author: McCALLUM, J.

text:
    Lindsey FRENCH, Plaintiff-Appellant v. CLAIBORNE PARISH POLICE JURY and Claiborne Parish Sheriff, Defendant-Appellee
    No. 52,192-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018. Rehearing Denied August 9, 2018
    NELSON W. CAMERON, Shreveport, Counsel for Appellant
    GOLD, WEEMS, BRUSER, SUES & RUNDELL By: Eugene Joseph Sues, Brandon Ashley Sues, Sarah Spruill Couvillon, Alexandria, Counsel for Appellee
    Before PITMAN, COX, and McCALLUM, JJ.
   McCALLUM, J.

Lindsey French, a trusty who was serving his hard labor sentence at the Claiborne Parish Detention Center ("CPDC"), was injured while operating a tractor as part of a grass-cutting crew for the Claiborne Parish Police Jury ("Police Jury"). French's lawsuit against the Police Jury was dismissed on summary judgment because there was no genuine issue of material fact that French was an employee of the Police Jury at the time of his injury, making workers' compensation his exclusive remedy against the Police Jury.

We affirm.

FACTS

French was housed at the CPDC while awaiting trial on drug and firearm charges. On February 18, 2014, French pled guilty to distribution of cocaine and was sentenced to nine years at hard labor. He remained at the CPDC as an inmate of the Louisiana Department of Safety and Corrections following his conviction and sentencing.

According to Assistant Warden John Goodwin, the Claiborne Parish Sheriff ("Sheriff") and the Police Jury had an agreement whereby inmates at the CPDC could be released to work for the Police Jury as part of the highway chipper crew ("crew") that maintained the rights of way along roads in Claiborne Parish. These inmates, or trusties, picked up trash, mowed grass using bush hogging equipment, and removed storm debris.

After French applied for trusty status and was evaluated by the trusty board, he became a trusty on March 3, 2014, and his prison status was changed to minimum security. French was presented with the option of working on the crew because he claimed he could drive a tractor. French accepted the offered assignment.

French, along with five other trusties from the CPDC, operated tractors provided by the Police Jury to bush hog grassy areas alongside roads. The trusties were transported by the Police Jury. On mornings that the trusties would work on the crew, a foreman or inmate supervisor would normally arrive at the CPDC between 6:45 and 7:00 a.m. to pick up the trusties. The foreman or inmate supervisor would return the inmates to the CPDC, usually between 2:30 and 3:30 in the afternoon depending on the duration of that day's work.

On June 10, 2014, the tractor being operated by French struck an obscured tree stump. French was not wearing a seatbelt at the time. He recalled that when the tractor bucked from the impact, he fell through an opening where a tractor step should have been, and landed on the ground. His pelvis was fractured when a tractor wheel then rolled onto him.

On March 12, 2015, French filed a lawsuit against the Police Jury and the Sheriff. The Sheriff was subsequently dismissed from the lawsuit on a joint motion. French alleged that the Police Jury was liable for: (i) failing to adequately train inmates in the operation of the work machinery; (ii) failing to adequately supervise the inmates to ensure they were following proper safety procedures; (iii) failing to adequately inspect the area to be bush hogged for hidden dangers; (iv) instructing French to bush hog an area that did not require it; (v) instructing inmates not to wear seatbelts or telling them it was more dangerous to wear a seatbelt; (vi) failing to maintain the tractor so that it could be operated safely; and (vii) failing to provide a safe work place.

On November 21, 2015, the Police Jury filed a motion for summary judgment asserting that it was immune from liability under La. R.S. 15:708. On July 21, 2017, the Police Jury filed a supplemental motion for summary judgment asserting in the alternative that French's sole remedy against it was in workers' compensation. In support of the motion, the Police Jury submitted excerpts from the depositions of French; Goodwin; Tommy Durrett, the Superintendent of the Police Jury; and Travis Kimp, an inmate supervisor for the Police Jury.

French argued in opposition to the motion that he was more akin to a volunteer than an employee of the Police Jury. French further argued that he never entered into an employment relationship, and there was no agreement as to hours worked, pay rate, or other usual employment concerns. In opposition to the motion, French submitted various exhibits including his affidavit and excerpts from his deposition, as well as Durrett's deposition and excerpts from the depositions of Kimp, Goodwin, and Eric Kennedy, another inmate supervisor for the Police Jury.

The trial court granted the Police Jury's motion for summary judgment on the basis that French's exclusive remedy was in workers' compensation because there was no genuine issue of material fact that he was an employee of the Police Jury. French appealed.

DISCUSSION

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880.

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

Because the workers' compensation statutes are in derogation of the universal right to sue for damages provided by La. C.C. art. 2315, the immunity provisions must be strictly construed. Smith v. Brown , 2011-1749 (La. App. 1 Cir. 8/15/12), 97 So.3d 1186, writ denied , 2012-2015 (La. 11/16/12), 102 So.3d 39.

La. R.S. 23:1044 states that "[a] person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter." See La. R.S. 23:1034 regarding the application of the workers' compensation provisions to public employees. This presumption, however, may be rebutted upon proof that there was no contract of employment, expressed or implied, between the alleged employee and the alleged employer. Young v. Royal Jones & Assocs. , 521 So.2d 798 (La. App. 2 Cir. 1988).

In support of its motion, the Police Jury did not submit any evidence of an employment contract between French and the Police Jury. Instead, the Police Jury asserted that the employment relationship is apparent when the relevant factors are considered.

When determining whether an employment relationship exists, the most important element to be considered is the right of control and supervision over the individual. Rogers v. Louisiana Dept. of Corr. , 43,000 (La. App. 2 Cir. 4/30/08), 982 So.2d 252, writ denied , 2008-1178 (La. 9/19/08), 992 So.2d 931. The factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages, and the power of control and dismissal. Id. No single factor is conclusive; instead, the totality of the circumstances must be considered. Cormier v. McNeese State Univ. , 2013-12 (La. App. 3 Cir. 11/13/13), 127 So.3d 66. The burden of proof is on the party seeking to establish an employer-employee relationship. Hillman v. Comm-Care, Inc. , 2001-1140 (La. 1/15/02), 805 So.2d 1157.

In Clinton v. Reigel By-Products, Inc. , 42,497 (La. App. 2 Cir. 9/19/07), 965 So.2d 1006, an inmate at the Caddo Correctional Center worked at the defendant's plant as part of a work-release program. Affirming the trial court's grant of the defendant's motion for summary judgment, this court ruled that the inmate was the defendant's employee for purposes of workers' compensation exclusivity because the defendant paid the inmate directly, the defendant supervised the inmate at the job site, and a work-release agreement considered the inmate to be an employee of the defendant.

In Reynolds v. Louisiana Plastic , 44,803 (La. App. 2 Cir. 10/28/09), 26 So.3d 149, writ denied , 2009-2805 (La. 3/5/10), 28 So.3d 1013, Reynolds, a work release inmate at the Ouachita Parish Correctional Center, was found to be an employee of Louisiana Plastic. This court noted that Louisiana Plastic controlled Reynolds' pay rate and the number of hours he worked, instructed him on how to do his job, and supervised him. Reynolds was also told about Louisiana Plastic's policies and procedures. A work release agreement executed between the company and the Ouachita Parish Sheriff identified Reynolds as an employee of Louisiana Plastic.

An inmate in a work release program was found to be a special employee of the facility where he worked in Rogers v. Louisiana Dept. of Corr. , supra . Rogers was a Department of Corrections inmate housed at the Webster Parish Jail. Labor Finders, an employment service which found temporary employment for work release inmates at area businesses, placed him at Springhill Pallet Company. Rogers was fatally injured when the forklift that he was driving tipped over. This court concluded that there was no genuine issue of material fact that Rogers was the special employee of Springhill. Springhill established that it controlled Rogers' activities while at the plant, had the power and authority to dismiss him, and furnished the place of employment and related equipment. Even though Rogers was paid through Labor Finders, the amounts that he was paid were based upon time sheets that were provided by Springhill. This court also noted that Rogers made no showing disputing those facts in opposition to the motion for summary judgment.

Selection and engagement of French

Goodwin explained that inmates filled out a request form in order to become a trusty. An inmate would be considered for trusty status only if he had a good disciplinary record. The inmates were evaluated to determine if they were qualified to work an outside job as a trusty.

The Police Jury used only inmates to operate the tractors while bush hogging. None of the inmates applied to work for the Police Jury, and the Police Jury had no input into which inmates were selected to work on the crew. Kennedy would call Warden Johnny Sumlin at the CPDC and let Sumlin know that he needed a specific number of tractor drivers. Kennedy, who would normally call a month in advance of needing the drivers, never requested more than six drivers. The CPDC would normally send trusties who already knew how to operate a tractor. The trusties would usually be screened before Kennedy called, but sometimes they were screened after tractor drivers were requested.

According to Goodwin, outside work for trusties from CPDC was not limited to the highway chipper crew. Some trusties worked for a couple of private employers as part of the Department of Corrections work release program. Others worked for the Town of Homer.

Payment of wages

LaSalle Management paid French $3 per week for his work on the crew. The same amount of money was paid by LaSalle to the CPDC trusties regardless of whether they worked on the crew or washed dishes at the CPDC, and this was the only compensation that the trusties received. If a trusty did not work, he would lose his trusty status and not get paid.

Neither Goodwin nor Tommy Durrett, the Superintendent for Claiborne Parish, knew if Claiborne Parish paid the Sheriff for the labor provided by the trusties. Goodwin did not know if the trusties assigned to the crew received a Form 1099 or W-2 from Claiborne Parish.

Power of dismissal

The Police Jury could dismiss a trusty from the crew if he was not performing his job or had an attitude problem. Sometimes it became clear during training that the trusty could not operate the tractor. A call would usually be placed to the CPDC to let them know a trusty was being difficult and needed to be picked up. In other instances, a trusty would be told by the Police Jury that he would not be returning to the crew.

French had a parole eligibility date of September 18, 2015, a good time release date of April 25, 2016, and a fulltime release date of September 20, 2021. Although French could have been transferred to a state correctional facility at any time, Goodwin would have expected French to serve out his sentence at the CPDC if he had not been injured. If a trusty is transferred, the CPDC selects a replacement.

Power of control

The Police Jury handled the transportation of the trusties between the CPDC and where they were working. The Police Jury had total control over the trusties from the time they were picked up until they were returned, and was completely responsible for supervising them while they worked as no deputies from the Claiborne Parish Sheriff's Office were supervising them at the time. While Kennedy, Kimp, and Durrett had taken a training course and were auxiliary deputies, they were not armed while with the trusties and lacked any defensive weapons or handcuffs. The CPDC would be called to handle any trusty who attempted to escape or was involved in a fight.

The Police Jury provided training to the trusties on how to operate the tractors for bush hogging. The Police Jury also furnished the place to work and equipment to be used. According to French, they would break for a lunch provided by the Police Jury on the side of the road.

French relies on Cormier v. McNeese State Univ. , 2013-12 (La. App. 3 Cir. 11/13/13), 127 So.3d 66, to support his contention that French was not an employee of the Police Jury. In that matter, the court of appeal found that the WCJ manifestly erred in finding that Cormier, a trusty at the Calcasieu Parish Correction Center who was injured while cleaning a tailgating area at McNeese State University, was an employee of the university. Under the terms of the trusty agreement between the university and the Calcasieu Parish Sheriff, the university was responsible for transporting the trusties to and from their work locations, providing lunch for the trusties, and ensuring that the trusties remained on university premises, did not possess contraband, and did not have contact with visitors while working. Cormier did not submit an application to the university; instead, the Sheriff's Office vetted Cormier through its application process, and then assigned Cormier to the group which worked at the university. The Sheriff determined the hours that the trusties would work. The trusties were in the university's custody and control from when they were picked up until they were returned. If the university was dissatisfied with a trusty's job performance, they would notify the Sheriff's Office and the trusty would be removed from that job. Other than using riding lawnmowers, the trusty performed the same tasks as compensated employees of the university who were working alongside them.

Cormier can be readily distinguished. Unlike Cormier, French received monetary compensation, albeit from LaSalle. On "regular detail" days, the university was responsible for transporting the trusties to and from the campus, and for supervising the trusties. However, there was a "special detail" on the day that Cormier was injured. On those days, the Sheriff's Department transported the trusties to the university, and a deputy stayed to prevent the trusties from leaving. The supervision of French and the other trusties on the crew was left up to the Police Jury. Another difference is that the Police Jury determined whether and for how long the trusties worked on a particular day. In Cormier , the Sheriff fixed the hours worked by the trusty.

The Police Jury exercised control in supervising, training, and dismissing the trusties that were selected by the CPDC to work on the highway chipper crew. Mindful that no single factor is conclusive and that the totality of the circumstances must be considered, we conclude that there is no disputed issue of material fact that French was an employee of the Police Jury.

French also contends that as a prisoner, he was not free to consent to employment with the Police Jury. In support of his argument, he cites Jones v. Houston Fire & Cas. Ins. Co. , 134 So.2d 377 (La. App. 3 Cir. 1961), and Turner v. Peerless Ins. Co. , 110 So.2d 807 (La. App. 1 Cir. 1959). The inmates in those cases were injured while performing compulsory labor at the state penitentiaries where they were serving their sentences. In contrast, we note that French volunteered to become a trusty and agreed to work on the crew. In fact, he testified that he recalled turning down a work release job that he had been offered.

Finally, French argues that he was akin to a volunteer for the Police Jury as he did not expect compensation from them. This argument is without merit. French received some monetary compensation for his toil, regardless of its source. Moreover, even when an individual does not receive compensation for services performed, that fact alone is not determinative of an employer-employee relationship. See Gotto v. ARA Living Center , 570 So.2d 1172 (La. App. 5 Cir. 1990), writs denied , 571 So. 2d 634 (La. 1990).

CONCLUSION

Based on the foregoing, we conclude that the trial court did not err in granting the Police Jury's motion for summary judgment. At French's costs, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before Moore, Pitman, Cox, Stephens, and McCallum, JJ.

Rehearing denied.

      Various cases have alternately used the "trustee" for the position held by Petitioner. However, our review of the Oxford English Dictionary indicates that "trusty" is the appropriate term.

      No paperwork was completed on behalf of the Police Jury when the inmates were assigned to it. According to Kennedy, French never entered into any kind of written agreement with the Parish to work on the right of way. Goodwin was unaware of any paperwork that a trusty signed to work on the highway chipper crew.

      La. R.S. 15:711 authorizes work release programs for certain inmates and specifies that the program is to be administered by the sheriff of the parish where the inmate is housed.

      A medical transfer to a Department of Corrections facility was made on June 12, 2014.

      La. C.C.P. art. 5188 allows costs to be assessed against an unsuccessful party who has been allowed to litigate without the payment of costs.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    SUCCESSION OF Lawrence Edmond WHITE, et al., Plaintiffs-Appellees v. Lester JONES, et al., Defendants-Appellants
    No. 52,166-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    THE LAW OFFICES OF SMITH & NWOKORIE, By: Brian Smith, Anselm N. Nwokorie, Counsel for Appellants
    THE NEWELL LAW FIRM, By: David M. Newell, Homer, Counsel for Appellees
    Before BROWN, PITMAN, and STONE, JJ.
   PITMAN, J.

Defendants Lester L. Jones and Ed White Sr., L.L.C. ("the LLC"), appeal a judgment which granted an injunction prohibiting them from entering or disturbing the house and other outbuildings constructed by Lawrence Edmond White ("LEW"), and currently occupied by heirs of his succession ("the succession"), on 160 acres of land owned by the LLC, until further order of the court. The judgment also recalled and vacated a judgment of eviction obtained by the LLC against the occupant of the house and outbuildings and granted the heirs of LEW the right to use, possess and occupy them until further order of the court. Although the judgment addressed other issues, they were not raised in this appeal. For the following reasons, we affirm the judgment of the trial court.

FACTS

Ed White, Sr., and his wife owned 160 acres of land in Claiborne Parish located in the NE ¼ of Section 16, Township 23N, Range 7W. After his death, his wife was recognized in his succession's judgment of possession, rendered in December 1953, as the owner of a ½ interest in the 160 acres, and his nine children were recognized as owning a 1/18 interest each.

Through various unestablished transactions, Claiborne Manor Nursing Home, Inc., acquired an interest in the property through a sheriff's deed dated December 15, 1999. After the nursing home acquired its interest in the property, 12 owners of the 160 acres created the LLC and each donated his interest in the 160 acres to the LLC. Although no cash exchanged hands, the transfers appear in a document entitled "cash deed" filed in the Claiborne Parish Conveyance Records on September 12, 2001, which stated that they were conveying their interest "together with all and singular improvements thereon and all rights thereunto belonging." Although the document is styled as a cash deed, the consideration for the transfer of ownership states it is made,

TO HAVE AND TO HOLD said described property unto said purchaser, its heirs and assigns forever.
This sale is made for the consideration of an ownership interest in ED WHITE, SR., L.L.C. proportionate to the interest owned in the land [.] (Emphasis added.)

Once the LLC was formed, it purchased the nursing home's interest in the 160 acres by cash deed dated September 25, 2001, to reconsolidate ownership in the family LLC. Jones was named as its manager. At the time of the creation of the LLC, all 12 of the transferees to the LLC were direct lineal descendants of Ed White, Sr. One of these transferees was LEW. He was the only transferee who lived on the 160 acres when the LLC was established and at the time he transferred his interest in the land in return for a 5.6 percent interest in the LLC and its assets. He reinforced his continuous possession and use of the land by improving the home in which he was living and by moving various other buildings, workshops, and storage units (collectively, "the buildings") on the land. None of the other members of the LLC or Jones ever challenged LEW's right to live on the property, and LEW never sought permission to do so since he had lived there for many years before and after the LLC was created.

When the LLC was created, LEW was not given an increased percentage in the LLC or additional compensation for the value of the buildings on the property. Those improvements were separately assessed to him by the Claiborne Parish Tax Assessor as owner until one week following his death on May 26, 2014. On June 2, 2014, Jones unilaterally directed the tax assessor to change the assessment of the buildings in the parish records from LEW to the LLC.

The land and buildings were appraised in 2016, and the total value was $440,000, with LEW's house being valued at $139,932, and the other buildings at $15,000, for a total of $154,932. The remaining value of $285,068 was attributed to the land. The value LEW had in the buildings at the time he made his transfer to the LLC was not established.

LEW's daughter, and administratrix of his succession, Audrey White Wiley, filed the succession in Claiborne Parish and alleged that LEW had three children, Audrey White Wiley, Margaret Ann White and Shaneque Sherill White. Following LEW's death, Audrey gave Margaret permission to occupy LEW's home. Although it is unclear, LEW's heirs believed they were entitled to occupy the home since it was their father's property, and so they put up a "No Trespassing" sign, but Jones believed the property had reverted to the LLC at LEW's death and, therefore, belonged to the LLC.

Jones began the process of evicting LEW's heirs from the property. In addition to having the tax assessor change the assessment to the LLC, he sent a demand letter to Audrey and Margaret stating that they had no right to be in their father's home despite the fact that all of his personal assets were there.

On July 8, 2014, Gwendolyn Livingston, a member of the LLC, filed a petition for eviction against the heirs of LEW. On August 28, 2014, Audrey received a judgment of eviction signed by a justice of the peace ("JOP") ordering delivery of the home on August 25, 2014. LEW's heirs claim they never received any notices pertaining to the eviction proceeding and did not appear at the hearing held before the JOP.

As a result of receipt of this judgment of the JOP, the succession filed this suit against Defendants. It claimed that during his lifetime, LEW was not advised that anyone was claiming ownership of the buildings and that the LLC did not pay him for them when it only gave him compensation of the 5.6 percent ownership in the LLC. Further, it claimed that the deed contained inadvertent language that did not identify what he was conveying as reflected by the fact that, thereafter, he was taxed 100 percent for the buildings. It also claimed that Jones's unilateral change in the tax assessment was fraudulently made without legal authority. It requested that the succession at least be compensated for the value of the buildings LEW had placed on the land. For these reasons, it prayed for review of the judgment of eviction from the JOP, for an injunction as to the relief granted by the JOP pending the trial on the merits, and that an injunction be issued prohibiting Jones and any member of the LLC from entering upon LEW's property, including all of his buildings, equipment and vehicles, and ordering them to return all assets they had already removed.

The succession filed a motion for partial summary judgment on the issue of whether the transfer to the LLC included the separate immovable buildings without further payment for them and whether extra consideration should be paid or the sale rescinded. It claimed that these issues could be determined by the trial court since there were no genuine issues of material fact as to the effect of the transaction from LEW to the LLC.

A hearing was set on the injunctive relief request for October 13, 2014; however, it was continued at Defendants' request. At a status conference in March 2017, the parties agreed that the full case and the succession's motion for summary judgment would be heard on March 16, 2017. On that date, the record was held open for Defendants to obtain and submit another appraisal or to evaluate the succession's appraisal; however, they never provided another appraisal, and the court considered the matter to be submitted for decision.

The trial court examined two succession records, those of Ed White, Sr., and LEW; 18 of the succession's exhibits; and 4 of Defendants' exhibits. At the trial, Jones testified that he never told LEW to move off the property in the years after the formation of the LLC. In a letter he wrote to the members of the LLC, dated April 8, 2004, he stated that the reason to establish the LLC as owner of the 160 acres was:

To secure, control and protect the property against unwanted intrusion or unwarranted threats to Family ownership without jeopardizing the personal obligations of the family.

In the same letter, he addressed the need for future LLC leadership and stated that LEW was the only family member who lived on the property and knew the conditions on the property.

After considering the evidence and applicable law, the trial court denied the succession's motion for summary judgment because there were genuine issues of material fact in dispute.

Further, the trial court recalled and vacated the judgment of eviction by the JOP and granted the succession's request for injunctive relief. It also concluded that LEW's heirs, or any one of them, could personally occupy and use the buildings as long as their use and occupancy were consistent with their father's and as long as the occupant(s) are exclusively in direct lineal descent of LEW. It noted that it found LEW was justified in believing the buildings were his separate property and that they did not convey with the land when it was transferred to the LLC.

The trial court's reasons for judgment state that although buildings are deemed component parts of land when they belong to the owner, the Louisiana Civil Code envisions that buildings on property of another can be separately owned by the builder if they are built with the landowner's consent. Its reasons also note that owners of separately owned buildings can file a document in the clerk of court's office in the parish in which the land lies to put third persons on notice that their buildings are separately owned. Co-owners do not have to be put on notice by documentation filed in the office of the clerk of court.

The trial court also found that LEW and the LLC were not co-owners of the property. It determined that LEW was the separate owner of the buildings on the land and that the LLC had full ownership of the land. Thus, it was necessary to determine if the LLC, as a third party, had given consent to LEW to maintain his buildings on its property. The trial court found that the LLC gave its implied consent to LEW to maintain his buildings. It further found that LEW's use and possession of the buildings was never disturbed by Jones or any of the LLC members from 2001, when the 12 people transferred their interests to the LLC, or thereafter, while LEW was alive. It found that it was not until after LEW's death that the LLC disturbed that exclusive use and possession by attempting to evict LEW's heirs. It stated that LEW had reason to consider himself to be the owner of the buildings located on the acreage he co-owned with the other 11 transferrors to the LLC.

The succession had made claims for rescission of the "cash deed" if the trial court should find that the transfer of the land also transferred the buildings. It also asked, alternatively, that it be reimbursed for the value of the buildings. The trial court denied the succession's request for damages for the cost of the buildings as premature because LEW had not filed the document asserting his separate ownership of them sufficient to give notice to the LLC that they were his. Likewise, it denied Defendants' claim asserting ownership of the buildings since they had failed to comply with La. C.C. art. 493. It further found that Jones's action in having the tax assessor change the title to the property to the LLC's name and in filing the petition for eviction were not sufficient actions to assert ownership of LEW's buildings. For these reasons, it denied any other relief sought by the parties.

Jones and the LLC have filed this appeal seeking review of the trial court's decision regarding ownership of the buildings on the property belonging to the LLC, which resulted in the recalling and vacating of the eviction and the issuance of the injunction, allowing the heirs of LEW to remain on the property.

DISCUSSION

Defendants argue that when LEW was living on the property, he deeded all of his interest, including all the buildings, to the LLC. They also argue that although LEW knew he was living on LLC property and had conveyed all his interest in the property to the LLC, he never filed an instrument in the registry of the appropriate conveyance or mortgage records of the parish in which the property was located to indicate his separate ownership of the buildings placed on the land. They further argue that the LLC operating agreement gave Jones the authority to evict LEW's daughter since LEW had signed the cash deed and transferred his ownership interest and improvements to the LLC. They assert that LEW always lived on the property as an heir of his father, and it was understood that he lived there "without authority or permission to live there." They contend that the LLC was formed as a result of the loss of ownership of the property to the nursing home and that the heirs of Ed White, Sr., formed the LLC to prevent such loss of ownership in the future. They claim that if LEW had transferred only his interest in the land, and not the buildings on the land, the purpose of formation of the LLC would have been defeated.

The succession argues that LEW separately owned the buildings and improvements on the property at the time of the 2001 transfer to the LLC. It admits that the deed states that the transfer incudes LEW's interest in the 160 acres, "together with all and singular improvements thereon and all rights thereunto belonging." However, it argues that if LEW's buildings were transferred in that deed, then LEW received no consideration for that transfer. The consideration of 5.6 percent interest in the LLC was totally insufficient to compensate him for the value of the buildings already on the land or for those placed there after the LLC was created.

The succession further argues that LEW's history on the property indicates that he believed he separately owned the buildings even though he transferred the land to the LLC, and evidenced by the facts that he lived there without challenge by any person who was a member of the LLC, that the taxes on the buildings alone were assessed entirely to him and not to the LLC, that the land was separately assessed to the LLC, and that it was not until after his death that the LLC took any action to indicate that it considered itself to be the owner of the buildings that were placed on the property with the LLC's apparent consent.

Defendants assert that the trial court erred in finding that LEW had not transferred ownership of the buildings when he signed the deed transferring his interest in the land "and improvements" to the LLC and in finding that he maintained separate ownership of these buildings, which rights of ownership were inherited by his children upon his death.

In the case of ambiguity in a contract, where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Campbell v. Melton , 01-2578 (La. 5/14/02), 817 So.2d 69 ; BRP LLC (Delaware) v. MC Louisiana Minerals LLC , 50,549 (La. App. 2 Cir. 5/18/16), 196 So.3d 37.

In the case at bar, the trial court had to make factual findings interpreting the contract by which LEW transferred to the LLC his interest in the 160 acres of land, which also contained the clause "with improvements." Despite the presence of that clause, it found that LEW did not receive any more compensation for his buildings on the land than did other LLC members who did not own any buildings, that he never received notice from the LLC members that they assumed the buildings had transferred with the deed to the land, and that the LLC did not pay the taxes on the buildings and only asserted ownership over the improvements after LEW's death. These are factual findings that are not to be disturbed unless manifest error is shown. We find no such manifest error and must proceed to review the trial court's application of the law in this case.

Tracts of land with their component parts are immovable. La. C.C. art. 462. Buildings and other constructions permanently attached to the ground are component parts of a tract of land when they belong to the owner of the ground. La. C.C. art. 463. Revision Comment (b) to La. C.C. art. 463 states that classification of buildings or other constructions as component parts of a tract of land does not determine the question of ownership of buildings and other constructions. That question is determined under the rules governing acquisition of ownership by juridical act, prescription or accession. Separate ownership may be asserted toward third persons when it is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located. La. C.C. art. 491.

The transfer or encumbrance of an immovable includes its component parts. La. C.C. art. 469. However, this is true only when they belong to the owner of the ground. They are not component parts of a tract of land when they belong to a person other than the owner of the ground. La. C.C. art. 463, Revision Comment (b).

In that portion of the Louisiana Civil Code that deals with modifications of ownership, art. 477 defines ownership as the right that confers on a person direct, immediate, and exclusive authority over a thing. Buildings and other constructions permanently attached to the ground made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent. La. C.C. art. 493 ; Town of Arcadia v. Arcadia Chamber of Commerce , 50,564 (La App. 2 Cir. 4/13/16), 195 So.3d 23.

After examining the law and the facts, the trial court concluded that LEW's buildings were his separate property, built on the land of the LLC with its permission. At the trial, Jones, the only witness, testified that LEW had always lived on the land prior to the formation of the LLC, no permission to live there was asked and none was given. The issue of whether he had permission to live there was never raised. There was obvious evidence of LEW's intention to occupy the property. He not only made improvements to the house, he also built other structures on the land. With no word coming from the manager of the LLC, or any of its members, LEW could presume implied consent to improve his separate property was given. For those reasons, the assignment of error regarding the interpretation of the cash deed and the non-transference of LEW's separate property is without merit, and the judgment vacating the eviction and issuing an injunction is affirmed.

CONCLUSION

The judgment of the trial court recalling and vacating the eviction previously rendered by the justice of the peace, and issuing an injunction prohibiting Defendants Lester L. Jones and Ed White, Sr., L.L.C. from interfering with the heirs' possession of the buildings owned by the Succession of Lawrence Edmond White, is affirmed. Costs of the appeal are assessed to Defendants, Lester L. Jones and Ed White, Sr., L.L.C.

AFFIRMED.


author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Paul Lynn MINNIEWEATHER, Appellant
    No. 52,124-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, New Orleans, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, JOHN PAUL SPIRES, STEPHEN T. SYLVESTER, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal by Paul Lynn Minnieweather arises from the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana. Minnieweather pled guilty as charged to two counts of attempted second degree murder, violations of La. R.S. 14:30.1 and La. R.S. 14:27. On each count, he was sentenced to 50 years at hard labor, without benefit of probation, parole, or suspension of sentence, to run concurrently and with credit for time served. Minnieweather now appeals his sentences. For the following reasons, we affirm his convictions and sentences.

FACTS

Minnieweather was indicted by a grand jury on two counts of attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. The indictment shows that Minnieweather was charged with attempting to kill Sherquarius Moore and Kenneth Brown on March 13, 2016. After the original indictments were made, Kenneth Brown died from the injuries sustained during the shooting.

Minnieweather appeared before the trial court and accepted the state's plea offer as follows. In exchange for Minnieweather's plea of guilty as charged on both counts, the state agreed not to upgrade the offense regarding Kenneth Brown to second degree murder. Additionally, the state recommended that the sentences be imposed to run concurrently. The sentences were otherwise left to the discretion of the trial court and Minnieweather was informed that the sentencing range was 10-50 years at hard labor, without benefit of probation, parole, or suspension of sentence.

The state provided the following factual basis for the plea. The victims, Moore and Brown, were married, but according to Minnieweather, he and Moore had an ongoing relationship. On March 13, 2016, Minnieweather approached the couple on a residential street in Bastrop, Louisiana. Brown was seated in his vehicle and Moore was nearby. Minnieweather shot Moore and Brown multiple times at close range. Moore survived the shooting and was able to identify Minnieweather as the shooter. Brown suffered two gunshot wounds to the neck, which rendered him a quadriplegic and left him unable to communicate. Minnieweather turned himself in to police and gave a voluntary statement admitting that he shot both victims. Minnieweather gave officers the murder weapon, and the state's ballistic testing matched the gun to the shootings.

Minnieweather confirmed to the trial court that he committed both shootings. Minnieweather stated that he had been in a relationship with Moore for four years, and he was hurt when he found Moore with Brown. Minnieweather admitted he shot the victims with a .40 caliber Smith and Wesson.

The trial court advised Minnieweather of his right to a jury trial and his right to confront and cross-examine his accusers. The trial court also advised Minnieweather he had a right to appeal his sentence. Minnieweather told the trial court he had an 18-year-old child; he had no prior felony convictions; and, he had previously been employed. The trial court found Minnieweather guilty of both counts of attempted second degree murder and ordered a presentence investigation ("PSI") report.

Minnieweather appeared for sentencing at a subsequent sentencing hearing. His trial counsel informed the trial court that after review of the PSI report, there were no objections. The trial court found that Minnieweather's criminal history, which included misdemeanor convictions for criminal damage to property and disturbing the peace by fighting, along with various arrests, was not particularly significant. The trial court observed that Minnieweather had no history of violence similar to the current offenses. However, the trial court found it significant in this case that Minnieweather shot two people and one of them died almost a year later as a result. The trial court stated that because Kenneth Brown's life was "irreparably altered as a result of the shooting" and he subsequently died, the trial court considered Minnieweather's action as "closer to a murder." The trial court noted that, as a result of the shooting, Brown had to live in assisted living until his death. The trial court observed that if Brown had not died or "had not been so grievously injured to the point that it permanently altered his life," the court's attitude regarding sentencing would not have found it needed to be "a more egregious or oppressive end of the sentence." The trial court also noted that Minnieweather shot Moore, his alleged girlfriend, eight times, and found that "apparently he meant to do it."

The trial court recognized that the applicable sentencing range was 10-50 years at hard labor, without benefit of probation, parole, or suspension of sentence. Minnieweather then apologized to the trial court for his actions. The trial court noted its review of the PSI and sentenced Minnieweather on each count of attempted second degree murder to 50 years at hard labor, without benefit of probation, parole, or suspension of sentence. The sentences were imposed to run concurrently. Minnieweather was given credit for time served and advised that he had two years from the finality of his convictions and sentences to seek post-conviction relief. Pending charges in a separate case were dismissed.

Minnieweather filed a timely motion to reconsider sentence and asserted that the trial court erred in considering Brown's death a factor in sentencing, because there was no evidence that Brown's death was caused by the gunshot wounds inflicted by Minnieweather. Minnieweather also complained that the trial court failed to adequately consider as mitigating facts that this was his first felony, he turned himself in, and he cooperated with law enforcement. Additionally, Minnieweather argued that the trial court did not sufficiently articulate the mitigating and aggravating circumstances considered for the record. Finally, Minnieweather asserted that he should have received a sentence similar to those persons convicted of manslaughter. The trial court denied the motion, and this appeal ensued.

DISCUSSION

Minnieweather brings only one assignment of error, arguing that the maximum and concurrent 50-year sentences imposed on each count are excessive under the circumstances of the case, and the trial court abused its discretion in sentencing. Specifically, he maintains the trial court found he was not a danger to the community, and he did not have a significant criminal history, yet it still sentenced him to the maximum sentence. Minnieweather also contends that the trial court did not adequately consider that he turned himself in, cooperated with law enforcement, and was remorseful. Minnieweather asserts the trial court was too focused on Brown's injuries and the fact that he eventually died. We disagree.

As stated, Minnieweather was convicted of two counts of attempted second degree murder for the shooting of Moore and Brown multiple times with a firearm, with the specific intent to kill them.

La. R.S. 14:30.1 ; La. R.S. 14:27. Whoever commits the crime of second degree murder is subject to a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Whoever attempts an offense punishable by life imprisonment shall be imprisoned at hard labor for not less than 10, nor more than 50 years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1)(a).

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. McGuire , 50,074 (La. App. 2 Cir. 9/30/15), 179 So.3d 632. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255, writ denied , 2016-2187 (La. 9/6/17), 224 So.3d 985. The defendant's personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matter over other matters. State v. Moton , 46,607 (La. App. 2 Cir. 9/21/11), 73 So.3d 503, writ denied , 2011-2288 (La. 3/30/12), 85 So.3d 113.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Modisette , 50,846 (La. 9/28/16), 207 So.3d 1108. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Modique , 50,413 (La. App. 2 Cir. 1/27/16), 186 So.3d 283, writ denied , 2016-0464 (La. 3/13/17), 216 So.3d 801 ; State v. Black , 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 1996-0836 (La. 9/20/96), 679 So.2d 430. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. Id. Further, a trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Bass , 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242, writ not cons. , 2018-0296 (La. 4/16/18), 239 So.3d 830. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Bass, supra .

A sentence can be constitutionally excessive, even when it falls within statutory guidelines, if (1) the punishment is so grossly disproportionate to the severity of the crime that when viewed in light of the harm done to society, it shocks the sense of justice; or, (2) it serves no purpose other than to needlessly inflict pain and suffering. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Fatheree , 46,686 (La. App. 2 Cir. 11/2/11), 77 So.3d 1047.

Finally, when two or more convictions arise from the same act or transaction, or constitute 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. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory; the trial court has discretion to run the sentences consecutively.

State v. Barnett , 46,303 (La. App. 2 Cir. 5/18/11), 70 So.3d 1, writ denied , 2011-1612 (La. 4/13/12), 85 So.3d 1239.

In this case, Minnieweather's imposed sentences fall within the statutory guidelines of 10-50 years. The trial court sentenced Minnieweather in conformity with the plea agreement, in which Minnieweather was informed that he was subject to a maximum sentence exposure of 50 years at hard labor without benefits, and with concurrent sentences. Minnieweather gained a substantial benefit in sentencing when he voluntarily pled guilty on both counts to avoid a potential life sentence and to receive concurrent sentences rather than consecutive sentences.

While the trial court's review of Minnieweather's personal information was minimal, the information was included in the PSI report, which the trial court stated had been reviewed prior to sentencing. The trial court's recognition of mitigating factors is found in its comments that Minnieweather did not have a significant history of criminal convictions or acts of violence, which led the trial court to conclude that Minnieweather was not a recurring danger to society and would not likely repeat his behavior.

Minnieweather's concurrent maximum sentences are supported by the factual basis provided by the state and agreed to by Minnieweather. Minnieweather's only explanation for his attempt to murder these two people was that he was "hurt" in finding them together. Without any warning or mercy, Minnieweather shot Moore and Brown multiple times, leaving Brown to suffer in a severely debilitated state for 12 months until he finally succumbed to his wounds. In light of these facts and considering the substantial reduction in sentencing exposure and the imposition of concurrent sentences, the maximum penalty assessed here for Minnieweather's actions does not shock the sense of justice and is not disproportionate to the harm caused these two victims. Minnieweather fails to show that the trial court abused its discretion or that that sentences imposed were constitutionally excessive.

Minnieweather argues that he was sentenced under an assumption or premise held by the trial court that all persons convicted of attempted second degree murder should receive the maximum sentence. However, this assertion is unsupported by the record. Review of the sentencing transcript reflects that the trial court was considering what circumstances would lead the court to impose a sentence less than the maximum for attempted second degree murder. In fact, the trial court characterized its musings as "a verbal handwringing." The trial court observed that Minnieweather's history did not suggest an automatic maximum sentence; however, the trial court concluded that given the severity of the harm Minnieweather inflicted on these victims, concurrent maximum sentences were warranted. Such a conclusion was certainly within the trial court's discretion. Minnieweather shot his victims multiple times. He obviously intended their deaths, and feeling "hurt" surely does not justify or lessen his motivation. The trial court's emphasis on the outcome for the victims, i.e. , Brown's quadriplegia and subsequent death and Moore being shot "a number of times," are not unreasonable considerations in sentencing this defendant. As related by Brown's mother and seen in the PSI, Brown suffered greatly before he died: "He couldn't drink, couldn't eat, and couldn't do anything for himself. He had to have constant care .... He went from [working fulltime] to being hooked up to machines constantly .... The bullet in his neck shattered his vertebrae." Further, the record does not indicate that the trial court had any preconceived notions regarding Minnieweather's sentence, but considered the facts of his particular crime, which facts certainly support a maximum sentence.

Finally, we note that prior to taking Minnieweather's guilty plea, the trial court did not advise Minnieweather of his right against self-incrimination, as required pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969) and La. C. Cr. P. art. 556.1. A guilty plea is not considered free and voluntary unless, at a minimum, the defendant is advised of his constitutional right against self-incrimination, his right to a trial by jury, and his right to confront his accusers. Boykin v. Alabama, supra; State v. Guzman, 1999-1753 (La. 5/16/00), 769 So.2d 1158 ; State v. Kennedy , 42,850 (La. App. 2 Cir. 1/9/08), 974 So.2d 203. An express waiver of these three constitutional rights must be made and a waiver cannot be presumed. State v. Russell , 46,426 (La. App. 2 Cir. 8/17/11), 73 So.3d 991, writ denied , 2011-2020 (La. 2/10/12), 82 So.3d 270 ; State v. Gay , 48,832 (La. App. 2 Cir. 2/26/14), 136 So.3d 919, writ denied , 2014-0605 (La. 10/24/14), 151 So.3d 600. While no specific articulation of the defendant's rights is required, the core concept of the rights must be conveyed. Id.

The trial court has a duty to advise the defendant of these constitutional rights and other rights, which are listed in La. C. Cr. P. art. 556.1, prior to accepting a guilty plea. However, deficiencies in the plea colloquy requirements specified by La. C. Cr. P. art. 556.1 are not subject to error patent review, and absent a defense assignment of error, the trial court's failure to inform the defendant of his rights is not reviewable on appeal. La. C. Cr. P. art. 920 ; State v. Robinson , 2006-1406 (La. 12/8/06), 943 So.2d 371. Furthermore, the courts have recognized that a defendant may wish to retain the benefits of a plea agreement and therefore not challenge a defect in the Boykin plea colloquy. See State v. Jones , 1999-2207 (La. 1/29/01), 778 So.2d 1131 ; State v. Reynolds , 1998-2281 (La. 4/16/99), 733 So.2d 1191.

Because the record is void of any evidence that Minnieweather was informed of, and waived, his constitutional right against self-incrimination, Minnieweather's guilty is plea is constitutionally invalid. However, neither Minnieweather nor his appellate attorney raised this defect on appeal and we conclude that Minnieweather does not wish to disturb the benefits of his plea agreement.

CONCLUSION

Thus, for the foregoing reasons, the convictions and sentences of Paul Lynn Minnieweather are affirmed.

AFFIRMED.

      Brown remained incapacitated and institutionalized until his subsequent death in March 2017. According to the state, the autopsy report concluded that Brown's death was caused by the two gunshot wounds, because those wounds fractured Brown's spinal cord and left him a quadriplegic, leading to pneumonia and sepsis, then his death.


author: WILLIAMS, J.

text:
    Stephen Louis TARBUTTON, Plaintiff-Appellee v. Breanna Danielle TARBUTTON, Defendant-Appellant
    No. 52,102-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    BREANNA DANIELLE TARBUTTON, Appellant In Proper Person
    SHELLEY A. GOFF, Ruston, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STEPHENS, JJ.
   WILLIAMS, J.

Breanna Tarbutton appeals a judgment awarding her $63.40 per month in interim and final spousal support until the homeschooling of the children ends or the oldest child's 18th birthday. The trial court denied Breanna's ex parte motion for a continuance and found that Stephen Tarbutton should continue paying the amount of the monthly premium of Breanna's auto insurance as spousal support. For the following reasons, we amend the judgment and affirm as amended.

FACTS

After the parties were divorced in April 2016, a hearing was scheduled on Breanna's request that Stephen's visitation with their two children be supervised and that she receive spousal support. At the hearing, Breanna sought a continuance to allow her time to obtain a new attorney. At the rescheduled hearing in September 2016, Breanna again appeared without counsel and sought another continuance, which was denied by the district court. After testimony by Breanna and Stephen, the court denied her requests for spousal support and supervised visitation. The district court awarded the parties joint custody with daily visitation by Stephen to participate in the homeschooling of the children, alternating weeks in the summer and holidays. Breanna appealed the denial of spousal support and the award of joint custody. On appeal, this court reversed that part of the judgment denying spousal support and remanded the matter. Tarbutton v. Tarbutton , 51,486 (La. App. 2 Cir. 5/2/17), 217 So.3d 1281.

On remand, the parties were ordered to file affidavits of income and expenses. At the hearing, Breanna appeared and sought a continuance, which was granted. The trial court reset the hearing for September 21, 2017, without any objection by Breanna. On September 20, 2017, Breanna filed an ex parte motion for continuance alleging that September 21 was Rosh Hashanah, a day of religious observance for her. The district court staff contacted Breanna and told her that she would need to appear at the hearing unless Stephen agreed to a continuance. The next day, Breanna failed to appear at the hearing and did not send any further communication to the court. Stephen's attorney informed the court that her office had been contacted by Breanna seeking consent to the continuance, but she was informed that Stephen would not agree. The trial court proceeded with the hearing, denying the motion to continue.

Stephen's affidavit of income and expenses was admitted into evidence and he testified about his knowledge of the mobile home situation. Stephen stated that Breanna was living with their children in a mobile home that had been purchased for her use and located on land that he had inherited from his father. He explained that she was living in the home without paying rent and he supplied water, but she paid the other utilities. Stephen testified that he had agreed that Breanna could keep the mobile home as her property, but she would need to remove the home from the land after the youngest child turned 18 years old or pay rent. Stephen stated that he was not aware that Breanna observed Rosh Hashanah.

In written reasons for judgment, the trial court stated that because Breanna did not appear and could not be questioned about her financial affidavit, the document had not been introduced into evidence and was not considered in the determination of spousal support. Instead, the trial court considered Breanna's testimony about her income and expenses admitted into evidence at the prior hearing in September 2016. The court noted that Stephen had been paying Breanna's monthly auto insurance premium of $63.40 and found that her earning capacity would be sufficient to meet her expenses if she were not homeschooling the children. The trial court rendered judgment awarding Breanna the amount of $63.40 per month as interim and final spousal support until the homeschooling of the two children ends or the oldest child turns 18 years of age, whichever occurred first. Breanna appeals the judgment.

DISCUSSION

Breanna contends the trial court erred in denying her motion for continuance. She argues that the court's denial of the continuance violated her constitutional rights to the free exercise of religion because the hearing was scheduled for the date of Rosh Hashanah, a day of religious observance for her.

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. The trial court must consider the particular facts in each case in deciding whether to grant or deny a continuance. Some factors to consider are diligence, good faith and reasonable grounds. Connor v. Scroggs , 35,521 (La. App. 2 Cir. 6/12/02), 821 So.2d 542. Equally important is the other party's corollary right to have his case heard as soon as is practicable. The trial judge may also weigh the condition of the court docket, fairness to the parties and other litigants before the court and the need for orderly and prompt administration of justice. A trial judge is vested with wide discretion in granting or denying a continuance and the ruling will not be disturbed on appeal in the absence of clear abuse. Tarbutton, supra ; Connor, supra .

Pursuant to the First Amendment of the United States Constitution and Art. I, Sec. 8 of the Louisiana Constitution, no law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof. Not all burdens on religion are unconstitutional and the court may consider important governmental interests in assessing a limitation of a party's First Amendment rights. State v. Victor , 15-339 (La. App. 5 Cir. 5/26/16), 195 So.3d 128.

In this case, contrary to Breanna's contention in her brief that the trial court could have granted her ex parte motion without Stephen's consent, La. C.C.P. art. 1605 provides that all contested motions for continuance require a contradictory hearing. It was Breanna's delay in filing her motion that required the hearing on the continuance to be held on the asserted holy day. In addition, Breanna's claim that she was unable to file her motion sooner because of "confusion" about the date of the holy day is not plausible, since she could have consulted a calendar or a religious official to determine the date well before the afternoon prior to the hearing which had been scheduled two months earlier.

In support of her position, Breanna cites the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. Sec. 2000bb, et seq. , which provides that the government shall not substantially burden a person's exercise of religion. The record shows that in considering the motion for continuance, the trial court weighed Breanna's religious concerns and her delay in requesting a continuance with Stephen's interest in proceeding with the scheduled hearing and the efficient administration of justice. Based upon the circumstances of this case, we cannot say the trial court abused its discretion in denying the ex parte motion for continuance. Thus, the assignment of error lacks merit.

Breanna contends the trial court erred in considering testimony from the opposing party regarding her religious beliefs. Breanna argues that she was prejudiced by the court's act of hearing testimony in her absence because she did not have the opportunity to cross-examine the witness or present rebuttal evidence.

Preliminary questions concerning the competency of a person to be a witness or the admissibility of evidence shall be determined by the court. La. C.E. art. 104. Every person of proper understanding is competent to be a witness. La. C.E. art. 601. The plaintiff in a civil case shall have the right to rebut evidence adduced by her opponent. La. C.E. art. 611(E).

In the present case, although Breanna refers to the confrontation clause of the Sixth Amendment to the United States Constitution, we note that the Sixth Amendment gives a right of confrontation to defendants in criminal prosecutions, not to parties in civil actions such as this case. See Austin v. United States , 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Breanna has not shown that Stephen was not a competent witness to testify about matters within his personal knowledge. Regarding a question about Breanna's religious beliefs, Stephen responded that he did not know if she observed Rosh Hashanah. Breanna did not have an opportunity to cross-examine the witness or present rebuttal evidence because she failed to appear at the hearing even though she had been given notice of the hearing date and informed that her motion for continuance would not be granted before the hearing. Based upon this record, we cannot say the trial court erred in considering the witness testimony presented at the hearing. The assignment of error lacks merit.

Breanna contends the trial court erred in failing to consider the affidavit of expenses which she provided to the court. She argues that the award of spousal support is inadequate because her need exceeds the amount of the monthly insurance premium.

A spouse may be awarded final periodic support when she has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay. La. C.C. art. 112(A). The court shall consider all relevant factors in determining the amount and duration of final support, including: (1) the income and means of the parties; (2) the financial obligations of the parties; (3) the parties' earning capacity; (4) the effect of custody of children on a party's earning capacity; (5) the time necessary for the claimant to acquire appropriate education or employment; and (6) the duration of the marriage. La. C.C. art. 112( C).

The affidavits of income and expenses constitute hearsay because the affidavits are offered for the truth of their content and made out of court by a person not subject to cross-examination. Presenting statements in the form of an affidavit does not prevent the evidence from being hearsay. Bailes v. U.S. Fidelity & Guaranty Co. , 512 So.2d 633 (La. App. 2 Cir. 1987).

In this case, the trial court excluded Breanna's affidavit from evidence as hearsay because she did not appear and was not subject to cross-examination. Even though Breanna had submitted an affidavit of income and expenses as instructed by the trial court, a purpose of the scheduled hearing was to give the other party an opportunity to question her about the specific items listed in the affidavit. Breanna's absence from the hearing meant that Stephen could not ask her to explain certain expenses and, as a consequence, the trial court did not err in declining to admit her affidavit into evidence.

In making a determination of spousal support without the affidavit, the court considered Breanna's prior testimony at the September 2016 hearing. At that time, Breanna testified that she had completed a dental assistant course, but her last job was in 2007 waiting tables and that she was living with her children in a mobile home that she owned and was not paying rent. Breanna stated that she and each child received Social Security benefits of $274 per month as a result of Stephen's disability and that her expenses were approximately equal to her income. She testified that her vehicle was paid for and that Stephen had previously paid the monthly auto insurance premium. Stephen's affidavit of income and expenses shows income from Social Security disability payments of $1,541 per month and expenses of $987.68 per month. Stephen acknowledged that he had previously paid the auto insurance premium of $63.40 per month for Breanna's vehicle.

The evidence presented supports the trial court's finding that Breanna's earning capacity would be sufficient to meet her needs if she were not homeschooling her teenage sons. Based upon our review of this record, we cannot say the trial court abused its discretion in awarding $63.40 per month as final periodic spousal support. Thus, the assignment of error lacks merit.

Breanna contends the trial court erred in ordering that spousal support would terminate when the oldest child turns 18 years old. She argues the spousal support should not end while she is caring for a minor child in the home.

The trial court has great discretion in awarding final periodic support to a party not at fault. The trial court's determination of the amount and duration of spousal support will not be disturbed absent an abuse of discretion. Brown v. Brown , 50,833 (La. App. 2 Cir. 8/10/16), 200 So.3d 887. The duration of an award of spousal support primarily involves the length of time the recipient requires to secure employment that will meet her needs. Voyles v. Voyles , 2004-1667 (La. App. 3 Cir. 5/4/05), 901 So.2d 1204, writ denied , 2005-1270 (La. 12/9/05), 916 So.2d 1059.

In this case, the record shows that Breanna has obtained a GED and training as a dental assistant. She has not demonstrated that the trial court's time limit for spousal support provides her with an insufficient time period in which to secure some type of employment even with a minor child remaining in the household. We note that under La. C.C. art. 114, a party may seek to modify or extend the award of spousal support by showing a material change in circumstances. Based upon this record, we cannot say the trial court abused its discretion in limiting the duration of the spousal support award. The assignment of error lacks merit.

Breanna contends the trial court erred in failing to render judgment concerning the ownership of the mobile home where Breanna is living with the children and the issue of assistance with education costs. She argues that she should not need to move the home because Stephen verbally agreed to give Breanna the mobile home as well as the land on which it is located.

We first note that contrary to Breanna's representation in her appellate brief, there is no evidence that Stephen agreed to transfer land for the mobile home to Breanna. At the hearings in 2016 and 2017, Stephen testified without contradiction that he had agreed Breanna can keep the mobile home as her property and continue to leave the home on his land free of rent, but she will need to move the home after their youngest child turns 18 years of age. The record does not contain evidence of any other agreement. If Breanna believes she has a claim to the land either as community property or by some other agreement, then she will need to file a separate action to establish the validity of such a claim.

Although the trial court states in the reasons for judgment that Breanna is the owner of the mobile home and that Stephen has agreed to allow her to keep the home on his land without paying rent until both children attain 18 years of age, the judgment is silent regarding that situation. Consequently, we shall amend the judgment to recognize Breanna as the owner of the mobile home with the right to remain in the current location until the youngest child is 18 years old and to instruct Stephen to file in the record documentation showing that title to the mobile home has been transferred to Breanna.

Regarding the homeschool costs, we note that expenses necessary for the support of children are included in the child support obligation. La. R.S. 9:315. The record shows that Breanna receives payments of $274 per month for each child through Stephen's Social Security disability benefits. To the extent that Breanna asserts that these monthly payments for each child are not sufficient to meet their educational needs, she should seek an additional amount for child support. Because Breanna has not made a judicial demand for child support, that issue was not before the district court for a determination. Thus, the issue cannot be addressed by this court.

CONCLUSION

For the foregoing reasons, the trial court's judgment is hereby amended to recognize Breanna Tarbutton as the owner of the mobile home with the right to remain in the current location until the parties' youngest child is 18 years old. In addition, Stephen Tarbutton is instructed to file in the record documentation establishing that title to the mobile home has been transferred to Breanna Tarbutton. The judgment is otherwise affirmed. Costs of this appeal are assessed one-half to the appellant, Breanna Tarbutton, and one-half to the appellee, Stephen Tarbutton.

AMENDED AND AFFIRMED AS AMENDED.


author: GRAVOIS, J.

text:
    Dexter JOHNSON v. Tomika CLOFER
    NO. 18-CA-119
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, DEXTER JOHNSON, Rachel L. Moss
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   GRAVOIS, J.

Plaintiff/appellant, Dexter Johnson, appeals the trial court's October 26, 2017 judgment which established custody and visitation of his minor twin children. For the following reasons, because the record contains inadequate information, we vacate the portion of the trial court's judgment that named defendant/appellee, Tomika Clofer, the twins' mother, as domiciliary parent, and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 4, 2017, Dexter Johnson filed a "Petition to Establish Filiation, Custody and Visitation" on behalf of Tiarrah Johnson and Tyrann Johnson, twins born on June 24, 2014. Tomika Clofer, the twins' mother, was made the respondent. In his petition, Mr. Johnson stated that he is named as the twins' father on their birth certificates, and that since the twins' birth, he and Ms. Clofer have "openly, publicly and expressly acknowledged" that he is their natural father. As such, he prayed to be filiated in the eyes of the law. He further noted that he has been an integral part of the twins' lives since their birth, has provided financially for them, and has them on his insurance plan. He stated that he is current on his monthly child support obligation. Mr. Johnson prayed that he be granted shared custody and the right to take the tax dependency exemption on the twins each year.

The matter came on for a hearing on September 22, 2017. Ms. Clofer was not present for the hearing. At the hearing, Mr. Johnson testified that he has spent time with the twins since their birth, including "extended time." He stated that the twins would come over and spend the night "every so often," and this included them staying more than one day consecutively with him. According to Mr. Johnson, at times Ms. Clofer would "keep the kids away from [him]." Mr. Johnson testified that he is familiar with the twins' educational and physical needs and pays 82% of their child support obligation. He currently lives with his wife five miles from the twins. He testified that he last saw the twins three weeks prior to the hearing. Mr. Johnson submitted as evidence a proposed parenting plan in which he noted that the parties had agreed to maintain joint legal custody of the twins and to a 3-3-4-4 shared physical custody schedule.

By judgment dated October 26, 2017, the trial court found Mr. Johnson to be the legal and natural father of the twins. The trial court awarded custody of the twins to the parties, jointly, and designated Ms. Clofer as the primary domiciliary parent. Additionally, a detailed visitation schedule was established. Mr. Johnson was granted visitation every other weekend and for two consecutive weeks in June and July for vacation purposes. The parties would share holidays as detailed in the judgment. The trial court denied Mr. Johnson's request to have the tax dependency exemption on the twins each year. The trial court noted that the provisions of La. R.S. 9:315.18(B)(1)(b) had not been established, but upon a proper showing, Mr. Johnson would be entitled to claim the tax dependency in alternating years.

On November 9, 2017, Mr. Johnson filed a motion for a new trial, asserting that the trial court's findings were contrary to the law and to the only evidence introduced at the hearing. Following a hearing on December 22, 2017, the trial judge orally denied the motion for a new trial. In her oral reasons for judgment, the trial judge stated that nothing from Ms. Clofer was considered in rendering her judgment since she had arrived after the case had already concluded. The trial judge stated that she had considered all the evidence and testimony presented. Specifically, the court noted that it considered the age of the children, Mr. Johnson's testimony about his time spent with the children, and the fact that Mr. Johnson was asking for 50/50 custody and Ms. Clofer was not there to present evidence. Based on the evidence submitted, the trial court found that the parenting plan submitted by Mr. Johnson was not in the best interest of the children.

Mr. Johnson filed a motion to appeal the judgments of October 26, 2017 and December 22, 2017. This appeal followed.

LAW AND ANALYSIS

On appeal, Mr. Johnson argues that the trial court abused its discretion in designating Ms. Clofer as the primary domiciliary parent based on the evidence presented. Mr. Johnson argues that, considering the best interest factors of La. C.C. art. 134, there was no evidence nor testimony presented regarding: Ms. Clofer's moral fitness as it affects the welfare of the children; the adequateness and stability of the home environment of Ms. Clofer; and the capacity and disposition of Ms. Clofer to give the twins love, affection, and spiritual guidance and to continue the education and rearing of the children. Further, Mr. Johnson argues that as a matter of law, the trial court erred in disregarding the unchallenged testimony and evidence he presented.

In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. La. C.C. art. 134 sets out 12 non-exclusive factors for the court to consider in awarding custody:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Robertson v. Robertson , 10-926 (La. App. 5 Cir. 4/26/11), 64 So.3d 354, 363 ; Robert v. Robert , 44,528 (La. App. 2 Cir. 8/19/09), 17 So.3d 1050, 1052, writ denied , 09-2036 (La. 10/7/09), 19 So.3d 1. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Robertson , supra . Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the children. Robertson , supra ; Harvey v. Harvey , 13-81 (La. App. 3 Cir. 6/5/13), 133 So.3d 1, 3, writ denied , 13-1600 (La. 7/22/13), 119 So.3d 596. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Martin v. Martin , 11-1496 (La. App. 3 Cir. 5/16/12), 89 So.3d 526, 528 ; Bridges v. Bridges , 09-742 (La. App. 5 Cir. 2/9/10), 33 So.3d 914, 918.

In the instant case, though it appears that the twins have resided mainly with Ms. Clofer, the record is void of any other information about Ms. Clofer. The record contains no evidence or testimony necessary to consider numerous factors about Ms. Clofer, including: the moral fitness of Ms. Clofer; Ms. Clofer's mental and physical health; the love affection and other emotional ties between Ms. Clofer and the twins; and Ms. Clofer's capacity to give the twins love, affection, spiritual guidance, and to provide food, clothing, medical care, and other material needs. Thus, we find insufficient evidence was presented concerning the best interest of the children, and accordingly, the trial court abused its discretion in naming Ms. Clofer as domiciliary parent.

CONCLUSION

For the foregoing reasons, because the record contains inadequate information, we vacate the portion of the trial court's judgment which named Tomika Clofer, the twins' mother, as domiciliary parent, and remand the matter to the trial court for further proceedings.

JUDGMENT VACATED IN PART; REMANDED

      Mr. Johnson also appeals the trial court's December 22, 2017 denial of his motion for a new trial concerning the trial court's October 26, 2017 judgment.

      Ms. Clofer did not file any objection to the petition.

      The judgment on the matter notes that Ms. Clofer appeared later in the morning after the matter had been submitted and after Mr. Johnson had left.

      There is no signed judgment denying the motion for a new trial.

      See Byrd v. Byrd , 621 So.2d 124, 127 (La. App. 2d Cir. 1993), in a different procedural but somewhat similar factual situation with respect to sufficiency of the evidence presented, the court found that the default judgment awarding custody and support in this domestic case was "unsubstantiated by the record." The court specifically found that there was "insufficient evidence concerning the 'best interest of the child' ...." Thus, because the record contained "inadequate information," the court found it necessary to remand the matter to the trial court for a determination of child custody.


author: MOORE, J.

text:
    Tammy BLOXHAM and Christopher Ogden, Plaintiff-Appellees v. HDI-GERLING AMERICA INSURANCE COMPANY, 31 Energy Services, LLC, and Andy L. Gibbs, Jr., Defendant-Appellants
    No. 52,177-CA
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2018
    COOK, YANCEY, KING & GALLOWAY, By: Brian A. Homza, Robert Kennedy, Jr., Jena Bourgeois Hogan, Shreveport, Counsel for Appellants
    MORRIS, DEWETT & SAVOIE, LLC, By: B. Trey Morris, G. Adam Savoie, Meagan E. Shadinger, Shreveport, Counsel for Appellee, Tammy Bloxham
    CHRISTOPHER A. OGDEN, In Proper Person
    Before MOORE, STONE, and STEPHENS, JJ.
   MOORE, J.

The defendants, Andy L. Gibbs Jr., his employer, 31 Energy Services LLC, and the employer's insurer, HDI-Gerling America, appeal a partial summary judgment in favor of the plaintiff, Tammy Bloxham, on the issue of liability only, in this tort suit arising from a rear-end collision. For the reasons expressed, we reverse and remand.

FACTS

The accident occurred on May 18, 2015, in Bossier City. Ms. Bloxham was driving her Honda Pilot west on Hwy. 511 (Jimmie Davis Hwy.). She alleged that she stopped at the red light at Sunflower Blvd., and was in the left lane when she was struck from behind by Gibbs, who was driving 31 Energy's Freightliner tractor and Dragon tanker trailer.

Ms. Bloxham filed this suit in March 2016, individually and on behalf of her minor son. In addition to vicarious liability, Ms. Bloxham alleged that 31 Energy was negligent in hiring Gibbs and in failing to inspect the brakes on its rig. The defendants answered asserting plaintiff fault, and requested a jury trial. The defendants filed a motion for summary judgment on grounds that Ms. Bloxham failed to report this claim as an asset in her pending bankruptcy case, and both sides have engaged in vigorous discovery, but these issues are not currently before the court.

In August 2017, Ms. Bloxham filed the instant motion for partial summary judgment as to Gibbs's liability and her own lack of comparative fault. She cited Louisiana's "following too close" law, La. R.S. 32:81 A, and the presumption of negligence when a following vehicle rear-ends another vehicle, Brewer v. J.B. Hunt Transp. Inc. , 2009-1408 (La. 3/16/10), 35 So.3d 230. She attached Gibbs's deposition, in which he admitted he "ran into the back of this car" and that he was "not blaming anybody but" himself, and the deposition of Gibbs's supervisor, Mike Cummings, who agreed with Gibbs's statement. She argued that the defendants would not be able to allege any facts that would support a showing that she was at fault, La. C. C. P. art. 966 D(1).

The defendants opposed the motion. In support, they cited another portion of Gibbs's deposition: he admitted he would not be able to stop in time to avoid hitting the car in front of him, so he tried to move to the other lane, "and when I swerved over to change lanes it looked like she tried to change too, but I bumped the back of her car." The defendants also cited the incident form Gibbs filled out for 31 Energy: "I swerved to miss her[;] she got in the same lane and I Bumped [her] car[,]" and the official state crash report: "The vehicles in front of him stopped suddenly and he could not stop fast enough to keep from hitting Vehicle # 1." The defendants argued that Ms. Bloxham's attempted lane change and sudden stop rebutted the presumption of Gibbs's negligence, Robinson v. Flowers , 41,798 (La. App. 2 Cir. 1/24/07), 949 So.2d 549. They submitted that this evidence created a genuine issue that she was comparatively negligent, thus precluding summary judgment.

ACTION OF THE DISTRICT COURT

After a hearing on September 25, 2017, the district court granted Ms. Bloxham's motion for partial summary judgment. The court cited R.S. 32:81 and the "bright-line presumption" of the following driver's negligence, Mart v. Hill , 505 So.2d 1120 (La. 1987), found that Gibbs was the rear-following driver who struck the back of Ms. Bloxham's SUV, and accepted Gibbs's admission that he was the sole cause of the accident. The court recognized the exception to R.S. 32:81, but reasoned that if both Ms. Bloxham and Gibbs were changing lanes at the same time, "the tailing vehicle * * * had a duty to watch for any lead vehicles and operate his vehicle safely," which he failed to do. The court concluded that Ms. Bloxham did not create a hazardous or unavoidable situation by changing lanes, and Gibbs failed to operate his rig in a safe and controlled manner so as to avoid the collision.

The defendants applied for a writ, which this court granted for the purpose of perfecting as an appeal.

APPLICABLE LAW

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002 ; Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, La. C. C. P. art. 966 A(3). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C. C. P. art. 966 A(2). Although summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish Sch. Bd. , 2006-2862 (La. 6/29/07), 959 So.2d 884. The district court cannot make credibility calls on a motion for summary judgment, but must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Independent Fire Ins. Co. v. Sunbeam Corp. , 99-2257 (La. 2/29/00), 755 So.2d 226 ; Tatum v. Shroff , 49,518 (La. App. 2 Cir. 11/19/14), 153 So.3d 561.

A fact is material if it "potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute," Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764. Stated another way, a "material fact" is one in which its "existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery," Samaha v. Rau , supra . A "genuine issue" is a triable issue, an issue on which reasonable persons could disagree. Champagne v. Ward , 2003-3211 (La. 1/19/05), 893 So.2d 773.

A grant of summary judgment is reviewed de novo, with the appellate court applying the same criteria that govern the district court's decision to grant or deny, namely, whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Rodgers v. State Farm Mutual Auto. Ins. , 2015-0868 (La. 6/30/15), 168 So.3d 375.

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. La. R.S. 32:81 A; Brewer v. J.B. Hunt Transp. , supra . A presumption of negligence generally arises when a following motorist is involved in a rear-end collision. Mart v. Hill , supra . The following motorist, however, may rebut the presumption by establishing the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not have reasonably anticipated. Cheairs v. State , 2003-0680 (La. 12/3/03), 861 So.2d 536. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. La. R.S. 32:79 ; Brewer v. J.B. Hunt Transp. , supra . A driver changing lanes may be comparatively at fault if she is rear-ended. Brewer v. J.B. Hunt Transp. , supra ; Mart v. Hill , supra ; Greene v. Lovisa , 16-660 (La. App. 5 Cir. 5/17/17), 221 So.3d 270, writ denied , 2017-1017 (La. 10/9/17), 227 So.3d 837.

DISCUSSION

The defendants urge the district court erred in granting partial summary judgment because (1) the evidence created a genuine issue of material fact as to whether Ms. Bloxham was partly at fault, (2) the court impermissibly made credibility calls and weighed evidence to allocate fault, and (3) the court impermissibly made credibility calls and weighed evidence to make factual findings on the motion for summary judgment. They argue that courts must construe factual inferences in favor of the party opposing the motion, Willis v. Medders , 2000-2507 (La. 12/8/00), 775 So.2d 1049.

Specifically, they argue that comparative fault must be assessed even if a presumption of negligence applies, and several cases have found lead drivers comparatively at fault in rear-end collisions, Matherne v. Lorraine , 2003-2369 (La. App. 1 Cir. 9/17/04), 888 So.2d 244 ; Boggs v. Voss , 31,965 (La. App. 2 Cir. 6/16/99), 741 So.2d 139 ; Graffia v. Louisiana Farm Bureau Ins. Co. , 2008-1480 (La. App. 1 Cir. 2/13/09), 6 So.3d 270 ; Hopstetter v. Nichols , 98-185 (La. App. 5 Cir. 7/28/98), 716 So.2d 458, writ denied , 98-2288 (La. 11/13/98), 731 So.2d 263. They especially urge that a driver changing lanes on a multilane highway owes a duty to determine that she can do so "without endangering normal overtaking or oncoming traffic," Daigle v. Mumphrey , 96-1891 (La. App. 4 Cir. 3/12/97), 691 So.2d 260 ; Anthony v. State Farm Mut. Ins. Co. , 227 So.2d 180, 183 (La. App. 2 Cir. 1969). They submit that Ms. Bloxham "could be" partly responsible for changing lanes just before the accident. They also elaborate that the district court could not evaluate Gibbs's credibility on the motion for summary judgment.

Ms. Bloxham responds that the court exercised "reasonable discretion" in granting partial summary judgment, given Gibbs's admission that he was "not blaming anybody but" himself and Cummings's adoption of it. She contends that it is perfectly appropriate for the trial court to render a partial summary judgment against a rear-ending driver despite that driver's allegation of comparative fault, as in Ebarb v. Matlock , 46,243 (La. App. 2 Cir. 5/18/11), 69 So.3d 516, writ denied , 2011-1272 (La. 9/23/11), 69 So.3d 1164. She urges this court to affirm.

The record clearly shows that Gibbs rear-ended Ms. Bloxham, thus subjecting him to the presumption of negligence under R.S. 32:81 and Mart v. Hill , supra . However, on close review, the summary judgment evidence does not exclude all genuine issues of material fact. The first document is Gibbs's deposition, in which he states, "I was coming up in the lane behind the car and I was going to change lanes, and when I swerved over to change lanes it looked like she tried to change too, but I bumped the back of her car" (emphasis added). Attached to the deposition is Gibbs's incident report, which also states, "I swerved to miss her[;] she got in the same lane and I Bumped [her] car[.]" The only other document describing the incident is the official state crash report, which states, "The vehicles in front of him stopped suddenly and he could not stop fast enough to keep from hitting Vehicle # 1." In light of the leading driver's duty not to change lanes until ascertaining that such movement can be made safely, La. R.S. 32:79, we are constrained to find that these statements create a triable issue as to whether Ms. Bloxham's conduct immediately before the crash constituted comparative fault, if only a small amount.

Ms. Bloxham correctly shows that later in his deposition, Gibbs agreed with plaintiff's counsel that he was "not blaming anybody but" himself, and that Cummings, Gibbs's supervisor, gave a deposition expressly agreeing with this conclusion. However, on the motion for summary judgment, the court is not empowered to make credibility calls or decide between competing versions of events. Independent Fire Ins. Co. v. Sunbeam Corp. , supra ; Tatum v. Shroff , supra . Notably, this is not a case in which the defendant gave an incriminating deposition and, to avert a motion for summary judgment, swore a subsequent affidavit purporting to contradict his deposition. This court and others have held that the defendant cannot manufacture a genuine issue by filing an affidavit that merely contradicts his prior deposition. Row v. Pierremont Plaza LLC , 35,796 (La. App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied , 2002-1262 (La. 8/30/02), 823 So.2d 952 ; McCastle-Getwood v. Professional Cleaning Control , 2014-0993 (La. App. 1 Cir. 1/29/15), 170 So.3d 218 ; Chapital v. Harry Kelleher & Co., Inc. , 2013-1606 (La. App. 4 Cir. 6/4/14), 144 So.3d 75. By contrast, the discrepancy between Gibbs's factual account of the accident and his conclusory view of which party was responsible for it all occur in the same document-the original deposition. The court cannot disregard this under the guise of making a credibility call or exercising discretion. Such is not proper on the motion for summary judgment.

Finally, we would observe that Ebarb v. Matlock , supra , does not mean that summary judgment is appropriate in all rear-end cases. In response to the plaintiff's motion for partial summary judgment, the defendant in Ebarb filed an affidavit stating merely that he "had his vehicle under control, * * * he closely observed the preceding vehicle and * * * followed at a safe distance under the circumstances." We found that these conclusory allegations did not create a genuine issue, and they certainly did not allege specific facts as to plaintiff fault. Ebarb is therefore distinguished from the instant case.

CONCLUSION

For the reasons expressed, the motion for partial summary judgment is reversed and the case is remanded for further proceedings. Costs are to be paid by the plaintiff, Tammy Bloxham.

REVERSED AND REMANDED.