravated criminal damage to a 2003 Chevy Tahoe belonging to Curtis Grimes and driven by Montero Ursin.

Discussion

On appeal, defendant asserted three assignments of error: (1) the trial court erred in denying the motion to withdraw guilty pleas; (2) the guilty pleas were not knowingly and voluntary entered into by defendant; and (3) the guilty pleas are legally infirm. In these three related assignments of error, defendant argues his trial counsels' performance was deficient in that they failed to properly investigate this matter. Defendant contends that if they properly investigated, he would have rejected the State's plea offer and proceeded to trial. Defendant claims that his guilty pleas should be invalidated because they were entered without full and correct information, and thus involuntary due to his trial counsels' alleged ineffectiveness. Defendant argues that he has maintained his innocence and that his motion to withdraw guilty plea should have been granted.

A defendant does not have an absolute right to withdraw a guilty plea. State v. Honeycutt, 41,601 (La. App. 2 Cir. 2/28/07), 953 So.2d 914, 918. The trial court has the discretion to permit a defendant to withdraw his guilty plea at any time prior to sentencing. La. C.Cr.P. art. 559 A; See State v. Kron, 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117, 119, writ denied, 08-0813 (La. 10/24/08), 992 So.2d 1039. However, this discretion cannot be exercised arbitrarily, and an abuse of discretion can be corrected on appeal. State v. Gonzales, 97-767 (La. App. 5 Cir. 1/14/98), 707 So.2d 82, 84. Once a defendant is sentenced, only those pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. Joseph, 14-762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily; if the Boykin colloquy is inadequate; or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

As a general rule, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows that the defendant was informed of his rights and the consequences of his plea and that the plea was entered voluntarily. Kron, 983 So.2d at 120. Dissatisfaction with a sentence or a mere change of heart or mind by the defendant as to whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. State v. Green, 03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237, 242, writ denied, 03-3228 (La. 3/26/04), 871 So.2d 346. Moreover, where a defendant's misunderstanding of the plea bargain is not induced by or attributed to representations made by the district attorney or the trial court, there are no grounds for withdrawal of the plea. In the absence of fraud, intimidation, or incompetency of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel. Joseph, 169 So.3d at 664.

Based on the foregoing, we find the trial court did not error in denying defendant's motion to withdraw his guilty pleas. The record supports the trial court's determination that defendant voluntarily entered the guilty pleas with a full understanding of the consequences associated with those pleas. On the waiver of rights form and during the colloquy, defendant was advised of his Boykin rights, stated that he understood his rights, and that he was waiving those rights. Defendant was also advised of the sentencing ranges for the offenses and the sentences that would be imposed should the court accept his guilty pleas. Defendant further indicated that he was satisfied with the way his trial attorneys had handled his case and had not been forced, threatened, or coerced into entering his pleas of guilty. The court accepted defendant's pleas of guilty as knowingly, intelligently, freely, and voluntarily entered into by defendant. Defendant was sentenced in accordance with the plea agreement. Accordingly, the plea colloquy, along with the signed waiver of rights form, constitute a sufficient affirmative showing on the record that defendant was advised of his rights, understood those rights, and that he made an intelligent and knowing waiver of his rights.

Moreover, defendant entered an unconditional guilty plea which, by its nature, admits factual guilt and waives all non-jurisdictional defects in the proceedings prior to the entering of the plea. State v. Starks, 01-1078 (La. 3/28/02), 812 So.2d 638, 638-39 (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ); State v. Crosby, 338 So.2d 584, 586 (La. 1976) (citing State v. Foster, 263 La. 956, 269 So.2d 827 (1972) ); State v. Smith, 09-168 (La. App. 5 Cir. 6/23/09), 19 So.3d 509, 510-11 (citing State v. Joseph, 03-315 (La. 5/16/03), 847 So.2d 1196 (per curiam ); State v. King, 99-1348 (La. App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied, 00-1824 (La. 6/29/01), 794 So.2d 822 ) ).

In this case, defendant does not contend the trial court failed to advise him of his constitutional rights, instead he argues that his pleas were not knowing or voluntary based on ineffective assistance of counsel. Defendant contends his trial counsels' failed to properly investigate and interview essential witnesses, arguing that after his sentencing, alleged eyewitness Selena Collins recanted her statement to the police implicating him and was prepared to testify accordingly at trial. He argues that at all relevant times he advised his attorneys that he was innocent and insisted on going to trial. However, due to ineffective assistance of counsel, he contends that he was forced to plead guilty. These claims are inconsistent with his response in the Boykin colloquy to the effect that he was satisfied with the way his trial counsel had handled his case, and that he had not been forced, threatened, or coerced into entering his pleas of guilty.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. State v. Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 58, writ denied, 14-431 (La. 09/26/14), 149 So.3d 261. Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the defendant proves: (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 9/23/16), 199 So.3d 1140, 1141.

When a defendant claims that counsels' ineffective assistance rendered a guilty plea invalid, the Strickland analysis under the first deficiency prong remains the same, whereas under the second prejudice prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-67. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. at 1067. If, on the other hand, the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

In this case, the record is insufficient to fully consider defendant's claim that ineffective assistance of counsel rendered his guilty pleas unknowing and involuntary. The only transcript contained in the record is that of the plea hearing. Thus, based on the limited record, we find defendant's allegations of ineffective assistance of counsel cannot be reviewed here, and should be raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if warranted under the post-conviction relief statutory procedure, and defendant can present evidence to support his allegations. See State v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154 ; Kron, supra.

Error Patent Discussion

The record was reviewed for errors patent, according to mandates of 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. 5 Cir. 1990). Our review reveals no errors patent in this case.

CONVICTIONS AND SENTENCES AFFIRMED

      The bill of information alleged that defendant was previously convicted of the crime of aggravated second degree battery, in violation of La. R.S. 14:34.7, under case number 08-4682, Division "M," of the 24th Judicial District Court, Parish of Jefferson.

      Defendant also pled guilty in four other cases that day which are not before this Court on appeal.

      State v. Counterman, 475 So.2d 336 (La. 1985).

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

      At a minimum, under Boykin, the defendant must be notified of the waiver of three constitutional rights-the right to trial by jury, the defendant's privilege against self-incrimination, and the defendant's right to confront his accuser. State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So.2d 76, 85, writ denied, 03-1361 (La. 11/26/03), 860 So.2d 1131.

      The record shows that prior to the guilty plea proceeding, defense counsel specifically indicated that defendant's pleas were not being offered under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      The record contains a transcript from a motion to suppress that was conducted on January 9, 2014, in unrelated case numbers 13-4664 and 13-5020 (cases which defendant also pled guilty to at the time of the guilty pleas in this case).

      However, defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq. , in order to receive such a hearing.


author: STEPHENS, J.

text:
    Yasheka JACK, Plaintiff-Appellee v. ELDORADO CASINO SHREVEPORT JOINT VENTURE, L.L.C., Eldorado Shreveport #1, L.L.C. and Eldorado Shreveport #2, L.L.C., Defendants-Appellants
    No. 52,454-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    BLANCHARD, WALKER, O'QUIN & ROBERTS, APLC, By: Jerry Edwards, Brian C. Flanagan, Shreveport, Counsel for Appellants
    ERNEST R. PERRY, JR., FRISCHHERTZ, POULLIARD, FRISCHHERTZ & IMPASTATO, LLC, By: Anthony Joseph Impastato, Vincent P. Impastato, Sr., Dominick Frank Impastato, III, New Orleans, Counsel for Appellee
    Before PITMAN, COX, and STEPHENS, JJ.
   STEPHENS, J.

Defendants, Eldorado Casino Shreveport Joint Venture, L.L.C., Eldorado Shreveport # 1, L.L.C., and Eldorado Shreveport # 2, L.L.C. (collectively "Eldorado"), appeal the denial of a motion in limine and judgment in the First Judicial District Court, Parish of Caddo, State of Louisiana, awarding damages to plaintiff, Yasheka Jack ("Jack"). For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This matter arises out of injuries sustained by Jack at the Eldorado Casino in Shreveport, Louisiana, and the subsequent suit for damages filed against Eldorado. Jack's injury occurred on November 9, 2013, when a beverage server employed by Eldorado, Denise Ramone, spilled hot coffee on Jack, which caused Jack to twist suddenly out of the chair on which she was seated and injure her back in the process. Jack filed a petition for damages against Eldorado on October 3, 2014. Eldorado answered and asserted several affirmative defenses, notably which Jack's injuries were proximately caused by a person or entity other than Eldorado.

Prior to trial, Eldorado filed a motion in limine seeking to exclude from evidence the portions of Jack's medical expenses that were written off, claiming Jack never actually incurred or had an obligation to pay the full amount of the expenses, and thus, the collateral source rule does not apply. The trial court denied Eldorado's motion, holding the collateral source rule does apply to write-offs negotiated by Jack's private insurance provider, to whom she had paid monthly premiums. Accordingly, Jack's medical records that were admitted into evidence during the trial were redacted to exclude the amount of the insurance payments and write-offs and, thus, reflected the full amount of medical expenses charged to Jack. Following the ruling on its motion, Eldorado failed to proffer into evidence any proof or information regarding the specific amounts of the write-offs.

Trial commenced on September 11, 2017, wherein 11 witnesses testified. Following the conclusion of testimony, Jack moved for a directed verdict on comparative fault regarding Eldorado's affirmative defense of negligence on the part of an unknown patron. The motion was denied.

On September 14, 2017, a unanimous 12-person jury found Ramone was negligent, her negligence was a proximate cause of Jack's injuries, and the unknown patron was not negligent. The jury assessed 100% of the fault to Ramone and made the following award to Jack:

Past medical expenses $237,124.79 Future medical expenses 577,698.00 Past lost wages 51,646.00 Future lost wages 317,460.00 Past physical pain and suffering 40,000.00 Future physical pain and suffering 60,000.00 Past mental pain and suffering 75,000.00 Future mental pain and suffering 50,000.00 Past loss of enjoyment of life 10,000.00 Future loss of enjoyment of life 10,000.00 Disability 0.00 Scarring 1,000.00

The trial court rendered judgment in the total amount of $1,429,928.70.

Eldorado subsequently filed a motion for judgment notwithstanding the verdict, which was denied. In ruling on the motion, the trial court noted that with regard to the issues of both fault and future lost wages, the jury had simply made a credibility call which it would not disturb on the basis of its own opinion of the evidence. Furthermore, in denying the portion of Eldorado's motion that requested a reduction to the jury's award for past medical expenses in an amount equal to the write-offs, the trial court noted there was no evidence in the record regarding the specific amounts of the write-offs; therefore, even if it were inclined to reduce the award by those amounts, it would not "guestimate" what those written-off amounts would be.

Eldorado now appeals the judgment of the trial court and asserts three assignments of error pertaining to (1) the assessment of 100% fault to Ramone; (2) the award for future lost wages; and (3) the trial court's application of the collateral source rule to the insurer-negotiated write-offs.

DISCUSSION

Eldorado's first two assignments of error involve the jury's assessment of the credibility of witnesses. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings. Robinson v. Board of Supervisors for Univ. of La. Sys. , 2016-2145 (La. 6/29/17), 225 So.3d 424 ; Fuller v. Bissell , 51,759 (La. App. 2 Cir. 1/10/18), 245 So.3d 1169. Under manifest error review, the trial court's factual findings can be reversed only if the appellate court finds, based on the entire record, no reasonable factual basis for the factual finding and the factfinder is clearly wrong. Baker v. PHC-Minden L.P. , 2014-2243 (La. 5/5/15), 167 So.3d 528 ; Fuller , supra . Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, then the court of appeal may find manifest error or plain wrongness even in a finding based on credibility. But where such factors are not present, and the factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La. 1989) ; Johnson v. Tucker , 51,723 (La. App. 2 Cir. 11/15/17), 243 So.3d 1237, writs denied , 2017-2075, 2017-2073 (La. 2/9/18), 236 So.3d 1262 and 1266.

Assessment of Fault

In its first assignment of error, Eldorado asserts the jury erred in assessing 100% of fault to Ramone, thereby refusing to accept as credible the uncontradicted testimony of Ramone regarding the cause of the accident. We disagree. A trial court's findings regarding percentages of fault are factual, and will not be disturbed on appeal unless clearly wrong. Purvis v. Grant Parish School Bd., 2013-1424 (La. 2/14/14), 144 So.3d 922, 926.

Overview of relevant testimony

Jack testified that on the night her injury occurred, she had met her two aunts, Mary Williams and Tolonia Bryant, at the Eldorado Casino. The three were sitting in chairs at the penny slot machines. Jack and Williams were sitting side by side with an empty chair between them, while Bryant was sitting across the aisle with her back to the machine, facing Jack and Williams. Jack stated there was suddenly a very hot sensation going down her back, saturating her pants and chair. She jumped out of the chair, turned and threw her body out to get her back off the chair. Jack identified the Eldorado waitress seated at the defense table, Ramone, as the waitress who spilled the hot coffee on her. Jack stated Ramone gave no explanation regarding what caused her to spill the drinks on Jack. Ramone just kept apologizing and asked if Jack wanted her to get her supervisor. Jack testified that no one who appeared to be a fellow Eldorado patron approached afterwards. On cross-examination, Jack testified that at the time her injury occurred, she did not see what caused Ramone to spill the tray of drinks because she was looking in the other direction and she does not know if someone bumped into her or not.

Ramone then testified on cross-examination that it is part of her responsibility as a cocktail waitress at the Eldorado Casino to organize drinks on her tray using a certain method in order to ensure the tray is well balanced and avoid spilling the drinks. This method requires that in the event there is hot coffee on the tray, it should be placed in the dead center with the heavier drinks immediately around it and the lighter drinks along the edges of the tray. Ramone further testified it was her responsibility and part of her training to be aware of rowdy patrons and prepared to avoid their sudden movements. She stated patrons were expected to be rowdy, and it was normal and reasonable for them to make sudden movements such as jumping out of their chair.

Regarding the moments leading up to Jack's injury, Ramone testified the coffee still had steam rolling off it, and while it started out in the center of her tray, as is protocol, she was not sure whether it was still in the center of the tray at the time of the accident because she had delivered several drinks and picked up several empty glasses since originally organizing her tray. She testified that when she entered the aisle, Jack was seated on the left side and there was another patron whose identity is unknown seated on the right side. Ramone testified the unknown patron stood from her chair causing the chair to slide backward and the back of the chair to bump into Ramone's right hip. This bump then caused her to lose her balance and the balance of the tray and stumble forward, to the left, toward Jack. This movement caused the drinks on her tray to topple over in a domino effect and the hot coffee to spill over the side of the tray onto Jack. Ramone explained that the unknown patron's action of pushing her chair back was neither unusual nor unreasonable, but there was no way for her to anticipate the bump and avoid it. She testified that following the accident, the unknown patron attempted to help her clean up the mess made by the spilled drinks.

Surveillance video of the incident was played for Ramone, and still shots from the video were provided. She testified that the video quality was not clear, but she was able to identify the position of the parties leading up to and after the accident. However, Ramone testified the video did not show the accident but showed both immediately before and after the accident; in other words, the casino's surveillance video does not contain the precise footage which should have captured the incident. On direct examination, Ramone testified she did not get the name or contact information of the unknown patron because she thought it was unnecessary.

Mary Williams testified that she was with Jack at the casino on the night her injury occurred; Williams' sister, Tolonia Bryant, was also with them. Williams identified the still shot of the Eldorado surveillance video from before the accident and confirmed where she and Jack were sitting but testified she could not recall exactly where Bryant was sitting and that the quality of the photo was not clear enough to identify each individual. Williams also testified she did not see anyone who was not an Eldorado employee come up to the scene following the accident and indicate being the cause of the accident. On cross-examination, Williams confirmed she did not see what caused Ramone to spill her tray of drinks.

Tolonia Bryant testified that she was at the Eldorado Casino with Williams and Jack on the night Jack was injured, and she was sitting behind them, across the aisle. She had her back to the slot machine and was sitting facing Williams and Jack. Bryant testified she saw Ramone stumble and spill the drinks on Jack. Bryant further testified she did not see anyone bump into Ramone or anyone come up after the accident and apologize or indicate they caused Ramone to trip and fall. She was reading a book while talking with Jack and Williams and had looked down a little before the accident, but when she looked up, she saw Ramone walking toward them with a tray of drinks. She never saw anyone bump into Ramone, whom she described as just suddenly tripping. On cross-examination, Bryant testified that while she did not see anyone bump into Ramone, she does not know if someone did.

Analysis

The record in this case demonstrates the jury was not manifestly erroneous or clearly wrong when it determined Eldorado was 100% at fault for the injuries sustained by Jack at the Eldorado Casino. Eldorado asserts Ramone's testimony was uncontradicted and does not support a finding of 100% fault against Eldorado, yet the surveillance video and testimony of other witnesses did contradict Ramone's assertions-both that she was bumped into by an unknown patron which caused her to lose her balance and led to the accident and that an unknown patron attempted to help clean up after Ramone's tray spilled onto Jack. Bryant and Williams both testified that while they saw Ramone stumble and spill the coffee on Jack, they saw no one bump into her. Furthermore, they both, as well as Jack, testified they saw no other patron take responsibility for causing Ramone to stumble or attempt to assist after the accident. Their testimony was not so implausible on its face that a reasonable factfinder would not credit it, nor was it contradicted by any objective evidence. In fact, the theoretically objective surveillance video provided by Eldorado that could have potentially supported Ramone's testimony, instead, further weighs against Eldorado's credibility due to its poor quality and suspicious omission of the accident altogether.

We note Eldorado assigned error to the jury's assessment of 100% fault to Eldorado but did not assign error to the jury's finding that the unknown patron was not negligent. Regardless, the jury clearly found Jack and her witnesses to be more credible and resolved conflicts of testimony in Jack's favor. Its finding that Eldorado was 100% at fault for the injuries sustained by Jack, and that the unknown patron was not, is reasonable in light of the record reviewed in its entirety. This assignment of error is without merit.

Award for Future Lost Wages

Eldorado asserts the jury erred in awarding future lost wages in light of overwhelming evidence that Jack could return to work with accommodations. We disagree. Awards for loss of earning capacity are inherently speculative and insusceptible of calculation with mathematical certainty. Shephard v. AIX Energy, Inc. , 51,965 (La. App. 2 Cir. 5/23/18), 249 So.3d 194, 211, writ denied , 2018-1266 (La. 11/5/18), 255 So.3d 1050. The trier of fact is accorded great discretion in assessing damages for loss of earning capacity, but there must be a factual basis in the record for the award. Id.

Overview of relevant testimony

Jack testified that at the time of her injury, she was the office manager at Velocity Care, a medical office where she had been employed for two years. She earned a yearly salary of approximately $33,000 and was a single mother of three. Jack's prior work history includes working in a hospital as a unit clerk, patient care technician, and certified nursing assistant, as well as a receptionist, medical coder, and customer service representative at a retail store. She has a high school diploma and at the time of her injury was enrolled in community college pursuing an associate degree in business administration. Ultimately, however, Jack failed those classes due to the pain she suffered from her injury at Eldorado.

Jack testified she worked 12-hour shifts at Velocity Care and had no difficulty performing work duties prior to her injury. Her duties included working side-by-side with the front desk staff and managing them; meeting and greeting patients; answering the phone and placing calls; sitting for long periods of time to send out emails to billing companies, supervisors, and owners; coordinating the staffing schedule; putting away supplies; moving charts; retrieving patients from cars and helping them into a wheelchair; taking vital signs; and making beds. She testified she did whatever needed to be done.

In November 2015, due to her continued pain and upon the recommendation of Dr. Euby Kerr, M.D., at the Spine Institute, Jack underwent a two-level, 360-degree lumbar fusion surgery. Jack had three discs removed from her spine, which were replaced with artificial discs that were screwed into her spine. Since the surgery, Jack continues to experience pain and pressure in her lower back. She explained her pain level increases as her activity level increases and stated she continues to receive injections in her sacroiliac joints. Jack further testified that as of the date of trial, she had not been released by her doctor to return to work but she would if she could because she enjoyed her job, was good at it, and needed the income.

Jack testified that she currently experiences difficulty getting comfortable, either sitting, standing, or lying down, and constantly has to shift. She testified her injury prevented her from performing her previous duties at Velocity Care due to the extended periods of sitting, standing, bending, lifting, and reaching that were required and the pain those activities caused her. In order to do her job at Velocity Care, Jack needed someone to help with those tasks, which assistance, she testified, she probably would not be able to get. Jack stated it made no sense for her to be there, basically, because Velocity Care would have to have someone shadow her when, instead, they could just pay that one person to do the job.

On cross-examination, Jack testified she last worked in October 2015, has not been released by Dr. Kerr to return to work, and had not seen Dr. Kerr since December 2016. She confirmed she never asked her employer for any help or accommodations to continue work and had not applied for any other jobs. She did testify, however, that she had applied for Social Security disability and had been denied.

The video deposition of Dr. Kerr was taken during litigation and played for the jury at trial. He was accepted as an expert in the field of orthopedic surgery with a specialty in treatment of spine damage. Dr. Kerr testified he has treated Jack and first saw her as a patient in July 2014. Dr. Kerr reviewed MRIs of Jack's spine, performed a physical examination and diagnostic testing, and subsequently diagnosed her with a disk bulge at L5-S1 and an annular tear at L4-5. Dr. Kerr explained his ultimate course of treatment was to perform a 2-level 360-degree lumbar fusion on Jack, which he accomplished on November 20, 2015. He discussed the nature and mechanism of the pain caused by Jack's spinal injuries. He testified the surgery was successful and without it, Jack's tear and bulge would not have healed on its own, but normally this type of procedure only provides about 70-75% relief. Following the procedure, Dr. Kerr recommended Jack undergo sacroiliac injections and also referred her to pain management. He testified Jack was still experiencing pain associated with her injury at the Eldorado Casino and she may need another surgery in the future to address it.

The video deposition of Dr. Larry Stokes, Ph.D., was taken during litigation and played for the jury at trial. He was accepted as an expert in both vocational rehabilitation counseling and life care planning. Dr. Stokes performed a vocational rehabilitation assessment and life care plan on Jack. He conducted a two-hour interview with her and approximately two hours of testing. He testified regarding Jack's education and job experience, as well as her reported pain and mobility and the fact she has to rely on her children for help completing activities of daily living, including personal care and household work. He reported he had reviewed Jack's medical records, the deposition of Dr. Kerr, and the report by the vocational rehabilitation counselor hired by Eldorado. Dr. Stokes testified he had spoken with Dr. Kerr on the phone regarding Jack's condition. Dr. Stokes performed an employability assessment to determine what kind of jobs Jack could perform before and after the accident and concluded the job she had at Velocity Care, where she earned $33,000 per year including benefits, was the highest form of employment she had held and she was earning at her capability/capacity while there. He further testified that no doctor has released her to work, and Dr. Kerr reported to him that Jack was in too much pain to work. Dr. Stokes testified he did not believe Jack was employable at the time of trial and more likely than not, she would not be able to return to work in her capacity as an office manager at Velocity Care. He explained Jack currently has no earning capacity because no one has said she can go back to any kind of work, so she was looking at a 100% loss in earning for the remainder of her work life expectancy.

When asked to look on the "bright side," Dr. Stokes testified that hopefully, the most Jack could probably do would be part-time, light office management work, at approximately 20 hours per week. He provided a list of jobs he felt Jack could possibly perform part-time in the future, which included an office clerk or receptionist, office manager, administrative assistant, telephone clerk, and/or ticket taker. He further testified her earning capacity at any of these type of jobs would be between $8,507 and $11,242, which would, at the most optimistic estimate, still give Jack a loss of earning capacity between $21,757 and $24,492 per year. Dr. Stokes explained that since Jack was still in treatment and trying to improve as well as get additional education, he did not know what Jack's ultimate outcome would be, particularly if she could get to a point to where she could work in the future. He further testified that upon reviewing the report of Dr. Carl Goodman, the independent medical examiner hired by Eldorado, he noted Dr. Goodman did not opine whether or not Jack could work. Dr. Stokes stated he had also reviewed the report of Steve Allison, the physical therapist hired by Eldorado to perform the functional capacity evaluation ("FCE") of Jack, and the report ultimately concluded Jack did not have the residual functional capacity to safely perform full or unrestricted light or sedentary work. He explained there are only five categories of work: sedentary, light, medium, heavy, and very heavy, and that sedentary is the easiest physically demanding work, mostly sitting, some standing and walking, with very little lifting. He explained Allison's report confirmed the beliefs he already had-Jack would have to have significant modifications to her work setting to be able to work regularly and maintain work. Dr. Stokes testified that Allison's report indicated he repeatedly had to stop the test he was administrating on Jack because she could not safely perform the task. Dr. Stokes stated that ultimately both Allison's and Dr. Goodman's reports supported his own position regarding Jack.

On cross-examination in his deposition, Dr. Stokes testified that he is not a medical doctor and did not perform a physical examination of Jack. He stated his opinion of Jack's physical restrictions was based on the information provided to him by Dr. Kerr and Jack and on the results of the FCE performed by Allison, but he did not have an independent opinion about how long Jack's physical limitations may last.

The video deposition of John W. Theriot was taken during litigation and played for the jury at trial. Theriot was accepted as an expert in forensic economics, forensic accounting, and economic loss valuation. He testified in his deposition that he had reviewed Jack's earning records from 2008 to 2016, Dr. Stokes' report, Jack's deposition, and the deposition of Dr. Kerr, and then compiled an economic loss report based on that information. The report calculated how much of her salary Jack lost and would lose in the future due to her injury. Theriot testified that to calculate Jack's future lost income, he used a generally accepted table that was published in the Journal of Forensic Economics, which calculated work life expectancy based on information provided. Theriot testified that in Jack's case, her work life expectancy was 19.24 years, which he thought was very reasonable because Jack was only 41 at the time of trial. He then multiplied 19.24 by the base wage of $39,766, which was the salary Dr. Stokes reported Jack would have been able to earn had she not been injured and could have completed her associate degree.

This method brought Theriot to the conclusion that if Jack was unable to return to work, considering discounts to account for investment earnings and inflation, her future lost earnings would be $692,802. Using the same method applied to the amount of $11,242 that Dr. Stokes had reported Jack could earn working 20 hours a week, Theriot also calculated that Jack would sustain a future loss of earnings totaling $496,945 if she were able to return to work part time. Likewise, Theriot testified that assuming Jack could return to work full time making $22,485 per year, her future lost earnings would be $301,069. Using the base wage of $33,000 instead of the base wage Jack could have earned had she completed her associate degree, Theriot concluded Jack's future lost wages would be: $574,925 if she did not return to work; $379,067 if she returned part time making $11,242; and, $183,192 if she returned full time earning $22,485. Theriot testified the work life table he used was the standard and most recent table, at five years old. Theriot took issue with Eldorado's economist, who instead, used the average of eight different tables, including the one Theriot used, but who also included a table that was 20 years old and four others that ranged from 11 to 16 years old. Theriot testified on cross-examination in his deposition that when making his calculations for future lost wages, he deferred to the vocational experts with regard to whether or not Jack could return to work.

The defense's witnesses then testified. Dr. Carl Goodman was accepted as an expert in orthopedic medicine and testified he was hired by Eldorado to perform an independent medical examination of Jack. He testified the methodology of his independent medical examinations consists of taking a history from the patient, conducting a physical examination, and reviewing medical records. He testified that it was his opinion Jack could have suffered a small annular tear in her back as a result of the subject incident. He explained that while he believed Jack was obviously having pain, other than medication for the pain, he did not believe she needed any more treatment, including but not limited to a future surgery or steroid injections.

On cross-examination, Dr. Goodman testified that due to the back injuries Jack sustained at the Eldorado Casino, Jack would have difficulty doing her job working as an office manager at Velocity Care, sitting or standing for eight hours at a time, and turning quickly. As a result, she would likely miss time from work in the future. He agreed that to a reasonable medical probability, Jack sustained a permanent injury as a result of the accident at the Eldorado Casino.

Dr. Steve Allison was accepted as an expert in functional capacity evaluations and testified that his FCE of Jack included an interview regarding how the injury occurred, symptoms, and treatment; a review of multiple documents including medical records from Dr. Kerr and Dr. Goodman, MRI, X-ray, and CT reports, a deposition report from Velocity Care, and an economic loss report; a physical examination which consisted of tests measuring range of motion, reflexes, muscle atrophy, and sensation; and, a functional test which assessed safe tolerances to do things such as lift, push, and pull objects of various weights. Dr. Allison testified he found Jack had a moderate limp, all four motions tested with the lumbar spine were limited and painful, and she had diminished sensation in her left leg.

Dr. Allison further testified Jack did have some limitations evident in the functional test, but he thought she could return to work full time performing sedentary to light work with restrictions. He testified Jack could tolerate sitting a maximum of 5.25 hours a day but not for more than one hour at a time without getting up and walking around. Dr. Allison testified that with accommodations, Jack could perform the job of office manager, but the physical demands of a specific occupation often vary from job to job. He testified that as Jack described her duties at Velocity Care, she was performing medium work rather than sedentary or light, which he attributed, in part, to her account that she was required to move boxes of paper. He testified that to return to her former job at Velocity Care, Jack would need accommodations for sitting, standing, walking, carrying and lifting boxes of paper, pushing and pulling a 4-wheel cart with boxes of files, and for physical activities such as stooping, squatting, and kneeling. He further testified that Jack's description of her duties at Velocity Care was consistent neither with his own experience of the duties of an office manager nor with how the dictionary of occupational titles classifies that occupation. Dr. Allison also testified Dr. Kerr typically accepted his recommendation as to whether one of his patients was able to return to work.

On cross-examination, Dr. Allison testified that based on the physical demands of office manager contained in the dictionary of occupational titles, Jack did not have the functional ability to perform 33% of the general job of office manager. However, he testified that based on the information provided by Jack regarding her duties as office manager at Velocity Care, specifically, she did not have the functional ability to perform 60% of her former duties at Velocity Care. He testified that more likely than not, Jack had reached maximum functional improvement with her injuries and the work restrictions being placed on her should be considered permanent.

Kristan Gilliam testified that she was the Director of Oversight and Management for Velocity Care. She testified she worked with Jack and at that time, she was the practice administrator and Jack's direct supervisor. She described Jack's general duties to be helping to train the receptionists, be there for the receptionists if they need anything, and taking care of any patient-related issues which could involve billing with their insurance or medical records. On cross-examination, Gilliam testified Jack was a reliable, prompt, well-respected employee who had good relationships with other employees and had never been reprimanded or received an unsatisfactory evaluation.

Kenneth Brister was accepted as an expert in vocational rehabilitation and testified that he was hired by Eldorado to perform an assessment of Jack. He stated his assessment included a review of Jack's medical records, her Social Security Administration records, and multiple deposition transcripts, including that of Jack. He also interviewed Jack and obtained information regarding her educational background, work history, hobbies, special interests, details of the injury and medical treatment since, and problems she was continuing to have from a physical standpoint. After gathering pertinent information and reviewing pertinent documents, Brister then completed a transferable skills analysis to determine what types of jobs Jack would be able to do in the future based on the information obtained. Next, he conducted some limited vocational research to determine, based on the transferable skills analysis, what types of wages would be available to Jack in her geographical location.

Brister testified that based on his review of Dr. Allison's report and the medical information he understood to come from Dr. Kerr, it was his opinion Jack should be able to return to work in job positions designated as sedentary to light duty, with some limitations in both of those areas. He testified she could find a position that accommodated her limitations or engage in self-accommodating activities such as asking a coworker for assistance, or standing for a few minutes after sitting for a while. Brister testified the job of office manager typically would provide the flexibility to assign certain activities to other coworkers or do self-accommodating activities. He also stated employers have become more willing to provide accommodations to their employees. He testified that other than office manager, Jack could also perform the job of receptionist, unit clerk, and medical coder, which are all jobs Jack held prior to working as an office manager at Velocity Care. Additionally, he testified Jack could work as a medical secretary, general secretary, appointment clerk, information clerk, hospital admitting clerk, billing clerk, insurance clerk, loan clerk, and in dispatcher type positions.

On cross-examination, Brister testified he did not do a life care plan for Jack and had no opinion as to her future medical needs. He stated that while he had reviewed Dr. Goodman's deposition, he was not present for his live testimony at trial and did not know specifically how Dr. Goodman testified. Brister stated he had reviewed Dr. Goodman's report, but he did not rely on it or include it in his own report because Dr. Goodman's report did not contain an opinion regarding whether Jack could return to work. Furthermore, Brister testified Dr. Kerr's indication that Jack may need another surgery in the future was also not included in his report. He stated he was not sure if he had that information at the time of rendering his report, but if he did, it should have been included and its absence was an oversight. He testified his findings were also based on Dr. Allison's FCE and agreed that based on his findings, Jack had not been released to safely perform unrestricted sedentary work, which is the lowest physically demanding type of work.

He confirmed he had noted in his report that Jack had explained to him that even with self-accommodations at Velocity Care, her pain level was such that she could not perform her job. Brister testified his opinion was Jack had not suffered a loss of earning capacity. However, he further testified his opinion would likely change if both Jack's treating physician and the independent medical examiner indicated she could not return to work, in which case, she would have a loss of earning capacity. He also testified that if Jack could not get her degree because of this accident, she would have a loss of future earning capacity.

Tim Shaughnessy was accepted as an expert economist and testified that he was hired by Eldorado to evaluate Jack's claim for damages. He explained his method for determining Jack's future lost wages required taking the difference between Jack's anticipated earning during her work life expectancy in the earning path she was in prior to her injury and the earning path that she was in after her injury. He then translated that difference into a present value that if put into a bank account where it would earn interest, would equal that difference over the span of Jack's work life. He testified that based on Brister's report and testimony, Jack has no loss of earning capacity; therefore, it was his opinion that she, accordingly, had no loss of future earnings.

Analysis

A review of the record in its entirety shows the jury's award for future lost wages was not manifestly erroneous or clearly wrong. Eldorado asserts the jury's award was in error due to the "overwhelming evidence" that Jack could return to work. The jury was in fact presented with an overwhelming amount of evidence at this trial from very educated, qualified, and experienced experts on both sides. While only that testimony relevant to the assignments of error has been summarized herein, we have reviewed the record in its entirety. The record clearly shows that Jack is still in treatment and striving to resolve her pain. There is simply no way for anyone to know what type of work she will be able to perform in the future. However, there is clearly a reasonable factual basis in the record to support the jury's award of future lost wages.

First, we note there was uncontroverted testimony that Jack is still experiencing pain, making it difficult, or impossible, for her to resume her former employment duties. There was no testimony showing Jack could return to unrestricted, full-time work without the necessity of accommodations in the form of self-accommodating activities, accommodations made by her employer, or assistance from coworkers. Instead, there was testimony from both sides that Jack can neither safely perform all her previous duties as office manager at Velocity Care, nor can she safely perform even the least physically demanding type of work-sedentary work-without restrictions and accommodations. Likewise, testimony from both sides showed that more likely than not, Jack's injury is permanent.

After hearing the ample expert testimony and relying on their testimony, the jury had a choice between two permissible views of the evidence: (1) Jack can go on to earn the same income she would have earned had she not been injured at the Eldorado Casino; or (2) she cannot. The jury was permitted to credit the testimony of Jack's experts over those of Eldorado and was absolutely reasonable in determining Jack will suffer lost wages in the future due to the effect her injuries sustained at the Eldorado Casino will, more likely than not, continue to have on her ability to work. We further note that the jury's award was less than half of the amount of Dr. Stokes' highest estimation of Jack's future lost earnings. Loss of earning capacity/future lost wages is an inherently speculative determination, thus the jury is given particularly great discretion in assessing those damages. In light of the record reviewed in its entirety, the jury's award of future lost wages to Jack was not manifestly erroneous or clearly wrong. This assignment of error is without merit.

Application of Collateral Source Rule to Insurer-Negotiated Write-Offs

In its third assignment of error, Eldorado asserts the trial court erred in its application of the collateral source rule as to the written-off portion of Jack's past medical expenses. When a trial court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. La. C.C.P. art. 1636(A). It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives the right to complain of the exclusion on appeal. Murphy v. Savannah, 51,906 (La. App. 2 Cir. 4/11/18), 246 So.3d 785.

Following the trial court's denial of its motion in limine, Eldorado made no proffer of Jack's unredacted medical bills or any other evidence of the amounts of the write-offs. Therefore, Eldorado waived its right to complain of this exclusion on appeal, and the issue of the trial court's application of the collateral source rule to the insurer-negotiated write-offs is not properly before this court. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of the plaintiff, Yasheka Jack. All costs of appeal are assessed to the defendants, Eldorado Casino Shreveport Joint Venture, L.L.C., Eldorado Shreveport # 1, L.L.C., and Eldorado Shreveport # 2, L.L.C.

AFFIRMED.

      The total amount of damages provided in the trial court's judgment does not mathematically align with the individual awards on the jury's verdict form. The correct total sum of all the damages awarded to Jack is $1,429,928.79.


author: MOORE, J.

text:
    Carolyn RUSHING, Plaintiff-Appellant v. Terrence SIMPSON, Makvia Johnson, Exco Resources, Inc., Defendant-Appellees
    No. 52,443-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 16, 2019
    JOEY W. HENDRIX, Shreveport, EDWARD M. CAMPBELL, Counsel for Appellant.
    MAKIVA N. JOHNSON, In Proper Person.
    JOSHUA S. CHEVALLIER, Shreveport, Counsel for Appellee Exco Resources.
    Before MOORE, PITMAN, and McCALLUM, JJ.
   MOORE, J.

Carolyn Rushing appeals a judgment that denied her motion for new trial, sustained an earlier judgment granting Makiva Johnson's peremptory exception of no right of action and prescription, and dismissed all claims against Ms. Johnson. For the reasons expressed, we amend and affirm.

PROCEDURAL HISTORY

The exception was tried on the pleadings, with no evidence offered.

Ms. Rushing filed this petition in DeSoto Parish on September 15, 2017, against Terrance Simpson, Makiva Johnson and EXCO Operating LP. She alleged that EXCO maintained a mineral lease on a tract of land in DeSoto Parish owned by Thomas Simpson. However, Thomas Simpson "deeded" this tract to Ms. Rushing by quitclaim deed dated December 7, 2010. Thomas Simpson died in January 2011, and the quitclaim was not recorded until April 7, 2011. According to Ms. Rushing's petition, the district court rendered a judgment of possession on March 30, 2011, and, after further litigation challenging the will, reinstated the judgment of possession on August 18, 2014; at a later hearing, the validity of the quitclaim deed was "discussed." However, the judgment of possession included the tract of land subject to the EXCO lease as part of the decedent's estate, despite the quitclaim deed that had transferred it to Ms. Rushing.

Ms. Rushing alleged that she would have objected to the proposed judgment, but she did not because it was "not approved by Ms. Rushing counsel [sic ] as to form and content, nor was a copy of the judgment served upon Ms. Rushing's counsel, nor was any notice received by counsel of the issuance of judgment." When she found out about it, she filed a motion to amend judgment, on September 9, 2015. Even earlier, in February 2013, she had written to EXCO demanding that it not disburse mineral royalties pending further notice.

Ms. Rushing further alleged that the court granted her motion to amend judgment in March 2016. Then, Ms. Johnson filed an appeal, which was dismissed in September 2016, as well a "motion for new hearing," which was dismissed for nonpayment of costs.

The tenor of Ms. Rushing's claim was that as counsel for Terrance Simpson, Ms. Johnson failed to provide a proposed judgment to Ms. Rushing's counsel for approval, resulting in the inclusion of the tract subject to the EXCO lease as part of the estate; also, she provided this unapproved judgment to EXCO, resulting in the release of suspense royalties to Terrance Simpson instead of to Ms. Rushing. She demanded that Ms. Johnson produce "any policy of malpractice insurance" within 15 days, that EXCO provide an accounting and that Terrance Simpson return any royalties as payment of a thing not due.

Ms. Johnson filed a combined exception of no right of action, no cause of action and prescription. In her memorandum, she conceded that she was a Louisiana attorney and had represented Terrance Simpson in his father's succession since 2013. However, she had never represented Ms. Rushing, and without an attorney-client relationship there can be no legal malpractice claim, Red River Valley Bank v. Home Ins. Co. , 607 So.2d 892 (La. App. 2 Cir. 1992). For this reason, she argued, Ms. Rushing had no right of action to make a legal malpractice claim against her. She conceded that in some circumstances, an attorney may owe a duty to a third party, but Ms. Rushing had not alleged any such duty, so she also had no cause of action. Finally, she argued that by Ms. Rushing's own admission, she had knowledge of the alleged malpractice no later than September 9, 2015, when she filed a motion to amend the judgment of possession, but she did not file the instant suit until September 15, 2017, over two years later. For this reason, she argued, the claim was prescribed, as La. R.S. 9:5605 A requires suit within one year of the discovery of the act, omission or neglect.

Ms. Rushing filed an ex parte motion for additional discovery requests, and a motion to continue the hearing on the exception, but she filed no opposition to the exception.

ACTION OF THE TRIAL COURT

At the hearing, in November 2017, the district court alluded to "two extensive pretrial conferences." Ms. Johnson reiterated her memorandum, stressing that Ms. Rushing filed no opposition to the exception.

Counsel for Ms. Rushing responded that he "had some trouble with" his filings, but the gist of his opposition was stated in the papers he did file, the motions for discovery and continuance. The court held that because he filed no opposition, under District Court Rule 9.9, he could not argue. Counsel also offered no evidence, such as copies of the quitclaim deed, judgments of possession or motion to amend judgment.

The court orally granted the exceptions of no right and prescription; stated that these rulings mooted the exception of no cause; and ruled that the grounds of the exceptions could not be removed by amendment. At Ms. Rushing's request, the court issued written reasons.

Ms. Rushing filed a motion for new trial arguing that the court erred in refusing to allow her to amend her petition, La. C.C.P. art. 934. She also argued, for the first time, that Ms. Johnson violated District Court Rule 9.5 by failing to provide opposing counsel with a copy of the proposed judgment of possession (in August 2014), and that court rules are just as binding on attorneys as statutes. Finally, she argued that three of the categories of contra non valentem applied to her claim and suspended the running of prescription. Ms. Johnson filed a memorandum in opposition to new trial.

The district court denied the motion for new trial, sustained the prior judgment and dismissed all claims against Ms. Johnson. The court later designated this a final, appealable judgment.

Ms. Rushing appealed the denial of her motion for new trial.

DISCUSSION

As a preliminary matter, we note Ms. Rushing's brief to this court does not fully comply with URCA 2-12.4, in that it does not contain assignments of alleged errors, a listing of issues presented for review, or a table of authorities. URCA 2-12.4 A(5), (6), (2). However, the text of her brief (essentially a reprint of her trial court brief in support of new trial) advances four arguments. In the interest of judicial efficiency, we will treat these arguments as assignments of error.

We also observe that the denial of a motion for new trial is, strictly speaking, interlocutory and not appealable. La. C.C.P. arts. 1914 C, 2083 C. However, the courts routinely treat the appeal of such a ruling as addressing the merits of the underlying judgment. Smith v. Hartford Acc. & Indem. Co. , 254 La. 341, 223 So.2d 826 (1969) ; Gilley v. Gilley Enters. , 51,328 (La. App. 2 Cir. 5/2/17), 222 So.3d 885, fn. 4. We therefore have analyzed this appeal as challenging the grant of Ms. Johnson's peremptory exception.

Exception of Prescription

By her second argument, Ms. Rushing urges that prescription did not begin to run until "the anniversary of the judgment being filed which rendered a final judgment recognizing that the amended judgment of possession was final." She submits that she filed the instant suit one day before that anniversary, making it timely. She contends that until the judgment of possession was final, her action against Ms. Johnson would have been premature, and that she did not discover that EXCO was paying royalties until February 2017. Thus, she argues, the first three categories of contra non valentem applied: (1) a legal cause prevented the court from taking notice of the claim, namely, the fact that the appeal in the succession case was pending; (2) a condition connected with the proceedings prevented her from suing or acting, namely, the same fact as before; and (3) the intentional acts of the defendants concealed their acts and prevented Ms. Rushing from knowing her cause of action. Carter v. Haygood , 2004-0646 (La. 1/19/05), 892 So.2d 1261.

The time limit on claims against lawyers for their professional services is governed exclusively by La. R.S. 9:5605, which provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, * * * whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

Jenkins v. Starns , 2011-1170 (La. 1/24/12), 85 So.3d 612 ; Edwards on behalf of Edwards v. Parkerson , 51,357 (La. App. 2 Cir. 4/5/17), 218 So.3d 244, writ denied , 2017-0984 (La. 10/9/17), 227 So.3d 835. The time periods of R.S. 9:5605 A are peremptive, not merely prescriptive: they may not be renounced, interrupted or suspended. R.S. 9:5605 B; Jenkins v. Starns , supra ; Edwards v. Parkerson , supra . An attorney's post-malpractice acts of fraudulent concealment may constitute fraud and thus bar the application of the peremptive period. R.S. 9:5605 E; Lomont v. Bennett , 2014-2483 (La. 6/30/15), 172 So.3d 620.

An admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. La. C.C. art. 1853 ; C.T. Traina Inc. v. Sunshine Plaza Inc. , 2003-1003 (La. 12/3/03), 861 So.2d 156 ; Coleman v. Querbes Co. No. 1 , 51,159 (La. App. 2 Cir. 2/15/17), 218 So.3d 665.

Ms. Rushing alleged that Ms. Johnson committed malpractice by failing to provide a proposed judgment to Ms. Rushing's counsel for approval and then providing the unapproved judgment to EXCO. Reading the petition indulgently, we perceive that these events occurred sometime before February 2013, when Ms. Rushing asked EXCO to withhold royalties pending further notice, and no later than September 9, 2015, when she filed the motion to amend judgment. These allegations form a judicial confession that she knew of Ms. Johnson's conduct by September 9, 2015. La. C.C. art. 1853 ; C.T. Traina Inc. v. Sunshine Plaza Inc. , supra ; Coleman v. QuerbesCo. No. 1 , supra . She filed this suit on September 15, 2017, over two years later. Coming over one year after the alleged acts were discovered, the claim is obviously perempted. R.S. 9:5605 A. Because the peremptive period cannot be renounced, interrupted or suspended, the concept of contra non valentem does not apply to suspend it. Finally, Ms. Rushing alleged no acts of post-malpractice concealment, which might bar the application of the peremptive period. R.S. 9:5605 E. Any such allegation would be untenable, given that she successfully discovered Ms. Johnson's acts by September 9, 2015. The district court did not err in sustaining the exception of prescription. Ms. Rushing's second argument lacks merit.

Exception of No Right of Action; Rule Violation

By her first argument, Ms. Rushing urges that an attorney may be held personally liable for his intentional tortious conduct. Penalber v. Blount , 550 So.2d 577 (La. 1989) ; Blanchard v. Blanchard , 2012-0106 (La. App. 1 Cir. 12/31/12), 112 So.3d 243, writ denied , 2013-0488 (La. 4/12/13), 111 So.3d 1013. She argues that Ms. Johnson "intentionally submitted a judgment in violation of Rule 9.5," and that rules of court are binding on the court and the litigants. By her third argument, Ms. Rushing quotes District Court Rule 9.5: "the responsible attorney * * * shall circulate the proposed judgment * * * to counsel for all parties and to self-represented parties and allow at least five (5) working days for comment before presentation to the court." She contends that had Ms. Johnson complied with this, "the judgment would not have been filed as written," and that Ms. Johnson's noncompliance was an intentional act that harmed Ms. Rushing and conferred a right of action.

We will address these arguments only briefly; in light of the finding that the claim was perempted, it is immaterial to decide whether the plaintiff had a right to assert it. Wagoner v. Chevron USA Inc. , 45,507 (La. App. 2 Cir. 8/18/10), 55 So.3d 12, 178 Oil & Gas Rep. 978, writ denied , 2010-2773 (La. 3/2/12), 83 So.3d 1032 ; Davisson v. Davisson , 52,015 (La. App. 2 Cir. 5/23/18), 248 So.3d 633.

An attorney's paramount duty is, and must be, to his client. Scheffler v. Adams & Reese LLP , 2006-1774 (La. 2/22/07), 950 So.2d 641. An attorney does not owe a legal duty to her client's adversary when acting on her client's behalf. Id. ; Montalvo v. Sondes , 93-2813 (La. 5/23/94), 637 So.2d 127. However, an attorney may be held personally accountable for her intentional tortious conduct under the broad ambit of La. C.C. art. 2315 if her client's adversary can show that the attorney acted with a specific malice or intent to personally inflict direct harm upon the adversary and with full knowledge that her conduct would cause such harm. Montalvo v. Sondes , supra ; Penalber v. Blount , supra .

Ms. Rushing's petition alleged a failure to comply with Rule 9.5, but referred to Ms. Johnson as "negligent." In addition, because Ms. Rushing discovered the Rule 9.5 violation and promptly filed a motion to amend judgment - which was later granted - it is difficult to see how the violation inflicted "direct harm." The few reported cases involving Rule 9.5 violations have found them to be harmless error. State in Matter of Litton , 51,757 (La. App. 2 Cir. 11/15/17), 245 So.3d 1075, fn. 2 ; Matter of Succession of Buhler , 2017-0049 (La. App. 1 Cir. 2/22/18), 243 So.3d 39, writ not cons. , 2018-0478 (La. 5/11/18), 241 So.3d 1013. The substance of the allegations, together with the peremption of the claim under R.S. 9:5605, support the district court's finding that Ms. Rushing did not have a nonclient malpractice claim against Ms. Johnson.

We are constrained to find, however, that the district court erroneously sustained an exception of no right of action. Although the exceptions of no right of action and no cause of action are often confused or improperly combined in the same exception, they are separate and distinct. The exception of no right questions whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition, essentially, whether she has a legal interest in the subject matter. By contrast, the exception of no cause questions whether the law extends a remedy against the defendant to anyone on the factual allegations of the petition. Badeaux v. Southwest Computer Bureau Inc. , 2005-0612 (La. 3/17/06), 929 So.2d 1211 ; Penton v. Castellano , 48,433 (La. App. 2 Cir. 10/23/13), 127 So.3d 944, 300 Ed. Law Rep. 703, writs denied , 2013-2687, -2725 (La. 2/7/14), 131 So.3d 867, 869.

Ms. Johnson has not shown that, on the facts alleged, Ms. Rushing lacked the procedural capacity, standing or authorization to assert a nonclient malpractice claim against her. In short, the exception of no right of action was the wrong procedural vehicle. The courts have consistently held that a plaintiff who cannot meet the standard of proving a nonclient malpractice claim has no cause of action against the attorney. Penalber v. Blount , supra ; Succession of Carroll , 46,327 (La. App. 2 Cir. 7/20/11), 72 So.3d 384, writ not cons. , 2011-1844 (La. 11/4/11), 75 So.3d 912 ; Landry v. Base Camp Mgmt. LLC , 2015-1377 (La. App. 1 Cir. 10/31/16), 206 So.3d 921, writ denied , 2016-2105 (La. 1/13/17), 215 So.3d 248 ; Vance v. Federal National Mtg. Ass'n , 17-219 (La. App. 5 Cir. 12/20/17), 235 So.3d 1263, writ denied , 2018-0117 (La. 3/9/18), 237 So.3d 524. The district court erred in sustaining the exception of no right of action.

This court may notice, on its own motion, the failure to state a cause of action. La. C.C.P. art. 927 B; Langsford v. Flattman , 2003-0189 (La. 1/21/04), 864 So.2d 149 ; Lewla LLC v. Succession of Smith , 50,315 (La. App. 2 Cir. 1/27/16), 187 So.3d 10. For the reasons already discussed, this court sustains the exception of no cause of action as to Ms. Rushing's nonclient malpractice claim. The judgment will be amended accordingly.

By her fourth argument, Ms. Rushing urges that even if the ruling on the exception is affirmed, she should be allowed to amend her petition to remove the grounds of the exception, under La. C.C.P. art. 934. In light of Ms. Rushing's judicial confession that she knew about Ms. Johnson's conduct by September 9, 2015, but did not file suit until September 15, 2017, there is no way to remove the grounds of peremption under R.S. 9:5605. The fourth argument lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed insofar as it granted the exception of prescription, but amended to deny the exception of no right of action and to grant an exception of no cause of action. The request for leave to amend the petition is denied. All costs are to be paid by Carolyn Rushing.

AMENDED AND AFFIRMED.

      Ms. Rushing misspelled Ms. Johnson's name in the caption as "Makvia"; it is actually Makiva. Also, Ms. Rushing originally called the corporate defendant "EXCO Resources Inc.," but changed this by amended petition filed after the instant judgment was rendered.

      The petition does not, however, allege what the amended judgment stated.

      In support, she cites Sciortino v. Sciortino , 250 La. 727, 198 So.2d 905 (1967), but this case was expressly overruled in State v. Augillard , 371 So.2d 798 (La. 1979).

      By amended petition, Ms. Rushing alleged that "Defendants' actions were intentional," but because judgment had already been rendered dismissing Ms. Johnson, the court disallowed the amendment as to her.