author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Kevias C. HICKS
    NO. 18-KA-46
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA: Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, KEVIAS C. HICKS: Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHEHARDY, C.J.

On appeal, defendant challenges the trial court's denial of his motion to sever his trial from that of his co-defendants and the trial court's denial of his motion for mistrial. For the following reasons, we affirm.

Procedural History

On January 23, 2014, a Jefferson Parish Grand Jury indicted defendant, Kevias C. Hicks, with the second degree murder of Deshon Evans, in violation of La. R.S. 14:30.1 (count one) and the attempted second degree murder of Jonquell Neal, in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two). Further, in that same indictment, the grand jury indicted Kevias C. Hicks for the attempted second degree murder of a known juvenile (hereinafter "J.") and the attempted second degree murder of his mother, J.A., in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (counts three and four respectively).

On May 22, 2017, trial commenced before a twelve-person jury. After a six-day trial, the jury found defendant guilty as charged on all four counts. On June 26, 2017, the trial judge sentenced defendant for second degree murder to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and, for each count of attempted second degree murder, to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence, with the fifty-year sentences on counts three and four to run consecutively to the life sentence for count one. Thereafter, defendant filed a timely notice of appeal, which was granted.

Facts

In this case, Kevias C. Hicks, defendant-herein, and his brothers, Kevin Hicks and Kedrick Anderson, were indicted on two counts of attempted second degree murder for their involvement in a shooting incident that occurred on July 13, 2013, at 2800 Mount Kennedy. In that same indictment, defendant-herein, Kevin, and Tommie Molette were charged with second degree murder and attempted second degree murder for their involvement in a subsequent shooting incident that occurred on October 8, 2013, at 5923 Becker Street.

For clarity and completeness in addressing defendant's assignments of error, this opinion includes all of the germane testimony elicited at trial regarding five shooting incidents connected by ballistics and/or testimony to two groups of people. The first incident occurred on June 22, 2013, when A.P. was fired on while driving his girlfriend, J.A.'s, vehicle. Testimony reflected that A.P. was targeted because he had been deemed a "rat." Ballistics were not recovered from that event.

The second incident occurred on July 13, 2013, at approximately 9:45 p.m. at the Ridgefield Apartments on Mount Kennedy Drive in Marrero. During the Mount Kennedy incident, J., the two-year-old son of A.P. and J.A., was shot in the chest. J.A., the child's mother, testified that, "Kevias [Hicks'] face was the face in the front that I saw" shooting at her son and her that night. J.A. also saw Kedrick Anderson with a "big gun" that night. J.A. stated that she did not see Kevin Hicks that night. Ballistics matched spent 9-mm shell casings recovered from the Mount Kennedy scene to two later shootings: the Bridge shooting and the Becker Street shooting.

The third incident was a shooting that occurred on the Crescent City Connection on July 16, 2013. During that incident, defendant-herein was shot by someone riding in a nearby vehicle. Neither defendant-herein nor Kedrick Anderson, who was also in the car, would identify the assailant. However, J.A. testified that, at some point, A.P. told her that he and defendant-herein were shooting at each other on the "bridge." A spent 9-mm shell casing found inside the Hicks' vehicle matched the ballistics of casings found at the Mount Kennedy and Becker Street shootings.

In the fourth incident, which occurred on August 12, 2013, at the Beechgrove Apartments in Westwego, Aubrieon Davis, who is the mother of Kedrick Anderson's son, was fired upon by A.P. while she was driving. Subsequently, A.P. pled guilty to aggravated assault with a firearm on Aubrieon Davis for that incident. Ballistics from the .40 caliber casing recovered at Beechgrove matched a casing found in the roadway after the Bridge shooting on July 16, 2013.

Finally, the fifth shooting event occurred on October 8, 2013, at 5923 Becker Street in Marrero. The surviving victim, Jonquell Neal, testified that he and his friend, Deshon Evans, were recording rap music in a studio at Deshon's house, when they heard a knock at the front door. Evans opened the door to Kevin Hicks, Tommie Molette, and defendant-herein. Neal remembered that when defendant-herein came to the door, he said something about running from another shooting where a child had been shot. After the men talked for a little while, they decided to record a song in Deshon's studio.

After they had been rapping and recording for a while in the studio, Neal heard defendant-herein say that he was a "god" and that "your life is in my hands." Neal was concerned but continued writing his song. When he heard a loud sound, Neal thought it was the music at first. But when Neal looked up, Evans' blood was all over him, and Evans was dead. Neal saw Kevin, Molette, and defendant-herein shooting in Evans' direction.

Neal testified that, after he was shot, he picked up Evans' firearm from the floor, and put it in his lap. When Kevin tried to shoot him, Neal raised Evans' weapon, "let off a shot," and Kevin left. Neal stated that more than twenty-five or thirty shots were fired.

That night, Neal received four gunshot wounds in his shoulder, thigh, and "feet." Immediately after the shooting, Neal positively identified Kevin, Molette, and defendant-herein as the shooters from photographic lineups. Neal further reported in his statement at the hospital to Sergeant Gary Barteet of the Jefferson Parish Sheriff's Office ("JPSO") that defendant-herein was shooting a 9-mm Smith and Wesson, that Kevin was using a 9-mm Beretta, and that Molette was using a .40 caliber Colt. At trial, Neal testified that he was "100% sure" that Kevin, Molette, and defendant-herein were the individuals who shot Evans and him that night.

Dr. Susan Garcia of the Jefferson Parish Forensic Center, who was accepted as an expert in the field of forensic pathology, conducted the autopsy on Deshon Evans. She explained that Deshon Evans' cause of death was multiple gunshot wounds, including a lethal wound to the head, and that his manner of death was homicide.

Special Agent William Charles Williams of the FBI was accepted as an expert in the field of historical cell site analysis. Agent Williams analyzed historical records for two phone numbers - one associated with Kevin Hicks and one associated with Molette - for the early morning hours of October 8, 2013. According to Agent Williams, both phones utilized the cellular phone tower nearest to 5932 Becker Street numerous times between 1:04 a.m. and 1:41 a.m. Williams testified that further data was consistent with both phones leaving the area around Becker, traveling along the Westbank Expressway, over the Mississippi River via the Crescent City Connection, and traveling north to the New Orleans East area. Williams testified that both phones were utilizing the nearest tower to 7840 Mills Avenue in New Orleans East between 2:52 a.m. and 2:54 a.m. The Mills Avenue address in New Orleans is associated with defendant's mother.

In order to connect the incidents, the State presented evidence regarding spent cartridge casings recovered at the scenes of the Mount Kennedy, the Beechgrove, the Bridge, and the Becker Street shootings. JPSO Deputy Jené Rauch, who is the supervisor of the firearms and tool mark section for the JPSO Crime Lab, was accepted as an expert in the field of firearm and tool mark examination.

Deputy Rauch testified that, after the July 13, 2013 Mount Kennedy shooting, fourteen casings that were fired "in the same" 9-mm weapon were recovered. Further, 2 casings were recovered that had been fired from a second 9-mm firearm. Also, eight 7.62 by 39-mm caliber casings were recovered that were all fired "in the same weapon." Finally, one .45 caliber casing was found on the scene.

Deputy Rauch testified that, after the July 16, 2013 shooting on the Crescent City Connection Bridge, two casings were recovered: a 9-mm casing recovered from inside of the Hicks' vehicle and a .40 caliber casing recovered from the roadway of the Bridge. Ballistics revealed that the .40 caliber casing at Beechgrove was fired from the same .40 caliber pistol used during the shooting on the Bridge that injured defendant-herein.

Deputy Rauch further testified that, after the Becker Street shooting in October 2013, eight 9-mm casings were recovered that had been fired from the same 9-mm pistol. Next, four 9-mm casings were recovered that had been fired from a second 9-mm pistol. Also, thirteen casings fired from a .40 caliber pistol were recovered. Finally, a .45 caliber Taurus pistol was recovered from the scene but ballistics confirmed that it was damaged by a bullet during the shooting, which prevented it from firing that night.

Deputy Rauch testified that the ballistics database used by law enforcement connected one 9-mm firearm to the shootings at Mount Kennedy on July 13, 2013; on the Crescent City Connection Bridge on July 16, 2013; on Becker Street on October 8, 2013; and at the scene of a homicide at I-10 and Clearview Parkway on December 30, 2013. At Mount Kennedy, fourteen 9-mm rounds were shot from this weapon. After the Bridge shooting, one expended 9-mm casing from this weapon was found on the floor of the interior of the vehicle driven by the Hicks' brothers that night. At Becker Street, eight 9-mm rounds were shot from this weapon. Finally, three casings fired from this weapon were found at the Clearview/I-10 homicide but further investigation revealed that the December homicide was not linked to the instant crimes.

JPSO Deputy Chief Timothy Scanlan, who is the Commander of the Technical Services Bureau, was accepted as an expert in the fields of firearms and tool mark examination, blood stain pattern analysis, and crime scene reconstruction. Deputy Chief Scanlan investigated the Mount Kennedy and Becker Street crime scenes and formulated conclusions. Deputy Chief Scanlan asserted that Jonquell Neal's testimony was consistent with the cartridge case distribution and the angles of fire at the Becker Street crime scene. He also asserted that after reviewing reports of the Mount Kennedy scene, what he found there was consistent with the description of events provided by J.A.

After hearing the testimony and evidence, the twelve-person jury found defendant-herein guilty of the second degree murder of Deshon Evans; the attempted second degree murder of Jonquell Neal; the attempted second degree murder of J.; and the attempted second degree murder of J.A. Defendant-herein appeals his convictions.

Discussion

On appeal, defendant raises two assignments of error: first, defendant contends that the evidence was insufficient to prove his guilt on any count, and second, defendant argues that his consecutive sentence of life plus fifty years is unconstitutionally excessive.

In his first assignment of error, defendant argues that the trial court erred in failing to grant both his Motion for New Trial and his "motion for post-verdict judgment of acquittal" based on insufficient evidence. With respect to the Becker Street shootings, defendant contends that only one witness - the surviving victim, Jonquell Neal - identified him as one of the assailants. Defendant asserts that, although Neal's testimony corroborated the ballistic evidence, Neal was impeached because he admitted to hiding a gun in the house before the police arrived.

As to the Mount Kennedy shootings, defendant argues that the only witness who identified him was J.A., who never told the same version of her story twice, but consistently protected the father of her four children, A.P., from culpability.

Defendant further notes that the ballistics evidence reflects that the 9-mm weapon attributed to one of the Hicks brothers was used after he was incarcerated in December of 2013, and, thus, casts reasonable doubt on his involvement in these crimes. He argues that there was no DNA, fingerprints, or other physical evidence to link him to any of the crimes.

The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. With regards to the motion for new trial, this Court has recognized that the denial of a motion for new trial based on the verdict being contrary to the law and evidence is not subject to review on appeal; however, both the Louisiana Supreme Court and this Court have still addressed sufficiency claims under these circumstances. State v. Bazley , 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 18-19, writ denied , 11-282 (La. 6/17/11), 63 So.3d 1039.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83 ; State v. Washington , 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

On appeal, defendant does not argue that the State failed to prove the elements of the offenses, but rather challenges the State's failure to prove his identity as the perpetrator. As it is the only issue raised, it is the only issue that we will address.

Defendant was convicted of one count of second degree murder and three counts of attempted second degree murder. La. R.S. 14:30.1 provides that second degree murder is the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. 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." State v. Holmes , 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 191, writ denied , 13-1395 (La. 1/10/14), 130 So.3d 318. Specific intent need not be proven as a fact but may be inferred from the circumstances surrounding the offense and the defendant's conduct. Id. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. Id. In order to convict a defendant of attempted second degree murder, the State must prove beyond a reasonable doubt that the defendant had the specific intent to kill and that he committed an overt act in furtherance of that goal. State v. Bishop , 01-2548 (La. 1/14/03), 835 So.2d 434, 437.

Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Ray , 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied , 13-1115 (La. 10/25/13), 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

As to the Becker Street shootings, the surviving victim, Jonquell Neal, testified at trial that defendant-herein, Kevin, and Molette attempted to kill him and also killed Evans. He was "100%" positive that the three defendants were the perpetrators that shot him four times after shooting Deshon Evans. There was no reasonable hypothesis of innocence presented.

As to the Mount Kennedy shootings, J.A. testified at trial that she and her two-year-old son, J., were walking toward their apartment from their car when she saw defendant-herein and Anderson, whom she knew from their neighborhood, shoot at them. Again, there was no reasonable hypothesis of innocence presented.

Additionally, Chief Scanlan testified that Neal's testimony was consistent with the cartridge case distribution and the angles of fire at the Becker Street crime scene. He also asserted that, after reviewing reports of the Mount Kennedy scene, J.A.'s description of the events was consistent with the distribution of casings found at that crime scene.

Under Louisiana law, a victim's or witness' testimony alone is usually sufficient to support the verdict. State v. Munson , 12-327 (La. App. 5 Cir. 4/10/13), 115 So.3d 6, 13, writ denied , 13-1083 (La. 11/22/13), 126 So.3d 476. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner , 05-75 (La. App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied , 05-2591 (La. 5/26/06), 930 So.2d 20. Here, there was no internal contradiction or irreconcilable conflict with the physical evidence presented at trial of these counts.

Further, although defendant argues that the testimony of Neal and J.A. were not credible, the jury heard the testimony and obviously found the State's witnesses to be credible. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan , 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In light of the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to prove that defendant was the perpetrator of the offenses and that the State negated any reasonable probability of misidentification. Accordingly, this assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred by imposing consecutive sentences. He contends that the meaningless compounding of sentences does nothing for any legitimate state or community interest. Defendant further contends that the trial court's justification for consecutive sentences - that the two shootings occurred months apart - is not sufficient to impose an excessive sentence of life plus fifty years.

Defendant was convicted of one count of second degree murder and three counts of attempted second degree murder. The sentence for a conviction of second degree murder is life imprisonment at hard labor, and the sentence for a conviction of attempted second degree murder is fifty years at hard labor. See La. R.S. 14:30.1 ; La. R.S. 14:27. The trial judge sentenced defendant to life imprisonment on count one and fifty years imprisonment each on counts two, three, and four. He ordered the sentences on counts one and two to run concurrently with one another, and he ordered the sentences on counts three and four to run concurrently with one another. The trial judge then ordered the sentences on counts three and four to run consecutively to the sentences on counts one and two.

Following sentencing, defense counsel filed a motion to reconsider the sentences as they are unconstitutionally excessive as imposed. The trial judge denied that motion, stating:

Sure. As it relates to the motion to reconsider the sentences concerning Mr. Kevias Hicks, as it relates to the excessiveness and unconstitutionality of the life sentence for second-degree murder, it is an issue that has been resolved. It is clearly not an excessive sentence. With regard to the consecutive nature of the sentences on counts 3 and 4, this Court sat through a multiple day trial at which this Court heard testimony about Mr. Kevias Hicks' participation in two separate shootings, one of which involved the shooting of a young-two year old child and then the separate shooting that involved the shooting and killing of an individual and the attempted murder of another. Two separate instances, two separate scenes months apart, one in July and one in October, clearly not part of the same action, two separate actions, two separate times that Mr. Kevias Hicks saw it fit to pull out a gun and shoot what ultimately amounted to three actual individuals being shot, one dieing [sic] and another fortunately for her being missed but just by shear [sic] luck. If ever there was an appropriate scenario for a consecutive sentence, this is certainly the scenario in which a consecutive sentence ought to be had and therefore, the Court denies the motion to reconsider the sentence as it relates to that.

On appeal defendant argues that the consecutive nature of his sentences makes them excessive. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130, writ denied , 08-1649 (La. 4/17/09), 6 So.3d 786. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

La. C.Cr.P. art. 883 provides as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

"Consecutive sentences are indicated under Article 883" where the bills of information allege offenses that occurred on different dates and at different locations. See State v. Wilson , 99-105 (La. App. 5 Cir. 7/27/99), 742 So.2d 957, 959, writ denied , 99-2583 (La. 2/11/00), 754 So.2d 935.

In State v. Williams , 10-265 (La. App. 5 Cir. 11/9/10), 54 So.3d 98, 105, this Court found that even if the excessiveness issue regarding the consecutive nature of the sentences had been properly preserved, such claim had no merit as the bill of information alleged offenses that occurred on different dates to two different juveniles at different locations.

In State v. Page , 02-689 (La. App. 5 Cir. 1/28/03), 837 So.2d 165, writ denied , 03-0951 (La. 11/7/03), 857 So.2d 517, the defendant's convictions resulted from four separate courses of conduct that occurred on four separate days over a one-month period. The defendant received concurrent sentences on those counts arising from a single course of conduct. His four groups of sentences were then ordered to run consecutively with each other. This Court found that the defendant's consecutive sentences were justified and imposed in accordance with La. C.Cr.P. art. 883, noting that the victims were placed in grave danger and could easily have been killed.

In the instant case, we find that defendant's consecutive sentences were justified and imposed in accordance with La. C.Cr.P. art. 883. Defendant's convictions resulted from two separate courses of conduct that occurred on separate days at separate locations approximately three months apart. Defendant committed two counts of attempted second degree murder in July of 2013 and committed second degree murder and attempted second degree murder in October of 2013. We find that the trial court did not err by ordering the sentences to run consecutively. Accordingly, this assignment of error lacks merit.

Errors patent

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

We note that neither the transcript nor the commitment reflects that the trial judge advised defendant of the provisions of La. C.Cr.P. art. 930.8. It is well-settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, this Court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09-0248 (La. 10/30/09), 21 So.3d 272. Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. Based on the foregoing, defendant's convictions and sentences are hereby affirmed.

AFFIRMED .

      In the same bill of indictment, the Jefferson Parish District Attorney also charged Kevin Hicks and Tommie Molette a/k/a Tucker Molette with the second degree murder of Deshon Evans (count one) and the attempted second degree murder of Jonquell Neal (count two). Further, in that same indictment, the grand jury indicted Kedrick Anderson and Kevin Hicks for the attempted second degree murder of a known juvenile (hereinafter "J.") and attempted second degree murder of his mother, J.A., in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (counts three and four respectively). The co-defendants all have appeals pending before this Court: State v. Kevin Hicks , 17-696 (La. App. 5 Cir. 10/17/18), 257 So.3d 1283; State v. Tommie Molette , 17-697 (La. App. 5 Cir. 10/17/18), --- So.3d ---- ; and State v. Anderson , 18-45 (La. App. 5 Cir. 10/17/18), --- So.3d ----.
      Further, throughout this opinion, we will use the juvenile victim's and his family's initials to protect the identity of the juvenile crime victim. La. R.S. 46:1844(W)(3). The minor will be referred to by his first initial, J., and his mother will be referred to by her initials, J.A. See State v. Lirette , 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801, 804, n.1, writ denied , 12-1694 (La. 2/22/13), 108 So.3d 763.

      The Hicks brothers and Tommie Molette were tried together. Anderson, who was not charged with second degree murder, was tried separately from the other three co-defendants.

      In 2010, A.P. and Richshawn Williams, an associate of the Hicks brothers, were charged with multiple counts of armed robbery. In 2011, A.P. pled guilty to one count of the lesser charge of accessory after the fact to armed robbery in exchange for a reduced sentence of three years; Williams pled guilty to one count of armed robbery in exchange for a sentence of twenty years. The disparity in their sentences created tension between A.P. and Williams.

      Originally, J.A. positively identified Kevin, Kevias, and Anderson from photographic lineups as the shooters. However, at trial, she testified that she did not recall seeing Kevin's face.

      A full discussion of ballistics evidence presented at trial is presented infra .

      Dr. Garcia testified that Deshon Evans received six gunshot wounds : a projectile entered the upper left chest near the arm pit and exited through his arm; a projectile entered the left forearm and exited through his back; another projectile entered the forearm and exited above the wrist; a projectile entered the back side of the right thigh going through the muscle and exiting the thigh; a fifth projectile entered decedent's cheek going from right to left but did not exit; and the sixth projectile was the lethal wound to the right side of the head that penetrated his brain. Dr. Garcia recovered intact projectiles from the decedent's brain.

      Trial testimony revealed that an unrelated defendant pled guilty to the December homicide on Clearview Parkway at I-10.

      Here, defendant filed both a Motion for Acquittal Notwithstanding the Verdict and a Motion for New Trial in the district court, challenging the sufficiency of the evidence used to convict him, which the trial court denied.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Gladys VANCOURT, as the Legal Tutrix of the Minor, Quendel Jones v. ST. JAMES PARISH SCHOOL BOARD and Tonya Harden
    NO. 18-CA-75
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, GLADYS VANCOURT, AS THE LEGAL TUTRIX OF THE MINOR, QUENDEL JONES, DaShawn P. Hayes, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, ST. JAMES PARISH SCHOOL BOARD AND TONYA HARDEN, Andrew C. Abrams
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

In this case arising from an alleged April 3, 2014 altercation between a teacher and student at Paulina Elementary School, Gladys Vancourt, tutrix of the minor student, appeals a July 17, 2017 final judgment of the trial court finding that she failed to carry her burden of proof and dismissing with prejudice her claims against St. James Parish School Board ("SJPSB") and Ms. Tonya Harden. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Ms. Vancourt filed her petition for damages on April 2, 2015, and defendants filed their answer and affirmative defenses shortly thereafter on April 21, 2015. On October 27, 2015, Ms. Vancourt filed a motion for a telephone status conference for the purposes of declaring deadlines and setting the matter for trial on the merits. Following a pretrial conference, on November 18, 2015, the court issued a pretrial order setting the case for trial on April 19, 2016, and establishing discovery and motion deadlines.

On February 12, 2016, defendants filed a motion for summary judgment seeking to have Ms. Vancourt's suit dismissed with prejudice. More than a month later, on March 21, 2016, Ms. Vancourt filed an opposition to the motion for summary judgment in which she argued that the motion for summary judgment was premature because no discovery had been conducted. On March 29, 2016, the trial court issued an amended pretrial order setting a new trial date of November 22, 2016, new discovery deadlines, and a July 25, 2016 hearing date for the motion for summary judgment.

Following the July 25, 2016 hearing, the trial court issued a judgment on August 17, 2016, in which the judge construed the motion for summary judgment as exceptions of no cause action and no right of action and allowed Ms. Vancourt thirty days to amend the petition to remove the grounds of the objections raised through the exceptions. Ms. Vancourt filed her amended petition on September 19, 2016. Defendants filed a motion to dismiss on the basis that Ms. Vancourt's petition was untimely. This motion was denied by judgment dated December 12, 2016.

On January 3, 2017, SJPSB filed a motion to set a status conference for the purpose of resetting the trial date. A telephone conference was held on February 24, 2017, during which Ms. Vancourt's attorney was absent. On March 3, 2017, the trial court issued a second amended pretrial order setting a new trial date for June 23, 2017, as well as discovery and other motion deadlines.

On June 15, 2017, one week before trial, Ms. Vancourt filed a motion to continue the trial arguing that there had been inadequate opportunity for discovery and that her counsel was not served with notice of the February 24, 2017 status conference during which the trial date was selected. At the June 19, 2017 final pretrial conference, which Ms. Vancourt's counsel failed to attend, the trial court denied the motion to continue the trial. Ms. Vancourt sought supervisory review of that decision from this Court.

This Court stayed the trial pending the disposition of Ms. Vancourt's writ application. In our June 23, 2017 disposition, this Court noted that Ms. Vancourt's counsel argued that he did not receive notice of the February 24, 2017 telephone status conference but did not claim that he did not receive proper notice of the March 7, 2017 second amended pretrial order setting the June 23, 2017 trial date. Despite receiving the March 7, 2017 order setting the June 23, 2017 trial date, Ms. Vancourt's counsel did not file his motion to continue the trial until June 15, 2017. This Court also observed that although Ms. Vancourt's counsel argued that defendants failed to adequately respond to discovery requests propounded upon them in January of 2016, he had not filed a motion to compel responses to that discovery. This Court found no abuse of the trial court's broad discretion in denying Ms. Vancourt's motion to continue the trial, denied the writ application accordingly, and lifted the stay of the trial.

Because this Court stayed the trial court proceedings pending our disposition of Ms. Vancourt's writ application, the trial was set to resume on July 17, 2017. The court also set a hearing on that same date for the motion to compel belatedly filed by Ms. Vancourt on June 22, 2017. On July 10, 2017, one week before the new trial date, Ms. Vancourt filed another motion to continue the July 17, 2017 trial and to reset the hearing on her motion to compel. The trial court denied that motion on July 13, 2017.

The matter proceeded to trial on July 17, 2017, at which time Ms. Vancourt failed to put forth any evidence. On the same day, the trial court rendered a judgment in favor of defendants and dismissed Ms. Vancourt's claims with prejudice.

On July 28, 2017, Ms. Vancourt filed a motion for a new trial. Defendants opposed the motion for a new trial, arguing that Ms. Vancourt's motion was untimely pursuant to La. C.C.P. art. 1974 and that the motion failed to set forth grounds under La. C.C.P. art. 1971 upon which a new trial may be granted. The trial court issued a judgment on August 21, 2017, denying Ms. Vancourt's request for new trial.

On appeal, Ms. Vancourt raises the following three assignments of error:

1. The trial court erroneously denied the motion to compel discovery when the defendants were served with several discovery requests, failed to response [sic ] within the applicable time period, and did not participate in a rule 10.1 conference.
2. The trial court erroneously denied a motion to continue the trial when the plaintiff did not receive notice of the status conference that set the trial date and discovery was far from complete and neither party could certify that discovery was complete.
3. The trial court erroneously granted the defendant's motion for judgment of involuntary dismissal when it did not afford the plaintiff her right to conduct discovery and she did not receive notice of the status date selecting a trial date.

In its appellee brief, SJPSB moves this Court to award damages, including attorney fees and all costs, against Ms. Vancourt for frivolous appeal.

DISCUSSION

We find, first, that the law of the case doctrine applies to certain of Ms. Vancourt's assignments of error as they relate to the trial court's purportedly erroneous decision to deny her motion to continue the trial. Under the law of the case doctrine, an appellate court will not reconsider its own rulings of law in the same case. Boudoin v. Ochsner Clinic Found. (In re Med. Review Panel Proceedings) , 17-488 (La. App. 5 Cir. 3/14/18), 241 So.3d 1226. It is applied to parties who have had the identical issue presented and decided previously by the appellate court in an earlier appellate proceeding in the same case. Id. Ms. Vancourt's argument that the trial court erred when it denied her motion to continue the trial when she failed to receive notice of the status conference setting the trial date and discovery deadlines was presented to this Court previously in her application for supervisory writs. At that time, we found no abuse in the trial court's broad discretion in denying Ms. Vancourt's motion to continue the trial on the grounds that her counsel did not receive notice of the status conference. Pursuant to the law of the case doctrine, we decline to reconsider our previously rendered ruling on that same motion.

Next, considering Ms. Vancourt's assignment of error concerning the denial of her motion to compel, we find that the trial court did not abuse its discretion in denying the motion. La. C.C.P. art. 1551 provides the trial court with great discretion in implementing pretrial orders and ensuring that the items of the pretrial order are enforced. Moonan v. La. Med. Mut. Ins. Co. , 16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533. When a party's attorney fails to obey a pretrial order, or to appear at the pretrial conference, the court, on its own motion or on the motion of a party, may make such orders as are just. Id. ; La. C.C.P. art. 1551(C). Considering the procedural history of this case, which shows that Ms. Vancourt had nearly two years to conduct discovery, as well as Ms. Vancourt's counsel's failure to appear at the June 19, 2017 pretrial conference, we find no abuse of the trial court's discretion in denying her motion to compel discovery that was filed one day before the June 23, 2017 trial date.

Finally, we note that while Ms. Vancourt raised the question of whether the trial court erred in denying her motion for a new trial as an issue for this court to consider, she failed to put forth any argument concerning that issue in her appellate brief. Under Rule 2-12.4(B)(4) of the Uniform Rules for the Courts of Appeal, all assignments of error and issues for review must be briefed. Because Ms. Vancourt has failed to brief the issue of whether the trial court erred in denying her motion for a new trial, we consider the issue abandoned.

CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court dismissing Ms. Vancourt's claims with prejudice. We tax all costs of this proceeding to Ms. Vancourt, but decline to award any additional damages to SJPSB as requested.

AFFIRMED

      See Vancourt v. St. James Parish School Board , 17-C-331 (La. App. 5 Cir. 6/23/17)(unpublished writ disposition).

      Unbeknownst to this Court, Ms. Vancourt belatedly filed a motion to compel on June 22, 2017, the day before this Court's June 23, 2017 disposition of her writ application.

      Ms. Vancourt sought supervisory review of this decision of the trial court, however, because the writ application did not contain a notice of intention to apply for supervisory writs and a return date set by the trial judge as required by Rule 4-2 of the Uniform Rules for the Courts of Appeal, this Court did not consider the writ application. See Vancourt v. St. James Parish School Board , 17-C-382 (La. App. 5 Cir. 7/18/17)(unpublished writ disposition).


author: WICKER, J.

text:
    STATE of Louisiana v. Byron Develle GILLIN
    NO. 18-KA-198
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, BYRON DEVELLE GILLIN, Gwendolyn K. Brown
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   WICKER, J.

Defendant, Byron Gillin, appeals his convictions and sentences for possession with intent to distribute marijuana and possession of methamphetamine. Defendant's appointed appellate counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant's convictions, vacate his sentences, remand to the trial court for clarification of the sentences, and grant appellate counsel's motion to withdraw.

STATEMENT OF THE CASE

On December 8, 2016, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant with possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A) (count one) and possession of a controlled dangerous substance, methamphetamine, in violation of La. R.S. 40:967(C). Defendant pled not guilty to the charges at his arraignment. On May 22, 2017, defendant withdrew his pleas of not guilty and pled guilty as charged.

On June 14, 2017, the trial judge sentenced defendant in accordance with the plea agreement to five years at hard labor for his possession with intent to distribute marijuana conviction and five years at hard labor for his possession of methamphetamine conviction. The trial judge ordered that the sentences run concurrently and further imposed a $500.00 fine. On July 14, 2017, defendant filed a motion to reconsider sentence, which the trial judge denied. This appeal follows.

FACTUAL BACKGROUND

Defendant pled guilty without proceeding to trial. However, the state provided the following factual basis for the guilty pleas:

[I]f the State went to trial it would prove beyond a reasonable doubt that the Defendant Bryon Gillin did on or about September 22, 2016 violate Louisiana Revised Statute 40:966(A) and that he did knowingly or intelligently possess with the intent to distribute a controlled dangerous substance to wit Marijuana.
Additionally, the State would prove beyond a reasonable doubt that on or about September 22, 2016 that the Defendant, Byron Gillin did violate Louisiana Revised Statute 40:967(C) and that he did knowingly, intentionally possess a controlled dangerous substance to wit Methamphetamine, this occurring in the Parish of Jefferson.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir.1990), defendant's appointed appellate counsel has filed an Anders brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles , the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Jyles , 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. "When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal." State v. Dufrene , 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed appellate counsel's brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The state agrees and urges this Court to grant defense counsel's request to withdraw as counsel of record. An independent review of the record supports counsel's assertion that there are no non-frivolous issues to raise on appeal.

First, the bill of information filed properly charged defendant with possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) and possession of methamphetamine in violation of La. R.S. 40:967(C). As required, the bill of information clearly, concisely, and definitely states the essential facts constituting the offenses charged and sufficiently identifies defendant and the crimes charged. See La. C.Cr.P. arts. 464 -66. Second, the minute entries reflect that defendant appeared at each stage of the proceedings against him. The record reflects that defendant and his counsel physically appeared in open court for defendant's arraignment, guilty plea proceeding, and sentencing.

Third, defendant pled guilty to the charges against him. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief.

State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. 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. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon , 449 So.2d 463, 464 (La. 1984).

The record reflects that defendant was aware he was pleading guilty to the charged offenses-possession with intent to distribute marijuana and possession of methamphetamine. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights by means of the waiver of rights form, which he signed, and during the colloquy with the trial judge.

The trial court advised defendant of the nature of the offenses with which he was charged and the state orally provided a factual basis for the pleas. The trial judge informed defendant of the statutory penalty ranges for the offenses and the agreed upon sentences that defendant would receive. The trial court was convinced that defendant understood his rights, the charges against him, and the possible penalties he faced. After the guilty plea colloquy with defendant, the trial judge accepted the pleas as knowingly, intelligently, and voluntarily made.

Last, defendant's sentences were imposed pursuant to a plea agreement and present no non-frivolous issue for appeal. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C.Cr.P. art. 881.2(A)(2). Because defendant's sentences were imposed in conformity with a plea agreement which was set forth in the record at the time of the plea, defendant cannot seek review of his sentences on appeal. See State v. Smith , 09-1043 (La. App. 5 Cir. 6/29/10), 43 So.3d 261, 265.

Nevertheless, defendant's sentences fall within the sentencing ranges statutorily prescribed. As to his possession with intent to distribute marijuana conviction, defendant faced a sentencing range of five to thirty years imprisonment and payment of a mandatory fine not to exceed $50,000.00. See La. R.S. 40:966(B)(3). As to his conviction for possession of methamphetamine, defendant faced a sentencing range of not more than five years imprisonment and a permissive fine of not more than $5,000.00. See La. R.S. 40:967(C)(2). The trial court sentenced defendant in accordance with the plea agreement to five years imprisonment on each conviction, with the sentences to run concurrently. The trial court further imposed a $500.00 fine, well within the prescribed statutory penalty range.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant's appointed appellate counsel has adequately demonstrated her review and analysis of the record in this case. An independent review of the record supports counsel's assertions set forth in her Anders brief. Therefore, we find that counsel's request to withdraw as counsel of record should be granted.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. This Court routinely reviews records for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether a defendant makes such a request. The record reflects the following errors patent:

Although the minute entry from defendant's sentencing reflects that the trial court advised defendant of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8, the transcript indicates an incomplete advisal. Accordingly, we hereby advise defendant that, pursuant to La. C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922. See State v. Ramsey , 10-333 (La. App. 5 Cir. 1/25/11), 60 So.3d 36, 42 ; State v. Newman , 12-359 (La. App. 5 Cir. 12/11/12), 107 So.3d 775, 781.

Second, the record reflects that the trial judge imposed a $500.00 fine, but did not specify whether he imposed a $500.00 fine in connection with defendant's sentence on count one or count two, or both. In State v. Gardner , the trial judge imposed a $500.00 fine in connection with the defendant's convictions for six counts of pornography involving juveniles but did not specify which count or counts the fine was associated with. 16-13 (La. App. 5 Cir. 9/8/16), 202 So.3d 513, 514, 517-518. This Court found that the defendant's sentences were indeterminate under La. C.Cr.P. art. 879, vacated the defendant's sentences, and remanded the matter for the trial judge to clarify the sentences. See also State v. Gomez , 06-417 (La. App. 5 Cir. 11/28/06), 947 So.2d 81, 86.

In this case, we find that defendant's sentences are indeterminate because the trial judge did not specify whether the $500.00 fine was imposed in connection with count one or count two, or both. Therefore, we vacate defendant's sentences and remand the matter to the trial court for the trial judge to clarify the sentences as to the fine imposed.

CONCLUSION

For the reasons provided, we affirm defendant's convictions but vacate defendant's sentences and remand the matter for the trial court to clarify the sentences as to the $500.00 fine imposed. Further, we grant appellate counsel's motion to withdraw as counsel of record.

CONVICTIONS AFFIRMED; SENTENCES VACATED; MATTER REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      The trial judge imposed court costs, fees, and fines as follow: "$642.00 in court costs, $500 fine ... $125 Commissioner fund fee, $2.00 indigent transcript fee, and a mandatory $250.00 fee to the Jefferson Parish Sheriff's Office." The trial judge ordered that defendant be given twelve months from his release in which to pay.

      On September 11, 2017, the trial court granted defendant an out-of-time appeal.

      See Errors Patent Discussion concerning the indeterminate nature of the trial court's imposition of a $500.00 fine.

      The record also reflects that the trial court failed to inform defendant of the time period in which he must file an appeal. This error, however, is moot because defendant has been granted an out-of-time appeal.


author: GREMILLION, Judge.

text:
    STATE of Louisiana, IN the INTEREST OF C.D.W. v. T.R.W.
    17-1008
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Shane K. Hinch, The Larry Roach Law Firm, 2917 Ryan Street, Lake Charles, Louisiana 70629, COUNSEL FOR APPELLEES: The State of Louisiana, J.B., and M.B. (as the legal custodians of C.D.W.)
    LaKetha W. Holmes, Holmes Family Law Group, LLC, 112 N. Steward Street, DeRidder, Louisiana 70634, COUNSEL FOR DEFENDANT/APPELLANT: T.R.W. (biological mother of C.D.W.)
    Walter M. Sanchez, The Sanchez Law Firm, LLC, 1200 Ryan Street, Lake Charles, Louisiana 70601, COUNSEL FOR APPELLEES: The State of Louisiana and the minor child, C.D.W.
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

This court issued a rule ordering Appellant, T.R.W. (the biological mother of the minor child, C.D.W.), to show cause, by brief only, why her appeal should not be dismissed for having been taken from a judgment lacking proper decretal language. See State in the Interest of J.C. , 16-138 (La.App. 1 Cir. 6/3/16), 196 So.3d 102. For the reasons set forth below, we dismiss the appeal without prejudice and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

C.D.W. was taken into State custody at the time of his birth, July 25, 2009, because he was born with controlled substances in his system. T.R.W. is his birth mother. Other than a brief period when he resided with his maternal grandmother, C.D.W. has been with the same family, J.B. and M.B., since his birth. J.B. and M.B. were awarded sole custody of C.D.W. in December of 2015. On February 1, 2017, the State of Louisiana filed a petition for termination of T.R.W.'s parental rights. A trial was held on June 28, 2017, and the trial court took the matter under advisement. On July 17, 2017, the trial court issued written reasons for judgment wherein it found "that [J.B. and M.B.] carried their burden of proof to terminate the parental rights of T.R.W. to C.D.W." The written reasons for judgment indicated that the trial court "will" terminate the parental rights of T.R.W. and certify C.D.W. for adoption. The written reasons also indicated that custody of C.D.W. was given to J.B. and M.B. pursuant to La.Ch.Code art. 1037(D).

On July 17, 2017, the same day written reasons were assigned, the trial court signed a judgment which stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Written Reasons for Judgment rendered on this date shall be made a judgment of the Court.

Appellant filed a notice of appeal of that judgment on July 24, 2017, and an order of appeal was signed. The court issued a notice of appeal on July 31, 2017. When the record was lodged in this court, a rule was issued ordering Appellant to show cause why her appeal should not be dismissed as having been taken from a judgment that lacked proper decretal language.

DISCUSSION

In Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Mid City Holdings, L.L.C. , 14-506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, the court stated:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc. , 10-477, p. 12 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 915. "A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." La. C.C.P. art. 1841. "A valid judgment must be precise, definite and certain .... The decree alone indicates the decision .... The result decreed must be spelled out in lucid, unmistakable language. .... The quality of definiteness is essential to a proper judgment.
Input/Output Marine , 10-477, pp. 12-13; 52 So.3d at 915-16 (citations omitted).
... "The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Input/Output Marine , 10-477, p. 13; 52 So.3d at 916.

It is well settled that "[a]ppeals are taken from judgments, not reasons for judgment." State in the Interest of J.C. , 196 So.3d at 106. The judgment in this case merely references the written reasons and states that they "shall be made a judgment of the Court." From the judgment itself, it cannot be ascertained what specific relief was granted by the court. Thus, this judgment "does not contain all of the necessary decretal language to meet the requirements of a final judgment." Dietz v. Dietz , 13-186, p. 8 (La.App. 3 Cir. 11/6/13), 128 So.3d 1215, 1220.

T.R.W. argues that "[t]he trial court was clear in its rendering that" J.B. and M.B. were given custody of C.D.W. and that such "judgment was deemed final" because the court terminated the parental rights of T.R.W. and certified C.D.W. for adoption. T.R.W. argues that the written reasons in this case included a final judgment. However, we note that the written reasons for judgment in this case cannot be considered as a final judgment due to the absence of formal decretal language because the written reasons indicate that the court "will terminate the parental rights of [T.R.W.] to [C.D.W.] and certify him for adoption" rather than the trial court actually ordering these things in the written reasons. (Emphasis added.) See Barlow v. Barlow , 13-1092, p. 4 (La.App. 3 Cir. 10/23/13), 161 So.3d 24.

Accordingly, the appeal must be dismissed. When a final judgment is rendered with the proper decretal language, Appellant, T.R.W., may file a new appeal with this court. See Smith v. State, Dep't of Transp. & Dev. , 15-962 (La.App. 4 Cir. 2/17/16), 186 So.3d 1180.

DECREE

For all the reasons given, this court lacks jurisdiction to consider the merits of the appeal because it was taken from a judgment that lacks proper decretal language. Accordingly this appeal is dismissed without prejudice, and the matter is remanded to the trial court with instructions that it sign a judgment containing proper decretal language no later than December 21, 2017.

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED WITH INSTRUCTIONS.

      Pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2, the initials of the parties are used to ensure confidentiality and to protect the identity of the minor child involved in these proceeding.


author: EZELL, Judge.

text:
    Chester DOMINGUE v. LOUISIANA GUEST HOUSE, LLC, d/b/a Camelot of Broussard
    CA 17-633
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Kenneth D. St. Pe, 311 W. University Ave., Ste A, Lafayette, LA 70506, (337) 534-4043, COUNSEL FOR PLAINTIFF/APPELLANT: Chester Domingue
    Mark W. Verret, Stephen G. Collura, Allen & Gooch, ALC, 3900 N. Causeway Blvd., Suite 1450, Metairie, LA 70002, (504) 836-5270, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Guest House, LLC d/b/a Camelot of Broussard
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

Chester Domingue appeals the decision of the trial court granting summary judgment in favor of Louisiana Guest House, LLC, d/b/a Camelot of Broussard (hereinafter "Camelot"). For the following reasons, we reverse the decision of the trial court.

Mr. Domingue's mother, Onelia, was a resident at Camelot, which is a nursing home in Broussard, Louisiana. The ninety-four-year-old Mrs. Domingue suffered several falls while at Camelot, at least twenty seven, though most did not result in injury. Consequently, she was placed on a fall prevention protocol several times, on an on-and-off basis. After falls, she was placed on fall interventions, such as a toileting protocol, only to have the intervention modified or removed later. As a result of these falls, she was counseled not to attempt to use the restroom by herself, though she frequently did anyway. On April 17, 2014, Mrs. Domingue attempted to use a hall restroom by herself. She slipped while transferring from her wheelchair and struck her head. The fall caused a break in an odontoid and C1 fracture, as well as a concussion. Mrs. Domingue passed away on May 8, 2014, as a result of complications of her fall. Camelot began locking all common area restrooms after Mrs. Domingue's accident.

Mr. Domingue filed the present suit, claiming Camelot failed to properly supervise his mother and prevent her fall. Camelot then filed a motion for summary judgment. The trial court ruled that the evidence presented on the motion showed no violations of federal or state regulations and that Mr. Domingue failed to produce factual support "for one or more elements essential" to his claim. The trial court granted Camelot's motion for summary judgment and dismissed Mr. Domingue's claims. From that decision, Mr. Domingue appeals.

Mr. Domingue asserts two assignments of error on appeal. He claims that the trial court erred in weighing competing expert testimonies to reach a factual determination, and that the trial court erred in "ignoring factual evidence ... suggesting defendant breached the standard of care." We agree.

LAW AND DISCUSSION

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Berard v. L-3 Communications Vertex Aerospace , LLC, 2009-1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, writ denied , 2010-0715 (La. 6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett , 2004-0806, p. 7 (La. 6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate 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.Code Civ. P. art. 966 [ (A)(3) ].
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966 [ (D)(1) ]; Janney v. Pearce , 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289 [sic], writ denied. 2010-1356 (La. 9/24/10), 45 So.3d 1078.
In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines , 2004-0806 at 1, 876 So.2d at 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor . Willis v. Medders , 2000-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.
....
Louisiana Revised Statutes 9:2794 sets forth the elements that a plaintiff must prove to succeed in a medical malpractice claim against a physician. In summary, the plaintiff must prove, by a preponderance of the evidence; (1) the standard of care applicable to the physician; (2) a violation of that standard of care by the physician; and (3) a causal connection between the physician's alleged negligence and the claimed injuries. See Pfiffner v. Correa , 94-0924, p. 8 (La. 10/17/94), 643 So.2d 1228, 1233. Where the defendant physician practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within that specialty. Lieux v. Mitchell , 2006-0382, p. 10 (La.App. 1 Cir. 12/28/06), 951 So.2d 307, 314, writ denied , 2007-0905 (La. 6/15/07), 958 So.2d 1199.
Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner , 94-0924 at 9-10, 643 So.2d at 1234. This requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Lieux , 2006-0382 at 11, 951 So.2d at 314. In Pfiffner , the supreme court observed that expert testimony is not always necessary to meet the burden of proof in a medical malpractice case, including "instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can." Pfiffner , 94-0924 at 9, 643 So.2d at 1234. Other examples of such obvious negligence include "obvious unnecessary delays in treatment," "[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure," and "failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary." Pfiffner , 94-0924 at 9-10, 643 So.2d at 1234.

Vanner v. Lakewood Quarters Ret. Cmty. , 12-1828, pp.4-6 (La. App. 1 Cir. 6/7/13), 120 So.3d 752, 755-56 (fifth alteration in original) (bold emphasis ours).

Accordingly, Mr. Domingue was required to come forward with medical expert testimony sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. After a thorough review of the record, we conclude that he did so.

Camelot claims there is no testimony or evidence in the record that sets forth the standard of care applicable to Camelot, or that any negligent action or omission on Camelot's part caused or contributed to Mrs. Domingue's alleged injuries. However, Mr. Domingue introduced the expert affidavit of Patricia Beare, a nursing expert, regarding the standard of care required of Camelot. Though Ms. Beare never specifically used language setting forth a "required standard of care," she cites 42 C.F.R. § 483.25(d) in her affidavit, which set forth the general duties that a "resident environment remains as free of accident hazards as possible" and that residents require "adequate supervision," which she notes as providing interventions to mitigate the risk of accidents. She alleged several actions that Camelot "should have" taken to mitigate Mrs. Domingue's obvious fall risk.

She claims that Camelot should have and failed to provide visual indication on Mrs. Domingue's wheelchair that she was an increased fall risk with a star or leaf, as per their own policy, as this would have allowed all nurses in the facility to know of the increased danger of falls for her. Robin Barbry, the nurse who found Mrs. Domingue after her fall, testified in her deposition that no one indicated to her that Mrs. Domingue required increased supervision, and that nurses had no way of knowing if a resident was at risk for falls without the star or leaf sticker indication on their wheelchairs, though Mrs. Domingue had already fallen twenty-seven times at Camelot prior to the April 27, 2014 accident. Ms. Beare testified that "ALL personnel should be aware of residents who are at risk for falls." Additionally, Camelot's fall prevention policy, introduced by Mr. Domingue, lists chair alarms as possible interventions. Mrs. Beare reported that such an alarm or a wheelchair lap belt should have been used to prevent falls or alert nurses to attempts by Mrs. Domingue to transfer out of her wheelchair without the required assistance. Ms. Barbry indicated that no such alarm was in use at the time of Mrs. Domingue's final fall. Mrs. Beare indicated that she felt Mrs. Domingue's "many falls from slipping out of [her wheelchair] could have been prevented with pommel or antithrust pillows or a self releasing lap belt."

As factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor, we find that Ms. Beare's affidavit sufficiently sets forth a standard of care required of Camelot and clearly states that she believed Camelot breached that standard. Willis , 775 So.2d 1049.

Contrary to Ms. Beare's affidavit was the medical review panel opinion, which simply made a blanket assertion that the actions named by Ms. Beare were optional interventions that were "not a required standard of care." As there was clearly conflicting expert evidence, a genuine issue of material fact exists in this case as to the required standard of care, and summary judgment was inappropriate. It is apparent that the trial court was presented with this competing evidence and erroneously made credibility determinations, weighing the conflicting evidence. This is evident when reviewing the record, wherein the trial court stated that the medical review panel "spent some time reviewing [the] case, and they found differently" than Ms. Beare. Additionally, the trial court's written reasons note that it "agree[d] with the Panel's findings." Weighing evidence and making credibility determinations are to be addressed at a trial on the merits, not at the summary judgment stage of the proceedings. Because credibility determinations are reserved for the fact finder, and as we have found that genuine issues of material fact exist as to the applicable standard of care required of Camelot, we must reverse the granting of the summary judgment.

For the above reasons, the decision of the trial court below is reversed and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are hereby assessed against Louisiana Guest House, LLC, D/B/A Camelot of Broussard.

REVERSED AND REMANDED.


author: COOKS, Judge.

text:
    Dionisio GONZALEZ, et al. v. Carey Leshawn JIMMERSON, et al.
    17-972
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    H. Glenn Marcantel, Jr., Post Office Box 1968, Opelousas, Louisiana 70571, Counsel for Plaintiff/Appellant: Gregorio Gonzalez
    Kraig Thomas Strenge, 515 W. University Avenue, Lafayette, Louisiana 70502-2292, Counsel for Defendants/Appellees: Carey LaShawn Jimmerson; Process Piping Materials, Inc.; and United Fire & Casualty Company
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell, Judges.
   COOKS, Judge.

This court issued a rule ordering Appellant, Gregorio Gonzalez, to show cause, by brief only, why his appeal should not be dismissed for having been taken from a judgment lacking proper decretal language. See State v. White , 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144. For the reasons that follow, we dismiss the appeal without prejudice and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 1, 2013, Dionisio Gonzalez (Dionisio), filed a petition for damages naming Carey LaShawn Jimmerson (Jimmerson); Process Piping Materials, Inc. (Process Piping); and United Fire & Casualty Company (United) as Defendants. On or about May 20, 2013, a first supplemental and amending petition was filed to add Gregorio Gonzalez (Gregorio) as a plaintiff. The suit arose out of an automobile accident that occurred on or about March 29, 2012. Dionisio was driving a vehicle in which Gregorio was a passenger when the vehicle was allegedly struck on its rear bumper by a truck with a gooseneck trailer attached. That truck was driven by Jimmerson, owned by Process Piping, and insured by United.

Dionisio settled all of his claims, and said claims were dismissed by a motion and order of partial dismissal signed on October 19, 2015. Thereafter, Defendants filed an exception of prescription as to Gregorio's claims. The exception was heard and taken under advisement. On July 13, 2016, the trial court issued written reasons for judgment and granted the exception based on a finding that Gregorio's petition did not relate back to the original petition filed by Dionisio. A judgment sustaining the exception was signed on July 13, 2016. The judgment also assessed costs against Gregorio. However, the judgment did not dismiss Gregorio's claims against Defendants.

Gregorio filed a motion for devolutive appeal. Defendants filed a motion to dismiss the appeal based on Gregorio's alleged failure to pay the estimated costs to prepare the record. Gregorio then obtained an order to proceed in forma pauperis.

When the record was lodged in this court, a rule was issued ordering Gregorio to show cause why his appeal should not be dismissed for the above-stated reason.

DISCUSSION

The rule to show cause order indicated that Gregorio was to show cause, if there was any, why the appeal should not be dismissed as having been taken from a judgment lacking decretal language. Appellant contends that a judgment sustaining an exception of prescription is a final appealable judgment and cites Estate of Patout v. City of New Iberia , 01-151 (La.App. 3 Cir. 6/27/01), 791 So.2d 741, for that contention. Appellant goes on to assert that the judgment at issue meets the requirements of Thomas v. Lafayette Parish Sch. Sys. , 13-91, p. 2 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056, because "Judge Landry's judgment dismissed Gregorio Gonzalez's case in its entirety on the ground that, as per her Reasons for Judgment, it was not timely filed, did not relate back to the originally filed petition of Dionisio Gonzalez, and is therefore prescribed."

The jurisprudence is clear that "[a] final appealable judgment must contain decretal language, and it 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." Thomas, 128 So.3d at 1056 (quoting White , 921 So.2d at 1146 ).

In Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Mid City Holdings, L.L.C. , 14-506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, the court stated:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc. , 10-477, p. 12 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 915. "A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." La. C.C.P. art. 1841. "A valid judgment must be precise, definite and certain .... The decree alone indicates the decision .... The result decreed must be spelled out in lucid, unmistakable language. .... The quality of definiteness is essential to a proper judgment. Input/Output Marine , 10-477, pp. 12-13; 52 So.3d at 915-16 (citations omitted).
..."The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Input/Output Marine , 10-477, p. 13; 52 So.3d at 916.

The judgment rendered in the present case reads as follows (emphasis in original):

IT IS ORDERED, ADJUDGED, AND DECREED that Defendants' Peremptory Exception of Prescription is SUSTAINED .
IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff, Gregorio Gonzalez, is assessed with the costs of these proceedings.

While the judgment in this case clearly sustains the exception of prescription filed by Defendants, it does not state whether any or all of the claims of Gregorio are dismissed. Therefore, this judgment "does not contain all of the necessary decretal language to meet the requirements of a final judgment." Dietz v. Dietz , 13-186, p. 8 (La.App. 3 Cir. 11/6/13), 128 So.3d 1215, 1220. Accordingly, the appeal must be dismissed. When a final judgment is rendered with the proper decretal language, Gregorio may file a new appeal with this court. See Smith v. State, Dep't of Transp. & Dev. , 15-962 (La.App. 4 Cir. 2/17/16), 186 So.3d 1180.

DECREE

For all the reasons given, this court lacks jurisdiction to consider the merits of Gregorio's appeal because it was taken from a judgment that lacks proper decretal language. Accordingly this appeal is dismissed without prejudice, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED FOR FURTHER PROCEEDINGS.


text:
    Gerald Rodney WHITE and Charlotte White v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al.
    17-629
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
   Fred Andrew Pharis, Pharis & Pharis, 831 DeSoto Street, Alexandria, LA 71301, Telephone: (318) 445-8266, COUNSEL FOR: Plaintiffs/Appellees-Gerald Rodney White and Charlotte White

Jerold Edward Knoll, The Knoll Law Firm, P. O. Box 426, Marksville, LA 71351, Telephone: (318) 253-6200, COUNSEL FOR: Plaintiffs/Appellees-Gerald Rodney White and Charlotte White

Mickey Stephens deLaup, Mickey S. deLaup, APLC, 2701 Metairie Road, Metairie, LA 70001, Telephone: (504) 828-2277, COUNSEL FOR: Defendant/Appellee-Safeco Insurance Co. of Oregon

Victoria R. Murry, Assistant Attorney General, Shane D. Williams, Assistant Attorney General, Louisiana Department of Justice, P. O. Box 1710, Alexandria, LA 71309-1710, Telephone: (318) 487-5944, COUNSEL FOR: Defendant/Appellant-Louisiana Department of Transportation & Development

Madeline J. Lee, Bolen, Parker, & Brenner, Lee & Engelsman, Ltd., P. O. Box 11590, Alexandria, LA 71315-1590, Telephone: (318) 445-8236, COUNSEL FOR: Defendants/Appellees-Church Mutual Insurance Company, Garold A. Mangun, and Mickey Mangun

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

THIBODEAUX, Chief Judge.

Defendant State of Louisiana, Through the Department of Transportation and Development (hereafter "DOTD") appeals a summary judgment granted in favor of homeowners and co-defendants, Garold Mangun and Mrs. Mickey Mangun (hereafter "the Manguns"). DOTD contends that there is a genuine issue of material fact because the Manguns knew or should have known of the defective pecan tree on their property before it fell during a storm, injuring Plaintiff Rev. Gerald Rodney White, and that summary judgment was improper. The Manguns contend they are not liable because they did not maintain the right-of-way; DOTD did. Further, the Manguns, along with insurers, Church Mutual Insurance Company (hereafter "Church Mutual"), and Safeco Insurance Company of Oregon (hereafter "Safeco"), assert that they may not be considered in the litigation because they were dismissed on summary judgment and the Plaintiffs did not appeal the dismissal. Thus, the judgment dismissing them as parties is final. We find that DOTD may not reference the Manguns because the trial court dismissed the Manguns. Because we find summary judgment became final when the adverse judgment was not appealed by the Plaintiffs, this court does not reach the merits as to whether summary judgment was proper.

I.

ISSUES

We must determine whether a co-defendant dismissed under La.Code Civ.P. art. 966(G) can be referenced for comparative fault under La.Civ.Code art. 2323 when the plaintiffs did not appeal the summary judgment. If this court finds that the dismissed co-defendants may be referenced, this court must also determine whether summary judgment as to the dismissed co-defendants was proper.

II.

FACTS AND PROCEDURAL HISTORY

On August 24, 2014, Mr. White was driving in the eastbound lane of Highway 496 in Alexandria, Louisiana during a violent thunderstorm. As Mr. White passed the Manguns' home, a pecan tree located in the right-of-way across the street and maintained by DOTD, fell on Mr. White's truck, pinning him inside the truck. Mr. White had to be extracted from the truck, and he sustained injuries.

Mr. White brought suit for general and special damages, including physical pain and suffering, mental anguish and distress, permanent injuries, medical expenses, lost wages, and any other damages incurred from the accident. Mr. White's wife, Charlotte White, brought a claim for loss of consortium. Mr. and Mrs. White (hereafter "the Whites") filed suit against the City of Alexandria (hereafter "the City"), DOTD, the Manguns and their insurers, Church Mutual and Safeco, alleging negligence for failure to maintain, inspect, and remove the damaged pecan tree.

The City filed an answer to the petition, pleading the affirmative defense of comparative fault. The Manguns answered that they had no actual or constructive notice of the defective tree because they "rarely, if ever" went onto the property where the tree was located. Furthermore, the defect on the tree was only visible from the side facing opposite of the roadway and away from the Manguns' home.

The City filed a motion for summary judgment asserting that DOTD is responsible for maintaining the right-of-ways on State highways and that the City had no notice of the defective pecan tree. The trial court granted the City's motion for summary judgment.

The Manguns and Church Mutual filed a motion for summary judgment. Thereafter, Safeco also filed a motion for summary judgment. The Manguns asserted that they had no knowledge of the tree's defect because they neither maintained the tree nor did they mow the right-of-way. During his deposition, DOTD's expert arborist, Mr. Malcolm Guidry, described the tree's canopy as healthy. The Whites' expert arborist, Mr. Robert Thibodeaux, testified that he saw signs of the tree's failure through bark twists and discoloration, as well as a co-dominant trunk visible on pre-accident photographs of the tree. However, Mr. Thibodeaux noted that these signs were not signs that he would expect a layperson to recognize as signs of the tree's failure. DOTD opposed the summary judgment, arguing that the Manguns did not exercise reasonable care through their failure to maintain, inspect, and remedy the defective tree. The trial court granted summary judgment in favor of the Manguns, Church Mutual, and Safeco. The Whites did not appeal the summary judgment. DOTD now appeals, contending that there is a genuine issue of material fact as to whether the Manguns had notice of the defective tree.

III.

STANDARDS OF REVIEW

"When an appellate court reviews the grant or denial of a motion for summary judgment, it applies the de novo standard of review, 'using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate.' " State Farm Mut. Auto. Ins. Co. v. McCabe , 14-501, 14-502, p. 3 (La.App. 3 Cir. 11/5/14), 150 So.3d 595, 597 (quoting Gray v. Am. Nat'l Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844 ) (citations omitted). Under La.Code Civ.P. art. 966(A)(3), a motion for summary judgment "shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law." McCabe , 150 So.3d at 597.

IV.

LAW AND DISCUSSION

DOTD asserts that the Manguns were negligent in failing to discover the defect and remove the tree and evidence of the Manguns' fault should be introduced for comparative fault at trial. DOTD seeks reversal of the trial court's grant of summary judgment, alleging there remains a genuine issue of material fact over: (1) whether the Manguns exercised reasonable care over their property; (2) whether or not the Manguns could have detected the defect in the tree; and (3) whether the Manguns could have remedied the defect with the exercise of reasonable care.

DOTD alleges that the Manguns are comparatively negligent under La.Civ.Code art. 2317.1 for the ruin, vice, or defect of the tree and should not have been dismissed from the suit.

Louisiana Civil Code Article 2317.1 reads:

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

DOTD contends that it should be able to reference the Manguns' fault at trial for purposes of comparative fault under La.Civ.Code art. 2323 even if the Manguns remain as dismissed co-defendants.

Louisiana Civil Code Article 2323(A) reads:

In any action for damages where a person suffers injury, death, or loss, the degree of percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable ....

DOTD asserts that there remains a genuine issue of material fact that should be determined by the trier of fact. The Manguns advance the argument that they can no longer be considered in the litigation as a dismissed co-defendant under La.Code Civ.P. art. 966(G). The Manguns assert that because the trial court dismissed them as co-defendants from the case after finding them free from fault, and the plaintiffs failed to appeal, they may no longer be referenced at trial.

Louisiana Code of Civil Procedure Article 966(G) reads:

When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party's fault be submitted to the jury or included on the jury verdict form.

The Manguns state that DOTD's appeal is without merit because the Whites did not appeal the summary judgment. Additionally, the Manguns assert that even if this court considers the merits, there is no genuine issue of material fact. The trial court found that the Manguns and their insurers were free from fault and, thus, fault should not be attributed to the Manguns at trial. Further, the Manguns contend that DOTD maintained the tree and the right-of-way at issue. In support of their assertion, the Manguns cite Dixon v. Gray Ins. Co. , 17-29 (La.App. 5 Cir. 6/5/17), 223 So.3d 658, contending that in the absence of an appeal by the plaintiffs, the judgment became final and that this court cannot reach the merits as to whether summary judgment was proper as asserted by DOTD. We agree and find that once a co-defendant is dismissed upon a determination that the party was free from fault, the co-defendant may not be reintroduced into the litigation pursuant to La.Code Civ.P. art. 966(G).

In Dixon , the fifth circuit held that the defendant in an auto accident could not introduce evidence or make reference to the co-defendant dismissed on summary judgment because the co-defendant was found free from fault. The court reasoned that La.Code Civ.P. art. 966(G) is "an emphatic expression by the legislature that there shall be no evidence admitted, nor any consideration of the fault or comparative fault of a party or non-party who has been adjudicated to be without negligence or fault at summary judgment." Id. at 661.

DOTD seeks to introduce evidence of the Manguns' comparative fault at trial even though the Manguns, Church Mutual, and Safeco were dismissed from the suit on summary judgment because the trial court found the Manguns free from fault. Like the dismissed co-defendants in Dixon could not be referenced at trial for comparative fault because of the prohibition provided by La.Code Civ.P. art. 966(G), the Manguns are no longer a party to the litigation and cannot be referenced at trial. Any admission of evidence and references to the Manguns at trial would be in direct conflict with La.Code Civ.P. art. 966(G), and the legislature's stated intent. Thus, the Manguns cannot be considered in the allocation of fault at trial or on a jury verdict form.

Additionally, in Dixon , the court found that the plaintiff's appeal was final because the plaintiff did not appeal the judgment. It stated:

When a judgment dismisses one of several cumulated claims by the plaintiff, the plaintiff must appeal the adverse judgment to obtain affirmative relief. Nunez v. Commercial Union Ins. Co., 00-3062 (La. 2/16/01), 780 So.2d 348, 349. The judgment of dismissal acquires the authority of the thing adjudged when the plaintiff does not appeal the dismissal of his action. Grimes v. La. Med. Mut. Ins. Co., 10-0039 (La. 5/28/10), 36 So.3d 215, 217 ; Nunez, 780 So.2d at 349. An appeal from the judgment of the trial court by another party only brings "up on appeal the portions of the judgment that were adverse to [that party]," but not "the portions of the judgment that were adverse to the plaintiff." Grimes, 36 So.3d at 217, citing Nunez, 780 So.2d at 349.

Id. at 660.

In Dixon , the judgment became final when the plaintiffs did not appeal, and, thus, the court found the remaining defendant's appeal was without merit. Moreover, the court determined it had "no authority to determine whether the grant of summary judgment against [the dismissed co-defendant] was correct on its merits." Id.

Here, DOTD also appeals the judgment seeking to reverse the summary judgment. However, the Whites did not appeal this adverse judgment. Accordingly, this judgment acquired "authority of the thing adjudged." Id. Just as the Dixon court could not reach the merits as to whether the trial court's summary judgment was proper when the plaintiff did not appeal, here, we are unable to address the merits because the Whites did not appeal the adverse judgment. The judgment became final when the Whites did not seek affirmative relief as to the dismissed co-defendant, the Manguns, in a cumulated claim.

The amendment to La.Code Civ.P. art. 966(G) Comment (m), "adopts the rule from prior Article 966(G)(1) that if a person is found in a summary judgment not to be negligent, not at fault, not to have caused the injury or harm, that person cannot be considered in any allocation of fault." 2015 La. Acts No. 422, Comment (m). However, La.Civ.Code art. 2323(A) provides for comparative fault and states that "the degree or percentage of fault of all persons causing or contributing ... shall be determined, regardless of whether the person is a party to the action or a nonparty ...." The two articles seemingly conflict after the amendment of La.Code Civ.P. art. 966(G). Therefore, we must look to harmonize the implications of the amended La.Code Civ.P. art. 966(G) with La.Civ.Code art. 2323.

When presented with conflicting intercodal articles on a similar subject matter, the court looks to the principles guiding statutory construction and interpretation on the same subject matter to harmonize these laws, utilizing legislative intent and "giv[ing] effect that makes the least change in the existing body of law." Wartelle v. Women's and Children's Hosp., Inc. , 97-744, p. 7 (La. 12/2/97), 704 So.2d 778, 782 (citing Theriot v. Midland Risk Ins. Co. , 95-2895 (La. 5/20/97), 694 So.2d 184 ); La.Civ.Code art. 13. "Where it is possible to do so, it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles with other statutory provisions." City of New Orleans v. Bd. of Sup'rs of Elections for Parish of Orleans , 216 La. 116, 43 So.2d 237, 246 (1949) (quoting 50 Am. Jur 367, § 363).

" '[L]aws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject'[.]" Weller v. Van Hoven , 42 La.Ann. 600, 7 So. 702, 702 (La.1890) (citations omitted); see also Louisiana Municipal Ass'n. v. State , 04-227, p. 36 (La. 1/19/05), 893 So.2d 809, 837 (noting that "the legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter."). When statutes are in conflict, "the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character." LeBreton v. Rabito , 97-2221, p. 7 (La. 7/8/98), 714 So.2d 1226, 1229 (citations omitted).

When determining the legislative intent, the House Summary of Senate Amendments for H.B. 696 sheds light that the proposed law, La.Code Civ.P. art. 966(G), is a clarification of the existing law provisions, including La.Civ.Code art. 2323. The amendment is a clarification of "present law provisions relative to a party who is found not at fault, who shall not be considered in any subsequent allocation of fault, and submission of the issue to the jury."

SSHB696, 2015 Leg., Reg. Sess., Act 422 (La. 2015). Accordingly, we find the amendment to La.Code. Civ.P. art 966(G) is a clarification of La.Civ.Code. art. 2323, and must prevail as a latter introduced amendment and as a clarification of the legislature's intent on the issue of comparative fault when a party has been dismissed from litigation upon a finding that the party was not at fault.

We conclude that DOTD shall not refer directly or indirectly to the fault of the Manguns nor shall the Manguns be considered in any allocation of fault at trial. Accordingly, in the absence of an appeal seeking affirmative relief by the Plaintiffs, this court does not reach the merits of DOTD's appeal as to whether the summary judgment is proper because procedurally it is moot.

V.

CONCLUSION

Based upon the foregoing, we dismiss DOTD's appeal, finding that the trial court's summary judgment in favor of the Manguns is final. Accordingly, DOTD may not reference the Manguns at trial. All costs are assessed to the Defendant-Appellant.

APPEAL DISMISSED.

CONERY, J., concurs in the result.